r- I, SP^SITY of CALJFORNL AT LOS ANGELES LIBRAKY PARLIAMENTARY PROCEDURE AND PRACTICE WITH AN INTRODUCTORY ACCOUNT OF THE ORIGIN AND GROWTH OF PARLIAMENTARY INSTITUTIONS DOMINION OF CANADA, JOHN GEORGE BOURINOT, CLERK OK TIIK HOUSR OF COMMONS OP CANADA. MONTEEAL: DAWSON BROTHEES, PUBLISIIEES 1884. 115978 Entered according to Act of Parliament of Canada In' Dawson Bkotjikes, in the Ofiice of the Minister of Agriculture, in the vear 1884. GAZETTE FRlXTlNt; COMPANY. MONTREAL. 00 PEEFACE. The object which the author has had constantly in view in compiling the present work is to give such a <^^ summary of the rules and principles which guide the r-» practice and proc(^edings of the Parliament of Canada as will •^ assist the parliamentarian and all others who may be con- cerned in the working of our legislative system. The — ( rules and practice of the Parliament and the Legis- *"* latures of Canada are, for the most part, originally derived .5 from the standing orders and usages of the Imperial Par- Z\ liament, but, in the- course of years, divergencies of practice '^ have arisen, and a great many precedents have been made ^ which seem to call for such a work as this. It has, more- L> over, been the w^ritor's aim, not only to explain as fully as possible the rules and usages adopted in Canada, but also to give such copious references to the best authorities, and particularly to the works of Hatsell and May, as will enable the reader to compare Canadian with British pro- cedure. A list of the authorities most frequently cited, with an explanation of the abbreviations used in citation, is appended for the convenience of those who may wish to follow out any question more in detail. It seemed proper, in order to a clearer comprehen- sion of the subject of the work, to preface it with an introductory chapter npon the origin and gradual de- velopment of parliamentary institutions in the Dominion. IV PREFACE. In so briel" a compass a summary of the salient ifaturcs only of the various constitutional (-hangos which have resulted in the present very liberal parliamentary system of Canada could be given. The author has also added, in the same chapter, a digest of the decisions of the judicial committee of the Privy Council and of the Supreme Court of Canada which bear upon the important question of the rela- tive jurisdictions of the rarliament and tin? local legisla- tures. While the work was passing through the press, other decisions were given which rendered a supplementary chapter necessary, and, consequently, the twenty-second chapter will be more conveniently considered immediately after the first, or introductory chapter. These decisions have necessarily been cited without remark, as facts to be taken into account by those who are engaged in the prac- tical work of legislation. House of Commoxs, Ottawa, 20th February, 1884. CONTENTS. CHAPTER I. IXTEODUCTIOX. PARLIAMENTARY INSTITUTIONS IN CANADA. I. Canada under the French Regime, p. 1. II. Governuient from 1700 to 1774, p. 5. III. Quebec Act, 1774, p. 9. IV. Constitutional Act, 1791, p. 13. V. Union Act, 1840, p. 24. VI. Federal Union of the Provinces- British North America Act, 1867, p. 38. VII. Constitution of the Gen- eral Government and Parliament, p. 48. VIII. Constitution of the Provincial Governments and Legislatures, p. 62. Organization of the North-West Territory, p. 72. IX. Disallowance of Provincial Acts, p. 76. X. Distribution of Legislative Powers, p. 81. XL Decisions of the Judicial Committee of the Privy Council and Supreme Court of Canada on questions of Legislative Jurisdiction, p. 85. XII. Position of the Judiciary, p. 100. Conclusion of Keview, p. 103. CHAPTER II. THE SENATE AND HOUSE OF COMMONS. I. Senators, yt. 105. II. Introduction of Senators, p. 109. III. The House of Commons, p. 110. IV. Election of IMembers, p. 111. V. Trial of Controverted Elections, p. 117. VI. Issue of "Writs, p. 123. VII. Dual Representation, p. 124. VIII. Independence of Parliament, p. 128. IX. Resignation of Members, p. 137. X. Introduction of 3Iem- bers, p. 141. XL Attendance of Members, p. 145. XII. ]\Iembers' Indemnity, p. 146. XIII. Expulsion and Disqualification of Mem- bers, p. 148. XIV. Suspension, p. 153. XV. Questions affecting Mem- bers referred to Select Committees, p. 154. XVI. Places in the House, p. 155. VI CONTENTS. CHAPTEPt III. THE SPEAKERS AND OFFICERS OF THE TWO HOUSES, . first seri(\s, wenj puljlishcd as ColjVieifs. En<^lish Law IJo])f)rts. — I)onj,'ias; Knaj)!) ; Perry and Knapj); Moeson and Wolsl">y ; Carrington and Kirwan ; ApjKjal Cases, .Judicial Committee of Privy Council (App. Cas.); Lord Kenyon (Lord Ken.); Strange; Taun- ton (Taunt.); Chitty; Law Journals (L. J.); Wilson (AVils.); Ru.ssell and Mylne (R. and M.); Espinasse (Esp.); East. Hale on P. — Institution, Power, and Jurisdiction of Parliament, by Lord Cliief Justice Hale. Hallam. — Constitutional History of England, by Henry Hallam ; Am. ed., ." vols, ISGL Hatsell. — Proccdonts of Proceedings in the House of Commons, by John Hatsell, 4 vols., 1818. Howe. — Letters and Speeches of the Hon. Joseph Howe, by W. Annand. Howells' St. Tr.— State Trials, by T. B. and T. J. Howells. Garneau. — History of Canada until the Union, by F. X. Garneau. Gray. — Confederation of Canada, by Hon. J. H. Gray. Grey. — Colonial Policy of Lord John Russell's administration, by Earl Grey, 2 vols., 1853. Grey. — Grey's Debates after the Restoration, 10 vols. Hearn. — Government of England, by W. E. Hearn. Jefferson. — Jefferson's Manual of Parliamentary Practice, published periodically with the rules of the Congress of the United States. Leg. Ass. J. and Leg. Coun. J. — Journals of the Legislature of Canada, 1841-1866. Lex Pari. — Lex Parliamentaria- Lindsey. — Life and Times of "\V. Lyon ]MacKenzie, bj' Charles Liiidsey. L. C. J. — Lower Canada Jurist. L. C. R. — Lower Canada Reports. L. N. — Legal News, Montreal, edited by James Kirby. Lodge. — A Short History of the English Colonies in America, by H. Cabot Lodge. Low. Can. J. — Journals of the Legislature of Lower Canada. 1792-1837. Lord Durham's R. — Lord Durham's Report on the State of Canada, 1839. Lords J. — Journals of the House of Lords. May.— Constitutional History of England, by Sir T. E. May, 4 vols., 6th ed. A Treatise on the Law, Privilege-s, Proceedings and ITsage of Par- liament, by Sir T. Erskine May, 9th ed., 1883. Min. of P. — Minutes of Proceedings of the Senate. Mirror of P.— Mirror of Parliament, 1828-1841. Murdoch. — History of Xova Scotia, by B. Murdoch, 2 vols. Palgrave. — Chairman's Handbook, by Reginald F. D. Palgrave, clerk- assistant of the English House of Commons. Also, the House of Com- mons : Illustrations of its History and Practice, by the same author. Parkman. — Old Regime in Canada, by Francis Parkman. LIST OF AUTHORITIES CITED. XV Pari. Hist. — Parlianientary History of Englaiul, lOGG-1803. C'obl)e.tt's and Hansard's Parliamentary Debates follow this work. Pari. Reg. — Parliamentary Register, 2 series. Pari. Deb. — Canadian Parliamentary Debates until 1875, compiled in the Parliamentary Library. Pug. and Bur. — Pugsley and Burbidge's Reports of New Brunswick Cases. R. S. 0.— Revised Statutes of Ontario, 1877. Scrofie. — Life of Lord Sydenham, l)y G. Poulett Scrope. Sedgwick. — Rules of the Interpretation and Application of Statutory and Constitutional Law, by Theodore Sedgwick, 1874. Sen. Hans. — Canadian Hansard, since 1870. Sen. .L — Journals of the Senate of Canada, 1867-1883. Sen. R. and Com. R. — Rules and Orders of the Senate and House of Com- mons of Canada, 1884. Smith's Digest. — Constitution, INIanual and Digest, by H. Smith, Journal clerk of the House of Representatives of the U.S. Sp. Coun. — Journals of the Sj^ecial Council of Lower Canada, 1838-1840. S. 0. — Standing Orders of the Lords and Commons of England, 1883. Stephen. — Commentaiies on the Laws of England, by H. J. Stephen, 7th ei. Taswell-Langmead. — English Constitutional History, by J. P. Taswell- Langmead, 2nd ed., 1881. Taylor. — Are Legislatures Parliaments ? by Fennings Taylor. Todd. — Parliamentary Government in England, by Alpheus Todd, 2 vols. Parliamentary Government in the Colonies, by Alpheus Todd, 1 vol. Private Bill Practice, by Alfred Todd. Turcotte. — Canada sous I'Union, bj' L. P. Turcotte. Upp. Can. J. — Journals of the Legislature of Upper Canada, 1792-1840. U. C. C- P. — Upper Canada Commons Pleas Reports. U. C. Q. B. — Upper Canada Queen's Bench Reports. V. and P. — Votes and Proceedings of the House of Commons. Waplcs. — Hand-book of Parliamentary Practice, by Rufus Waples, 1883. CHAPTER I. INTRODUCTION. PARLIAMENTARY IXSTITUTIOXS IX CAXADA. I. Canada under the French Regime. — II. Government from 1760 to 1774. — III. Quehec Act, 1774. — IV. Constitutional Act, 1791. — V. Union Act, 1840. — VI. Federal Union of the Provinces — British Nortli America Act, 1867. — VII. Constitution of the General Government and Parliament. — VIII. Constitution of the Provincial Governments and Legislatures — Organization of the North-"\Vest Territory. — IX. Dis- allowance of Provincial Acts. — X. Distribution of Legislative Powers. — XL Decisions of the .ludicial Committee of the Privy Council — and of the Supreme Court of Canada on questions of Legislative Jurisdiction.— XII. Position of the Judiciary — Conclusion of RevicAV. I. Canada under the French Regime. — The hi.story of parlia- mentary institutions in Canada rommences towards the close of the eighteenth century. AVhilst the country remained in possession of France, the inhabitants were never represented in legislative assemblies and never exercised any control over their purely local aifairs by frequent town meetings. In this respect they occu- pied a position very different from that of the English colonists in America. The conspicuous features of the New England sy.stem of government were the extent of popular power and the almost entire independence of the parent state in matters of provincial interest and im- portance. All the freemen were accustomed to assemble regularly in township meetings, and take part in the debates and proceedings. The town, in fact, was " the political unit." and was accordingly represented in the 1 2 rAmJAMENTARY IXSmTTIOXS IX (JAXAJ)A. legislature of the colony. Legislative assemblies, indeedV were the riUe in all the old colonies of England on this continent — even in proprietary governments like that of Maryland.' On the other hand, in the French colony, a legislative system was never enjoyed by the inhabi- tants. The first government which was established by kSamnel Champlain, the founder of Quebec, was invested with large authority." For over half a century, whilst the country was practically under the control of trading corporations, the governor exercised all the powers of civil and military government, necessary for the security and peace of the colony. Though he had the assistance of a council, he was under no obligation whatever to follow its advice, on all occasions. After some years' experience of a system of government which made the early governors almost absolute, Colbert effected an entire change in the administration of colonial affairs. From 1663, the govern- ment of Canada was brought more directly under the con- trol of the king, and made more conformable to the requirements of a larger population. But in all essential features the government resembled that of a French pro- vince. The governor and intendant were at the head of affairs and reported directly to the king.'^ Of these two high functionaries, the governor was the superior in posi- tion ; he commanded the troops, made treaties with the Indians, and took precedence on all occasions of state. The ^ Lodge's English Colonies in America, pp. 413, 414. ■^ I. Garneau, 87. The " Instructions " in the early commissions ordered : " And according as affairs occur, you shall in person, with the advice of prudent and capable persons, prescribe. — subject to our good pleasure. — all laws, statutes and ordinances ; in so far as they may con- form to our own, in regard of such things and concernments as are not provided for l)y these presents." ^ The governor Avas styled in his commission, " Gouverneur et Lieutenant-General en Canada, Acadie, Isle de Terre Neuve, et autres pays de la France Septentrionale ;" and the intendant, " Intendant de la Jus- tice, Police et Finances en Canada," etc. I. Doutre et Lareau, Histoire du Droit Canadien, 130. CAXADA UXDER THE FRENCH REGIME. 3 intendaiit came next to him in rank, and by virtue of his large powers exercised great influence in the colony. He presided at the council, and had control of all expenditures of public money. His commission also empowered him to exercise judicial functions, and in certain cases to issue ordinances having the force of law whenever it might be necessary.^ When the king re-organized the government of Canada in the month of April, 1663, he decreed the establishment of a supreme council at Quebec.- This body, afterwards called the superior council, consisted of the governor, the bishop, the intendant and five councillors, subsequently increased to seven ^ and eventually to twelve.' This council exercised legislative, executive and judicial powers. It issued decrees for the civil, commercial, and financial government of the colony, and gave judgment in civil and criminal causes according to the royal ordinances and the coutume de Paris, besides exercising the function of registration borrowed from the Parliament of Paris. An attorney general sat in the council, which was also em- powered to establish subordinate courts throughout the colony. From the decisions of the intendant or the council there was no appeal except to the king in his council of state. Local governors were appointed at Montreal and Three Pivers, but their authority was very limited ; for they were forbidden to fine or imprison any person with- ^ See Commissions of Intendants in Edits et Ordonnance^, III. ■^ Edit de criation du conseil Souverain de Quebec, lb. I. 37. ^ In 1675, when the king confirmed the decree of 1663 (I. Ih. S3,) and revoked the charter of the West India Co-, to which exchisive trading pri- vileges had been conceded in 1604. I. Doutre et Lareau, Ilistoire du Droit Canadion, 118, 184. * In 1703. The councillors were rareh' changed and usually held office for life. They were eventually chosen by the king from the inha- bitants of the colony on the recommendation of the governor and inten- dant. The "West India C"o. made nominations for some years. The lirst council, after the edict of 16(53, was selected by the governor and bishop, but practically by the latter, Monseigneur Laval. Parkman, pp. 135-6. 4 I'A ULIA MKXTAR Y INSTITUTIONS IN CANADA. out obtaining the necessary order from Que})ec. Neither the seig-ne/ir nor the habitant had practically any voice ^whatever in the governinent ; and the royal governor called out the militia whenever he saw fit, and placed over it what officers he pleased. Public meetings for any purpose were jealously restricted, even when it was necessary to make parish or market regulations.' No semblance of municipal government was allowed in the town and village communities. Provision had been made in th(^ constitution of 1663 for the election of certain municipal officers called syndics, to note any infraction of public rights in the large communities ; but, after a few futile attempts to elect such functionaries, the govern- ment threw every obstacle in the way of anything like a municipal system, and the people finally were left without any control whatever over their most trivial local affairs.^ The very social fabric itself rested on feudal principles modified to suit the condition of things in a new countrv. The habitant held his lands on a tenure which, however favourable to settlement, was based on the acknowl- edgment of his dependence on the seiiineur. But at the same time the lord of the manor, and the settler on ' II ne laisse pas d'etre de tres grande consequence de ne pas laisser la liberte au peuple de dire son sentiment. (Meules au ^linistre, 1685.) Even meetings held b}^ parishioners under the eye of the cure to esti- mate the cost of a new church seem to have required a special license from the intendant. (Parkman, The Old Regime in Canada,}). 280.) IS'ot merely was the Canadian colonist allowed no voice in the government of his province or the choice of his rulers, but he was not even j)e.rmitted to associate with his neighl)our for the regulation of those municipal afi'airs -which the central authority neglected under the pretext of managing. Lord Durham's E., p. 10. ^ Doutre et Lareau, Histoire du Droit Canadien, 138. The regulations of 1647 show that such officers existed in Quebec, ]\Iontreal and Three Rivers, but they had ceased to be appointed by 1661. The first elections held in 1663 were allowed to miscarry, and from that time forward, says Garneau, "There was no further question of free municipal government in Canada, so long as French dominion endured, although a nominal syndicate existed for a short time after that now under review." I. Gar- neau, 189-90. - GOVERyMEM EEOM 1760 TO 1774. 5 his estate, were on an equal footing to all intents and inirposes as respects any real inlinence in the administra- tion of the public afliiirs of the colony. The very name of Parliament had to the Fn'uch colonist none of that signi- ficance it had to the Englishman, whether living in the parent state or in its dependi-ncies. The word in France -was apj^ .ied only to a body whose ordinary functions were of a judicial character, and whose very decrees bore the impress continually of royal dictation. In Canada, as in France, absolutism and centralization were the principles on which the government was conducted. The king administered jiublic atiairs through the governor and intendant, who reported to him as frequently as it was possible in those times of slow communication between the parent state and the colony.^ The country prospered or languished, according as the king was able or disposed to take any interest in its affairs ; but even under the most favourable circumstances it was impossible that Canada could make any decided political or material progress with a system of governmi'iit which centralized all real authority several thousand miles distant.-' n. Government from 1760 to 1774.— Canada became a pos- session of Great Britain by the terms of capitulation signed on the 8th of September, 1700.' By these terms great Britain bound herself to allow the French-Canadians the free exercise of their religion ; and certain specified frater- nities, and all communities of reJigieuses were guaranteed ' " The. -wliole system of adinini.stration centred in tlie kin;jr, -who, to borrow the fornmla of his edicts, 'in the fulhiet^s of our i)ower and our certain knowledge,' was supposed to direct the whole niat'hine, from its liigliest functions to its pettiest intervention, in private atiairs." Park- man, Old Regime, pp. 285-G. ^ For accounts of system of government in Canada till the Conquest, Be« I. Garneau, book iii., chap. iii. Parkman's Old Regime in Canada, chap. xvi. Reports of Attorney-General Thurlow (1773), and Solicitor- General "Wedderburne (1772), cited by Cliristie, vol. i., chap. ii. •' Atty.-Gen. Thurlow ; Christie'.. Hist, vol- i., p. 48. II. Garneau, 70. J '6 VATJ. I A MEXTA R Y INSTITUTIONS IN CAN A DA. the possession of Iheir g-oods, c onstitutioiis aud privileges, but a similar favour ^vas denied to the Jesuits. Francis- cans or Ivecollets and Sul])icians until tlie King should be consulted on the su])ject. The same reservation was made with respect to the j^arochial clergy's tithes. These terms were all included in the Treaty of Paris, signed on the 10th of February, 1763, by which France ceded to G-reat Britain, Caiuida, and all the Laurentian isles, except St. Pierre and Miquelon, insignificant islands off the southern coast of Newfoundland, which were recjuired for the prosecution of the French fisheries. In this treaty G-reat Britain bound herself to allow the Canadians th(» free exercise of their religion, but no reference was made in the document to the laws that Avere to j^revail throughout the concjuered country.^ For three years after the conquest the government •of Canada was entrusted to the military chiefs, stationed at Quebec, Montreal and Three Rivers, the headquarters of the three departments into Avhich General Amherst divided the country.' Military councils were established to administer law, though as a rule the people did not re- sort to such tribunals, but settled their difficulties among themselves. In 1763, the King, George III., issued a j)ro- clamatioii establishing four new governments, of which '^Quebec was one.^ Labrador, from St. John's Eiver to Hud- son's Bay, Anticosti, and the Magdalen Islands, were placed under the jurisdiction oiNewfoundland, and the islands of St. John (or Prince Edward Island, as it was afterwards called), and Qsi\)e Breton (He Ivoyale), with the smaller islaiids adjacent thereto, were added to the government of 'jN'ova Scotia. Express power was given ' Atty.-Gt?.n. Tliurlow ; Christie, vol. i., p. 48. Miles, History of Canada under French Regime, app. xvi. ■^ These three divisions corresponded to the old ones under the French regime. General Murray was stationed at Quebec; General Gage at Montreal; Colonel Burton at Three Rivers. II. Garneau, 82. ^ The others were East Florida, AVest Florida, and Grenada. The boundaries of the several governments are set forth in the proclamation. GOVERXMEXT FROM 1760 TO 1774. 7 to the governors, iu the letters -patent by which these goTernmeuts were constituted, to summon general assem- blies, with the advice and consent of his Majesty's Council, " in such manner and form as was usual in those colonies and provinces which were under the king's immediate government." Authority was also given to the governors, with the consent of the councils, and the representatives of the people, to make laws, statutes and ordinances for the peace, welfare and good government of the colonies in question. The governors were also empowered to establish, with the advice of the councils, courts of judicature and public justice, for the hearing of civil and criminal causes, according to law and equity, and, as near as may be, agreeable to the laws of England, with the right of appeal in all civil cases to the privy council.' Gi-eneral Murray,- who was appointed governor of Quebec on the 21st November, 1763, was commanded to execute his office according to his commission, and accom- panying instructions or such other instructions as he should receive under his Majesty's signet and sign manual, or by his Majesty's order in council, and accord- ing to laws made with the advice and consent of the council and assembly — the latter to be summoned as soon as the situation and circumstances of the province should admit. The persons duly elected by the majorit}' of the freeholders of the respective parishes and places were required, before taking their seats in the proposed assem- Mies, to take the oaths of allegiance and supromacv, and > l^nxlaination of Ttli October, 17()o. Atty.-General Tlmrlows Report ; Christie, V(jl. i., \>i,. 40-30. In the debate.s on the Qucliec Bill, the vague- ness of this proclaniation was shari)ly criticised, and no one apjxjars to have Ijeen willing to assume the resijonsibility of having framed it for the King. Atty.-Gen. Thurlow acknowledged that " it certainly gave no order whatever with resi^ect to the constitution of Canada; it certainly was not a finished composition,'' etc. Cavendish's Debates, p. 20. ^ Sir Jetl'ery Amherst was in reality the first, and Gen. 31 array the second, go vernur-general of Canada. II. Garncan, ^7 ; siqira p. 0. 8 PA RLIA MIC.XTA R Y JXSTfTCTIOXS IN CAXA DA. the declaration a,c,aiiist transubstantiation.^ All laws, in conformity with the letters-patent, were to b(^, trans- mitted in three months to the king, for disallowance or approval. The governor was to have a negative voice, and the power of adjourning, proroguing and dissolving all general assemblies.^ No assembly, however, ever met as the FrcMich-Canadian population were unwilling to take the test oath,' and the government of the province was carried on solely by the governor- general, with the assistance of an executive council, composed in the first instance of the two lieu- tenant-governors of Montreal and Three Rivers, the chief justice, the surveyor general of customs, and eight others chosen from the leading residents in the colony.^ From lt63 to ltt4 the province remained in a very unsettled state, chiefly on accoimt of the uncertainty that prevailed as to the laws actually in force. The " new subjects," or French-Canadians, contended that justice, so far as they were concerned, should be administered in accordance with their ancient customs and usages, by which for a long series of years their eivil rights and property had been regulated, and which they also maintained were secured to them by the terms of the capitulation and the subsequent treaty. On the other hand, " the old," or English sulyects, argued from the proclamation of 1763 that it was his Majesty's intention at once to abolish the ^ The oaths of allegiance, supremacy, and abjuration were formerly required to be taken by every member in the English Commons under various statutes. By 29 and 30 Vict., c. 19, and 31 and 32 Vict, c. 72, a single oath was prescribed for members of all religious denominations ; May, 20.5. 30 Car. II., st. 2, c. 1, retpiired members of both houses to sub- scribe a declaration against transubstantiation, the adoration of the Virgin, and the sacrifice of the mass. Taswell-Langmead, Const. Hist, 447, 6b2. '^Atty.-Gen. Thurlow, in Christie, vol. i., pp. 50-1. ^ It was conxoked pro forma, but never assembled. II. Garneau, 92, 108. * II. Garneau, 87-8. Only one native French-Canadian was admitted into this council. QUEBEC ACT, 1774. 9 old establisliL'd juri.sprndonce of the country, and to establish English law in its place, even with respect to the titles of lands, and the modes of descent, alienation and settlement.' m. Quebec Act, 1774— The provinc»> of Quebec remained for eleven years under the system of g'overnment estab- lished by the proclamation of 17(33. In 1774 Parlia- ment intervened for th(^ first time in Canadian affairs and made important constitutional chang-es. The previous constitution had been created by letters-patent under the great seal of Great Britain, in the exercise of an un- questionable and undisputed prerogative of the Crown. The colonial institutions of the old possessions of G-reat Britain, now known as the United States of America, had their origin in the same way." But in 1774, a system of government was granted to Canada by the express authority of Parliament. This constitution was known as the Quebec Act,"' and greatly extended the boundaries of the province of Quebec, as defined in the proclamation of lt63. On one side, the province extended to the fron- ' Atty.-Gen. T]iurl()W,in Christie., vol. i.,pp. 51-6:]; also, Eeport of Atty.- (ieii. Yorke, and Sol.-Cien. LeGrey, 14th April, 1700, quoted by Thurlow, .").'). The latter able lawyer expressed himself very forcibly as to the rights of the French-Canadians: "They seem to have been strictly entitled by the jn>s gcvtium to their property, as thi>y possessed it upon the capitulation and treaty of peace, together with all its (pialities and incidents by tenure or otherwise, and also to their i)ersonal liberty. • • • • It seems a necessary consequence that all those laws by which that property was created, defined, and secured, must be continued to them. To introduce any other, as Mr. Yorke and Mr. DeGrey emi>hati- cally expressed it, tends to confound and subvert rights, instead of suj)- jiorting them." Jh. 59. - Eeport of Committee of Council, Lst May, 1849, app. A., Vol. ii. Earl Grey's Colonial I'olicy. ^ 14 Geo. III., c. 83, " making more ett'ectual provision fur the govern- ment of the province of Quebec, in North America." The bill, on the motion for its passage, with amendments, in the House of Commons, was carried by 50 yeas to 20 nays. In the House of Lords it had a majority of 19; Contents 20, Kon, Con. 7. Cav. Deb. iv., 290. 10 J'AJiLLlM J:\TAJiY IXSTlTUTlOy^ IX CAXAUA. tiers of Now England, Pciinsylvaina, New York province, the Ohio, and the Icl't bank of the Mississippi ; on the other, to the Hudson's Bay Territory. Labrador, and th<' ishmds annexed to Newfoundhmd by the proclamation of 1*7<)8, were made part of the province ot Quebec. The ])ill was introduced in the House of Lords on the 2nd of May, 1774, by the Earl of Dartmouth, then colonial secretary of state, and passed that body without opposi- tion. Much discussion, however, followed the bill in its passage through the House of Commons, and on its return to the Lords the Earl of Chatham opposed it " as a most cruel, opi^ressive, and odioiis measure, tearing up justice and every good principle by the roots." The opposition in the province was among the British inhabitants, who sent over a petition for its repeal or amendment. Their principal grievance was that it substituted the laws and usages of Canada for English law.^ The Act of 1774 was exceedingly unpopular in England and in the Enalish- speaking colonies, then at the commencement of the Revolution.^ Parliament, however, appears to have been influenced by a desire to adjust the government of the province so as to conciliate the majority of the people'. In the royal speech closing the session, the law was charac- terized as " founded on the plainest principles of justice and humanity, and would have the best effect in quieting the minds and j)romoting the happiness of our Canadian subjects."* ^ Cav. Deb., preface, iii.-vi. ^ The American Congress, in an address to the people of Great Britain, September 5th, 1774, declared the act to be "unjust, unconstitutional, and most dangerous and destructive of American rights." (I. Christie, S-9.) In 1779, Mr. Maseres, formerly attorney-general of Quebec, stated that " it had not only ofiended the inhabitants of the province, but alarmed all the English provinces in America." Cav. Deb., a'. ^ Garneau, who represents French Canadian views in his history, acknowledges that "the law of 1774 tended to reconcile the Canadians to British rule." II., 125. * Cav. Deb., iv. QUEBEC ACT, 1774. 11 The new constitution came into force in October, 1774. The act sets forth among- the reasons for k^gislatiou that the provisions made by the proclamation of 17ly, but Lord ]*\orth exi)res.secl his opinion that it was not wise for a Protestant government to delegate its powers to a Cathohc assembly. Cav. Deb., 245-8. -A supplementary bill, passed in the session of 1774 (14 Geo. III., c. 88), provided a revenue for defraying expenses of administration of justice and civil government by imposing duties on spirits and molasses, in place of old French colonial custom dues. The deficiency in the exiM?.nses was supplied from the imperial treasury. I. Christie, 1-1*. 1 2 IWni.lAMENTATlY lySTITCTIOXS IN CANADA. .ivil liiihts, r.'cours.' should Ix' had to the French civil l)ro<(>dure, whilst the criminal law of England should o])ta.in to the ex0. ^ Introduction to Census Statistics of 1871, vol. iv., xxxviii.-xlii. * The poi)ulation of New France in 1760 was estimated at l)etween 60,000 and 70,000, a considerable emigration to l>ance having taken 14 I'A /.'/- /. I Mi:.\T. I A' )■ ISSTITl 'T/OXS IN CANADA. livo judicial dislritls in Uppor and Lower Canada, in order 1() mcrt ihc requirements of the new population/ It had by ihis time b<'come th(^ opinioii of Eng-lish states- men that it would be advisable to make further constitu- tional changes in the province, more consonant with the wishes of its large population, of which the British element now formed a very important part. The question of representative government agitated the province from 1*783 to 1790, and petitions and memorials, embodying the conflicting views of the political parties into which the jieople were divided, were pr(^s(Mited to the home govern- ment, which decided to deal with the question, after receiving a report from Lord Dorchester, who had been authorized to make full inquiry into the state of the colony. In the session of 1^91, G-eorge III. sent a message to the House of Commons declaring that it would be for the benefit of the people of the province if two distinct governments were established therein under the names of vyLower Canada and Upper Canada.- The result was the passage through rarliament of the Constitutional Act of 1'791,'* which was introduced in the House of Commons. l>lace. after the conquest. In 1775, the pciitulation of all Canada was estimated at 90,000. In 1790, Nova Scotia had probably 30,000 inhabitants; 1793, Cape Breton, 2,000; St. John or Prince Edward Island, 4,-500 in 1 796 ; New Brunswick had 35,000 by 180(5.— (Census Statistics of 1871, vol. iv.) Others estimate the population of Canada in 1790 at only 1,35,000. II. ( iarneau, 205. 'The district in the province of Quebec was called Gaspe; the other four in the upjier section were called Lunenburg, Mecklenburg, Nassau and Hesse, after great houses in Germany, allied to the royal family of England. Lunenburg extended from the Ottawa to the Gananoque ; Mecklenburg, from the Gananoque to the Trent ; Nassau, from the Trent to Long Point, on Lake Erie ; and Hesse embraced the rest of Canada to the St. Clair. I. Doutre et Lareau, Histoire du Droit Canadien, 744. ' March 4, 1791. L Cliristie, 08-9. •' 31 Geo. III., c. 31. " In Upper and Lower Canada the three estates of governor, council and assembly were established, not by the Crown (as in the case of tlie old colonies) but by the express authority of Parlia- ment, Tins deviation from the general usage Avas uuavoidal.ile, because- CONSTITUTIONAL ACT, 179 J. 15 by Mr. Pitt. This act created much discussion in Parlia- ment and in Canada, where the principal opposition came from the British inhabitants of Lower Canada.' Much jealousy alreMy existed between the two races, who were to be still more divided from each other in the course of the oi)eration of the new constitution. The authors of the new scheme of goTernment, however, were of opinion that the division of Canada into two provinces would have the effect of creating harmony, since the French would be left in a majority in one section, and the British in the other.- The Quebec Act, it was generally admitted, had not promoted the prosperity or happiness of the people. Grreat uncertainty still existed as to the laws actually in force under the act. Although it had been sixteen years in operation, neither the judges nor the bar clearly understood the character of the laws of Canada previous to the concj^uest. No certainty existed in any matters of litigation except in the case of the possession, transmission, or alienation of landed property, where the custom of Paris was cpiite clear. The Canadian courts sometimes admitted, and at other times rejected, French law, without explaining the grounds of their determina- it was judged right to impart to the Eoman Catholic population of the Canadas privileges which, in the year 1791, the Crown could not have legally conferred upon them. There is also reason to helieve that the settlement of the Canadian constitution, not bj' a grant from the Crown merely, but in virtue of a positive statute, was regarded by the American loyalists as an important guarantee for the secure enjoyment of their political franchises." Eep. of Com. of Council, 1st May, 1849; Earl Grey's Colonial Policy, ii. vol., app. A. ^ Mr. Adam Lymburner, a Quebec merchant, was heard on the 23rd March, 1791, at the bar of the House of Commons against tlie bill. I. Christie, 74-114. '■^ Mr. Pitt said : " I hope this separation will i)ut an end to the com- petition between the old French inhabitants and the new settlers from Britain and the English Colonies." Edmund Burke was of opinion tliat " to attempt to amalgamate two populations composed of rai-es of men diverse in language, laws, and customs, was a complete absurdity." For debates on bill see Eng. Hans., Pari. Hist., 2S vol., p. 1271 ; 29 vol., pp. 104, 359^59, 0.55. II. Garneau, 198-203. I. Christie, (Ki-IH. V Kj rM:Li.\\u:sr.\iiY iss'iiriTioxs i.\ casada. tioii. Ill nol ;i lew ciiscs, llic ju(lu<'.s were confessedly ignorant of Fr<'nch Canadian jurisprudence.' Th(^ Constitutional Act of IVM established in each .province a lenishilive council and assenil)ly, ^ith power to make laws. The Iciiislative council was to be appointed 1)V ih<' kini>- for Hie — in Upper Canada to consist of not less than seven, and in Lower Canada of not less than fif- teen members. Members of the council and assembly must be of the age of 21, and either natural -born subjects, or naturalized by act of Parliament, or subjects of the Crown- ])y the conquest and cession of Canada. The soA'ereign miffht, if he thought i^roper, annex hereditary titles of honour to the riuht of being summoned to the legislative ( ouncil in either province.- The speaker of the council was to be appointed by the governor-general. The whole number of members in the assembly of Upper Canada was not to be less than sixteen ; in Lower Canada, not less than fifty ^ — to be chosen by a majority of votes in either case. The limits of districts returning repre- sentatives, and the number of representatives to each, were fixed by the governor-general. The county mem- bers were elected by owners of lands in freehold, or in fief or roture, to the value of forty shillings sterling a ' I. Chri.stie, 67. Mr. Lymburner, lb. 77-7!) ; Report on Administra- tion of Justice, 1787. II. Oarneau, 189-90. - No titles were ever conferred under the authority of the Act. Colonel Pepi:)eren was the first American colonist who was made a baronet for his services in the capture of Louisbourg, 1745. Such distinctions were very rare in Canada during the yeare previous to confederation. Chief Justices James Stuart and J. B. Robinson were both made baronets in the early times of Canada. But, since 1807, the Queen has conferred sjxicial marks of royal favour on not a few Canadians of merit. (Se^. Todd Pari. Govt, in the Colonies, 232 et seq.) The Order of St. Michael and St. George was expressly enlarged Mith the view of giving an Imi^erial recognition of the services of distinguished colonists in diflerent parts of the Empire. ^ Mr. Fox was of opinion that the assembly in Lower Canada should have at least one hundred members ; he was also in favour of an elective legislative council. CONSTITUTIONAL ACT, 1791. lY year, over and above all rents and charges payable out of the same. Members for the towns and townships were elected by persons having a dwelling house and lot of ground therein of the yearly value of =£5 sterling or upwards, or who having resided in the town for twelve months, previous to the issue of the election writ, should have bona fide paid one year's rent for the dwelling house, in which he shall have resided, at the rate of <£10 sterling: a year or upwards. No legislative councillor or clergy- man could be elected to the assembly in either province. The governor was authorized to fix the time and place of holding the meeting of the legislature, and to prorogue^- and dissolve it whenever he deemed either course expe- dient ; but it was also provided that the legislature was to be called together once at least every year, and that ^- each assembly should continue for four years, unless it should be sooner dissolved by the governor. It was in the power of the goA^ernor to withhold as well as give the royal assent to all bills, and to reserve such as he should think fit for the signification of the pleasure of the Crown. The British Parliament reserved to itself the right of providing regulations imposing, levying and f.^^/^* collecting duties, for the regulation of navigation and commerce to be carried on between the two provinces, or between either of them and any other part of the British dominions or any foreign country. Parliament also - reserved the power of appointing or directing the payment of duties, but at the same time left the exdusiA'e appor- tionment of all moneys levied in this way to the legisla- ture, which could apply them to such public uses as it might deem expedient. It was also provided in the new constitution that all public functionaries, including the governor-general, should be appointed by the Crown, and removable at the royal pleasure. The free exercise of the Eoman Catholic religion was guaranteed permanently. The king was to have the right to set apart, for the use of the Protestant clergy in the colony, a seventh part of 2 18 I'A R L I A .)fENTA R Y INSTITUTIONS IN CANA DA. all uiirlcaivd crowii-Uiiids. The governors might also be empowered to erect parsonages and endow them, and to present incumbents or ministers of the Church of England, and whilst i)ower w^as given to the provincial legislatures to amend the provisions respecting allotments for the support of the Protestant clergy, all bills of such a nature could not be assented to until thirty days after they had been laid belore both houses of the Imperial Parliament.' The governor and executive council were to remain a court of appeals until the legislatures of the provinces might make other provisions.^ The right of bec[ueathing property, real and personal, was to be absolute and unre- stricted. All lands to be granted in Upper Canada were to be in free and common socage, as well as in Lower Canada, when the grantee desired it. English criminal law was to obtain in both proA'inces. A proclamation w^as issued on the 18th of November, 1791, bringing the act into force on the 26th of December, 1'791.^ On the 7th of May, 1792, Lower Canada was di- vided into fifty electoral districts, returning altogether fifty members. The legislature of that province was called together by proclamation of the 80th of October, and met for the first time accordingly at Quebec on the l7th of December, 1792. The legislati^-e council w^as com- posed of fifteen members.^ The government of Upper Canada was organized at Kingston in July, 1792, when ' The intent of these provisions was to preserve the rights and interests of the established Church of England in both provinces from invasion by their respective legislatures. I. Christie, 122. See infra, p. 32, et seq. ^ An ordinance of the province of Quebec had so constituted the Executive, provision was made subsequently as required by the Act. •' By the lieutenant-governor, General Alured Clarke. The governor- general, Lord Dorchester, was absent in England. This proclamation set forth the division line between the provinces as stated in the order of council of the previous August— the Ottawa River being the line as far as Lake Temiscamingue. I. Christie, 124. * Hon. W. Smith, chief justice, was appointed speaker of the legislative council of Lower Canada ; J. A. Panet was elected speaker of the legisla- tive assembly. See I. Christie, 126-8., where names of members of both COXSTITUTIOXAL ACT, 1791. 19 the members of the executive and legislative councils ■were sworn and v^^rits issued for the election of the assembly. The first meeting of the legislature of Upper Canada — with seven members in the legislative council and sixteen in the assembly — was held at Newark, (the old name of Niagara) on the 17th of September, 1792, and was formally opened by Lieutenant-Grovernor Simcoe.' Both legislatures even in those early times of the pro- vinces, assembled with all the formalities that are ob- served at the opening of the Imperial Parliament." The rules and orders adopted in each legislature were based, as far as j)racticable in so new a country, on the rules and usages of its British prototype.'^ The Constitutional Act of 1791 was framed with the avowed object of " assimilating the constitution of Can- ada to that of Grreat Britain, as nearly as the difference arising from the manners of the people, and from the present situation of the province will admit. "^ Houses are given. The legislature met for some j'ears in the building known as the old Bishop's Palace, situated between the Grand Battery and Prescott Gate. 1 Hon. W. Osgoode, chief justice, speaker of legislative council ; W. 3Iacdonnell, speaker of legislative assembly. The first me-eting was in a rude frame house, about half a mile from the village — it was not un- usual for the members to assemble in the open air. (Scadding's Toronto, p. 29.) The legislature of Upper Canada was removed to York, now Toronto, in 1797 — that town having been founded and named by Governor Simcoe in 1795. ("Withrow, 292.) The provincial legislature met in a wooden building on what is now known as Parhamcnt street. Scadding's Toronto, pp., 26-7. '^ The Duke de Rochefoucauld-Liancourt, who was present at an " oix>n- ing" in 1795, at Newark, gi\es a brief account of tlie ceremonial observed even amid the humble surroundings of the first Parlianaent. See vol. ii., p. 88. ^ Chap, v., infra. * Despatch of Lord Grenville to Lord Dorchester, 20th Oct., 1789, given in App. to Christie, vol. vi., pp. 16-2(i. Lt.-Governor Simcoe, in closing the first session of the legislature of Upjier Canada, said that it was the desire of the imi^erial government to make the new constitutional system, " an image and transcript of the British ronstitution." See Journals of U. C, J. 792 ; E. Commons Papers, 1839, vol. 33, p. 106. 20 J'ARL/AMJ:.\TAin- IXSTITCTIOXS IN CANADA. For some years alter the inauguration of the new con- stitution, jwlitical matters proceeded with more or less liarmony, ])ut eventually a conflict arose between the governors and the representatives in the assembly as well as between the latter and the upper house, which kept the people in the different provinces, especially in Lower Canada, in a stati^. of continual agitation. In Upper and Lower Canada the official class was arrayed, more or less,. with the legislative council against the majority in the assembly. Li Lower Canada the dispute was at last so aggravated as to prevent the harmonious operation of the constitution. The assembly was constantly fighting for the independence of Parliament, and the exclusive con- trol of the supplies and the civil list. The control of " the casual and territorial revenues " was a subject which provoked constant dispute between the crown officials and the assemblies in all the provinces. These revenues were not administered or api^ropriated by the legislature, but by the governors and their officers. At length, when the assemblies refused supplies, the executive government availed itself of these funds in order to make itself independent of the legislatiire, and the people through their representatives could not obtain those reforms which they desired, nor exercise that influ- ence over officials which is essential to good government.' The governor dissolved the Quebec legislature with a fre- quency unparalleled in political history, and was per- sonally drawn into the conflict. Public officials were harassed by impeachments. The assembly's bills of a financial, as well as of a general character, were frequently rejected by the legislative council, and the disputes between the two branches of the legislature eventually rendered it impossible to pass any useful legislation. In this contest, the two races were found as a rule, arrayed ' ^Mr. "\V. ^lacdougall : Mercer r. Attorney-General for Ontario, Canada Sup. Court Rep., vol. v., pp. 545-6, CONSTITUTIONAL ACT, 1791. 21 against each other in the bitterest antagonism.^ Appeals to the home government were very common, but no satis- factory results were attained as long as the constitution of 1/791 remained in force. In Upper Canada the finan- cial disputes, which were of so aggravated a character in the lower province, were more easily arranged ; but never- theless a great deal of irritation existed on account of the patronage and political influence being almost exclusively in the hands of the official class, which practically con- trolled the executive and legislative councils.- In Nova Scotia, the majority of the house of assembly "were continually protesting against the composition of the executive and legislative councils, and the preponder- ance therein of certain interests which they conceived to be unfavourable to reform.'^ In New Brunswick, for 3"ears, the disputes between the executive and legisla- tive powers were characterized by much acrimony, but eventu.ally all the revenues of the province were con- ceded to the assembly, and the government became more harmonious from the moment it was confided to those w^ho had the confidence of the majority in the house.^ In Prince Edward Island, the political difficulty arose from the land monopoly,'' which was not to disappear in its entirety until the colony became a part of the confedera- iion of Canada. But when we come to review the politi- ^ " I expected to find a contest between a government and a people; I found two nations warring in the bosom of a single state ; I found a struggle, not of principles, but of races." Lord Durham's E., p. 7. - Lord Durham's E., pp. 56-58. * Mr. Young to Lord Durhain, K., p. 75, and App. At the time of the border difficulties with Maine, the >'oYa Scotia legislature vutod the necessary sujiplies. " Yet," said ]Mr. Howe, '' tliose who voted the money, who were responsible to their constituents for its exix'iuliture, and with- out whose consent (for they formed two-thirds of the Commons) a siiilling could not ha^e been drawn, had not a single man in the loial i-abinet by whom it was to be spent, and by whom, in that trying emergency, the governor would be advised." * Lord Durham's R., p. 74. '" Ibid. p. 75. 22 PA /.' /- TA MENTAR Y INSTITUTIONS IN CA NAD A. cal condition ol' all tin; provinces we find, as a rule, " representative o-overnment coupled with an irrespon- sible executive, tin; same abuse of the powers of the representative bodies, owing to the anomaly of their posi- tion, aided by the want of good municipal institutions ; and the same constant interference of the imperial admin- istration in matters which should 'be left wholly to the provincial governments.'" In Lower Canada, the descend- ants of the people who had never been allowed by France a voi<'e in the administration of public affairs, had, after some years' experience of representative institutions, en- tered fully into their spirit and meaning and could not now be satisfied with the workings of a political system which always ignored the wishes of the majority who really represented the people in the legislature. Consequently, the discontent at last assumed so formidable a character that legislation was completely obstructed. Eventually, this discontent culminated in the rebellion of 1837-8, which inflicted much injury on the province though happily it was confined to a very small part of the people.^ An attempt at a rebellion was also made in the upper province, but so unsuccessfully that the leaders were obliged to fly almost simultaneously with the rising of their followers ; ^ though it was not for many months afterwards that the people ceased to feel the injurious eflfects of the agitation which the revolutionists and their emissaries endeavoured to keep up in the province. In the lower or maritime colonies, no disturbances occurred,^ ^ Lord Durliam's R., p. 74. - For various accounts of this ill-advised rebellion in L. C, see II. Garneau, chaps, ii. and iii., Book 16, pp. 418-96 ; Christie, vols. iv. and v. Witlirow, chap, xxvii. * Life of W. Lyon Mackenzie, C. Lindsey. Withrow, chap, xxviii. * " If in these provinces there is less formidable discontent and less obstruction to the regular course of government, it is because in them there has been recently a consideral^le departure from the ordinary course of the colonial system, and a nearer approach to sound constitutional practice." Lord Durham's K., j). 74. CONSTITUTIONAL ACT, 1791. 23 aud the leaders of the popular party were amoug the first to assist the authorities in their efforts to preserve the public tranqiiillity, and to express themselves emphati- cally iu favour of British connection/ The result of these disturbances in the upper provinces was another change in the constitution of the Canadas. The imperial government was called upon to intervene promptly in their affairs. Previous to the outbreak in Canada the government had sent out royal commis- sioners with instructions to inquire fully into the state of the province of Lower Canada, where the ruling party in the assembly had formulated their grievances in the shape of ninety-two resolutions, in which among other things they demanded an elective legislative council.'"^ Lord Gosford came out in 1835 as governor-general and as head of the commission,'^ but the result tended only to intensify the discontent in the province. In 183t, Lord John Russell carried, in the House of Commons, by a large majority a series of resolutions, in which the demand for an elective legislative council and other radical changes was positively refused.^ In this public emergency, the Queen was called upon on the 10th of February, 1838, to sanction a bill x^assed by the two houses, suspending the constitution and making temporary provision for the government of Lower Canada. This act'' was proclaimed in the Quebec G-azette on the 29th of March in the same year, and, in accordance with its provisions, Sir John Colborne appointed a special council," which continued ^ See remarks of Mr. Joseph Howe at a public meeting held at Halifax, N. S., in 1838. I. Howe's Life and Letters, 171. '^ n. Garneau, 414-5. Journals, L. C, 1834, p. 310. ^ "Withrow, 365. Sir C. Grey and Sir G. Gipps were associated with Lord Gosford on the Commission. * Eng. Com. J. [92] 305 ; :\Iirror of P., 1243-4. = 1 and 2 Vict., c. 9; 2 and 3 Vict, c. 53. ^ V. Christie, 51. Tlie first ordinance susix>.ndcd the Hdhra.i Coiinui and declared that the enactment of tlie council should take ellect from date of passage. "24 i:\Ill. l.\Mi:STMlY ISSTITVTIONS IN CANADA. \n ofiicc unlil the arrival oi' Lord Durham, who super- s(>d('(l Lord Closlbrd as governor-general,' and was also entrusted with l;iig(! powers as high commissioner "for the iidjuslment oi" certain important affairs, affecting the l)rovin<('s of Upper and Lower Canada."" Immediately on Lord Durham's arrival he dissolved the special council just mentioned and appointed a new executive council.' This distinguished statesman continued at the head of affairs in the province from the last of May, 1838, until the 3d of November in the same year, when he returned to England, where his ordinance of the 28th of June, sen- tencing certain British subjects in custody, to transpor- tation without a form of trial, and subjecting them, and others not in prison, to death in case of their return to the country without permission of the authorities, had been most severely censured in and out of Parliament as entirely unwarranted by law.* So strong was the feeling in the Imperial Parliament on this question, that a bill was passed to indemnify all those who had issued or acted in putting the ordinance in force.'^ V. Union Act, 1840. — The immediate resu.lt of Lord Dur- ham's mission was an elaborate report," in which he fully reviewed the political difficulties of the provinces and re- commended imperial legislation with the view of remedy- ing existing evils and strengthening British connection. ^ V. Christie, 48-9. Sir John Colborne was only administrator at this time. - For instructions, in part, to Lord Durham and his remarks in the House of Lords on accepting the othce, see V. Cliristie, 47-50. ^ V. Christie, 150-5L * For debates on question, text of ordinance and accompanying pro- clamation, see Ibid. 158-83. '" This bill was introduced by Lord Brougham, the severest critic of Lord Durham's course in this matter. (1 and 2 Vict., c. 112.) In admit- ting the (luestionable character of the ordinance, Lord Durham's friends deprecated the attacks made against him, and showed that all his mea- sures had l)een influenced by an anxious desire to pacify the dissensions in the provinces. V. Christie, 183-lH. * Officially communicated to Parliament, llth Feb., 1839. UNIOX ACT, 1840. 25 The most important recommeudatioii iu the report was to the effect that " uo time should be lost iu proposing to Parliament a bill for restoring the union of the Canadas under one legislature, and reconstructing them as one pro- vince." On no point did he dwell more strongly than on the absolute necessity that existed for entrusting the gov- ernment to the hands of those in Avhom the representative body had confidence/ He also proposed that the Crown should give up its revenues, except those derived from land sales, in exchange for an adecjuate civil list, that the inde- pendence of the judges should be secured, and that muni- cipal institutions should be established without delay " as a matter of vital importance." The first immediate result of these suggestions was the presentation to the Imperial Parliament on the 3d of May, 1839, of a royal message," recommending a legislative union of the Canadas. In the month of June in the same year. Lord John Russell intro- duced a bill to re-unite the two provinces, but it was allowed, after its second reading, to lie over for that session of Parliament in order that the matter might be fully considered in Canada and more information obtained on the subject." Mr. Poulett Thomson* was appointed gov- ^ "I know not how it is possible to secure harmony in any other way than by administering the government on those principles Avhicli have been found j^erfectly efficacious in CJreat Britain. I would not impair a single prerogative of the Crown; on the contrary, I believe that the inter- ests of the people of these ijrovinces require the protection of prerogatives which have not hitherto been exercised. But the Crow n must, on the other hand, submit to the necessary consequences of representative ineti- tutions ; and if it has to carry on the government in unison with a i-ejire- sentative body, it must consent to carry it on by means of thoee in whom that representative body has confidence." Page lOG of E. - 3Ir. I'oulett Thomson's remarks to Six'-cial Council, 11th Xov., 1S3'.'. y. Christie, 31(5. 3 V. Christie 289-90. The opinion of the Biitish Pailiament was decidedly favourable to the bill. * Mr. Thomson was a member of the Imixu-ial rarliament and of decidedly advanced views in politics. Sir John Colborne was governor in the interval between Lord Durham's retirement and Mr. Thomson's •.appointment. 20 y vi I:L IA MKNTAR Y INSTITUTIONS IN CANADA. oriior-oviitMal \vitli tlic avowed object of carrying out the policy ol' the imperial government, and immediately after his arrival at Montreal in November, 1839, he called the special council together, and explained to them "the anxious desire felt by Parliament and the British people that a settlement of the questions relating to the Canadas should be speedily arrived at." The council passed an address in favour of a re-union of the provinces under one legislature as a measure of "indispensable and urgent necessity." ' The governor-general, in the month of De- cember, met the legislature of Upper Canada, and after full consideration of the question, both branches passed addresses in favour of union, setting forth at the same time the terms which would be considered most accept- able to the province. - It will be seen that the imperial government considered it necessary to obtain the consent of the legislature of Upper Canada, and of the special council of Lower Canada, before asking Parliament to re-unite the two pro- vmces. Accordingly, Lord John Russell, in the session of 1840, again brought forward his bill entitled, "An Act to re-unite the provinces of Upper and Lower Canada, and for the government of Canada,"^ which was assented to on the 23rd of July, but did not come into effect until the 10th of February in the following year, in accordance Avith a suspending clause to that effect.^ The act provided for > Special Conn. J., Nov. 11, 12, 13, 14. V. Christie, 316-22. -' Leg. Coun. J. (1839-40) 14, &c. Leg. Ass. J. (1839-40), 16, 57, 63, 66,. 161, 164. Y. Christie, 326-56. PrcA iously, however, in 1838, a committee of the House of Assembly of Upper Canada had declared it!?elf in favour of the proposed union. Upp. Can. Ass. J. (1838), 282. * 3 and 4 Vict., c. 35. The bill passed with hardly any opiwsition in the Commons, but it was opposed in the Lords by the Duke of Welling- ton, the Earl of Gosford, and the Earl of Ellenborough, besides others. * Mr. Poulett Thomson, now created Lord Sydenham, issued his proclamation on February 5, 1841, and took the oath on that day as governor-general from Chief Justice Sir James Stuart at Govern- ment House in 3Iontreal. Mr. Thomson's title was Baron Syden- ham, of Sydenliam in the County of Kent, and of Toronto in Canada. UNION A CT, 1840. 27 a legislative council of not less than twenty members, and for a legislatiy e assembly in which each section of the united pioTinces would be represented by an equal number of members — that is to say, forty-two for each oi eighty-four in all. The speaker of the council was ax^pointed by the Crown, and ten members, including the speaker, consti- tute a quorum. A majority of voices was to decide, and in case of an equality of votes the speaker had a casting vote. A legislative councillor w^ould vacate his seat by con- tinuous absence for tw^o consecutive sessions. The number of representatives allotted to each province could not be changed except with the concurrence of two-thirds of the members of each house. The quorum of the assembly was to be twenty, including the speaker. The speaker was elected by the majority, and w^as to have a casting vote in case of the votes being equal on a question. No person could be elected to the assembly unless he possessed a freehold of lands and tenements to the value of five hundred pounds sterling over and above all debts and mortgages. The English language alone was to be used in the legislative records.^ A session of the legis- lature should be held once, at least, every year, and each (V. Christie, 357-8.) The first iiarliament of the united Canadas was held at Kingston, 14th June, 1841. In 1844 it was removed to ^lontreal (then a city of 40,000 souls), on address. Mr. Speaker Jameson and other Upper Canadian legislative councillors left their seats rather than agree to the vote for the change. The legislature remained at Montreal until the riots of 1849, on the occasion of the Rebellion Losses Bill, led to the adoption of the system, under wiiich the legisla- ture met alternately at Quebec and Toronto — the latter city being first chosen by Lord Elgin. An address to the Queen to select a jjerujanent capital was agreed to in 1857, and Ottawa finally chosen. Tlie Canadian Parliament assembled for the first time on the 8th June, 18()(.), in the new edifice constructed in that city. The British North America Act, 1867, s. 16,. made that city the political capital of the Duminiun. Tur- cotte, 1st part, 71, 144 ; 2nd part, 119, 315-16. 1 The address from the Upi)er Canada Assembly prayed for the equal representation of each province, a permanent civil list, the use of tlio English language in all judicial and legislative records, as well as in the 28 I'A RIJA MJ:\T. Ill)' jySTITCTIOXS JX CAXABA. legislative nssombly was to have a duration of four years, unless sooner dissolved. Provision was made for u consolidated revenue Tund, on which the first charges were expenses of coHection, management, and receipt of revenues, interest of public debt, payment of the clergy, iind civil list. The fund, once these payments were made, could be appropriated for the public service as the legis- lature miuht think proper. All votes, resolutions or bills involving the expenditure of public money were to be first recommended by the governor-general.^ The passage of the Union Act of 1840 was the com- mencement of a new era in the constitutional history of •Canada as well as of the other provinces. The statesmen of Great Britain had learned that the time had arrived for enlarging the sphere of self-government in the colonies of British North America ; and consec[uently from 1840 we see them year by year making most liberal concessions which would never have l^eeu thought of under the old system of restrictive colonial administration. The most valuable result was the admission of the all-important principle that the ministry advising the governor should possess the confidence of the representatives of the people assembled in Parliament. Lord Durham, in his report, had pointed out most forcibly the injurious cousec^uences of the very opposite system which had so long prevailed in the provinces. His views had such influence on the minds of the statesmen then at the head of aflairs, that Mr. Poulett Thomson (as he informed the legislature of Upper Canada), " received her Majesty's commands to administer the government of these provinces in accord- ance with the well-understood wishes and interests of the debates after a certain period, and that the pulilic debt of the province be chargred on the joint revenues of the united Canada?. These several proposititins, except that respecting the French languaire, were recom- mended in the governor-general's messages. V. Christie, 334-48. ^ See chapter on Supply, S. I. rXIOX ACT, 1840. 29 people." ^ Subsequently he communicated to the legis- lature of the united provinces two despatches from Lord John Eussell,^ in which the governor-general was instructed, in order " to maintain the utmost possible har- mony," to call to his counsels and to employ in the public service " those persons who, by their position and charac- ter, have obtained the general confidence and esteem of the inhabitants of the province." He wished it to be generally made known by the governor-general that thereafter certain heads of departments would be called upon " to retire from the public service as often as any sufficient motives of public jDolicy might suggest the expediency of that measure." ^ During the first session, subsequent to the message conveying these despatches to the legislature, the assembly agreed to certain resolutions which authoritatively expressed the views of the sup- porters of responsible government. It was emphatically laid down as the very essence of the principle that " in order to preserve between the different branches of the provincial parliament that harmony which is essential to the peace, welfare, and good government of the province, the chief advisers of the representative of the sovereign, constituting a provincial administration under him. ^ In answer to an address from the Assembly, 13th December, 1839, (V. Christie, 353.) The views of the great body of Eeformers (in Upper Canada) appear to have been Hmited, according to their favourite expres- sion, to making the colonial constitution " an exact transcript" of that of Great Britain ; and they only desired that the Crown should, in Upper Canada, as at home, entrust the administration of affairs to men posses- sing the confidence of the assembly. Lord Durham's R. 58. 2 Lord J. Russell was colonial secretary from 1839 to 1841 ; the office was afterwards held successively from 1841 to 1852 by Lord Stanley, ]Mr. Gladstone, and Earl Grey. So that all these eminent statesmen assisted in enlarging the sphere of self-government in the colonies. Todd's Pari. Gov. in the Colonies, 25. ' Can. Ass. J. (1841), App. BB. These jiajx^rs Avere in response to an address from the Assembly of 5th August, 1841. The instructions to the governor-general rej^eated substantially the despatches on resix)nsible government. Journals of Ass., 20th August, 1841. 30 rARLlAMENTAllY INST J Trj' J O.X.S IX CAXAIJA. oug'ht to be men possessed of the confidence of the repre- sentatives of the peopU", thus jifiording a i>'uarantee that the well-understood wishes and interests of th(^ people, which our Gracious Sovereign has declared shall be the rule of the provincial government, will, on all occasions, be faithfully represented and advocated." ' Nevertheless, during the six years that elapsed after the passage of this formal expression of the views of the large majority in the legislature, " Responsible Grovernment " did not always obtain in the fullest ¥eDrse of the phrase, and not a few misunderstandings arose between the governors and the supporters of the principle as to the manner in which it should be worked out.- In 1847, Lord Elgin was ap- pointed governor-general, and received positive instruc- tions "to act generally upon the advice of his executive council, and to receive as members of that body those persons who might be pointed out to him as entitled to do so b}^ their possessing the confidence of the Assembly.""' No act of Parliament was necessary to effect this impor- tant change ; the insertion and alteration of a few para- graphs in the governor's instructions were sufficient.^ By 1848 the provinces of Canada, Nova Scotia, and New 1 The resolutions which were agreed to were proposed by Mr. Harri- son, then provincial secretary in the Draper-Ogden ministry, in amend- ment to others of the same purport, proposed by i\Ir. Baldwin. The resolution quoted in the text was carried by 56 yeas to 7 nays ; theothei"s ^passed without division. Journals of Ass., 1841, pp. 480-82. '■^ Especially during the administration of Lord Metcalfe (1843-45), who believed he could make appointments to office without taking the advice of his Council. Dent's Canada since the Union, vol. i., chap. xvi. * Grey, Colonial Policy, vol. i., pp. 206-34 ; Adderle^*, p. 31. See also Colonial Reg-, 57. Lord John Russell was premier, and Earl Grey, colo- nial secretary, when Lord Elgin was appointed. Todd, Pari. Gov. in the Colonies, 54-60. * Mr. Merivale quoted in Creasy's Constitutions of the Britannic Empire, 389. Lord John Russell, in his instructions to Lord Sydenham, e.s:pressly stated that it was " irapossible to reduce into the form of a rpositive enactment, a constitutional principle of this nature." Journals .of Assembly, 1841, p. 392. UXIOX ACT, 1840. 31 Brunswick ' were in the full enjoyment of the system of self-government, which had been so long advocated by their ablest public men; and the lesults have proved eminently favourable to their political as well as material development. From 1841 to 1867, during which i:)eriod the new con- stitution remained in force, many measures of a very imjiortant character were passed by the legislature. The independence of parliament was effectually securt'd. and judges and officials prevented from sitting in either house.- An elaborate system of municipal institutions was per- fected in the course of a few years for Upper and Lower Canada. It had been proposed to make such a system a part of the constitution of 1840,'' but the clauses on the subject were struck out of the bill during its passage in the House of Commons on the ground that such a purely local matter should be left to the new legislature.' Lord Sydenham, who had very strong opinions on the subject, directed the attention of the legislature in the first session to the necessity of giving a more extended application to the principles of local self-government, which alreadv prevailed in the province of Upper Canada; and the result was the introduction and passage of a measure in that direction.' At this time there was already in force an ordinance passed by the special council to establish a municipal system in Lower Canada — a measure which created much dissatisfaction in the province. Eventually ^ Earl Grey was colonial secretary in 184S, when the system was fully inaugurated in the maritime provinces. E. Commons raiK.>rs, 1847-S, vol. 42, pp. 51-88. ^ Chap, ii., infra. * Lord Durham so proposed it, E. 109. (Scroix^'s Life of Ix)rd Sydenham, 1114.) The address of the Assembly of Upi)er Canada to the governor-general in 1S40 called attention to the necessity of introlm-ing a system into Lower Canada in order to provide for local taxation. A'. Christie, 347. * V. Christie, 356. » Introduced by Mr. Harrison ; 4 tS: 5 Vict., c. 10. 32 PARLIAMENTARY INSTITUTIONS IN CANADA. the ordinance was revoked, and a system established in both provinces which met with general approval/ This measure demands special mention, even in this chapter, inasmuch as it has had a most valuable effect in eduratini:- the mass of the people in self-government, besides reliev- ing the legislature of a large amount of business, which can be more satisfactorily disposed of in town or county organizations, as provided for by law. In fact, the muni- cipal system of Canada lies at the very basis of its parlia- mentary institutions. Among the distinguishing features of the important legislation of this period was the passage of a measure which may be properly noticed here since it disposed of a vexatious cjuestiou which had arisen out of the provi- sions of the Constitutional Act of lt91. It will be seen by reference to the summary given elsewhere of that act that it reserved certain lands for the support of a Pro- testant clergy. The Church of England always claimed the sole enjoyment of these lands, and, in 1835, Sir John Colborne established a number of rectories which gave much offence to the other Protestant denominations, who had earnestly contended that these lands, under a strict interpretation of the law, belonged equally to all Protest- ants." The Church of Scotland, however, was the only other religious body that ever received any advantage from these reserves. The Reform party in Upper Canada made this matter one of their principal grievances, and in 1839 the legislature passed an act to dispose of the c[uestion, but it failed to receive the approval of the imperial authorities. It was not until 1853 that the British Parliament recognized the rio-ht of the Canadian 1 See Turcotte 1st Part, 97, 180 ; 2nd Part, 260, 384. Also, Cons. Stat, of Upper Canada, c. 54 ; of Lower Canada, c. 24. ^ In fact, in 1840, the highest judicial authorities of England gave it as their opinion that the words " a Protestant clergy " in the Act of 1791 included other clergy than those of the Church of England. 3Iirror of P.. May 4, 1840. UNION ACT, 1840. 33 legislature to dispose of the clergy reserves on the con- dition that all vested rights were respected. In 1854, the Canadian legislature passed a measure making existing claims a first charge on the funds, and dividing the balance among the several municipalities in the province according to population. Consecjuently, so far as the act of 1791 attempted to establish a connection between Church and State in Canada, it signally failed." Nor can the writer well leave out a brief reference tO' the abolition of the seigniorial tenure, after an existence of over two centuries, since the system deeply affected in many ways the social and political life of the French Canadian people. In the days of the French regime, this system had certain advantages in assisting settlement and promoting the comfort of the inhabitants ; but, as Lower Canada became filled up by a large population, this relic of feudal times became altogether unsuited to thc» condi- tion of the country, and it was finally decided to abolish it in the session of 1854." It was during this period that the Canadian legislature dealt with the civil service, on whose character and ability so much depends in the working of parliamentary institutions. During the time when responsible govern- ment had no existence in Canada, the legislature had virtually no control over public officials in the different 1 See Lord Durham's R., 66, 83; Tnrcotte, vol. ii., pp. 137, 234 ; Cons. Stat, of Canada, c. 25. The measure of 1854 (18 Vict., o. 2) was in charge of Attorney General (now Sir John) Macdonald, then a member of the MacNab-Morin administration. Leg. Ass. J. (1854-5) 193 ct $cfj. '^ Mr. Drummond, attorney-general in the MacXab-Morin adminie-- tration, introduced the bill ■which became law, 18 Vict., c. 3. A bill in the session of 1853 had been thrown out by the Legislative Council. For historical account of this tenure see Garneau, vol. i, chap. iii. ; Parkman's Old Regime, chap. xv. ; Turcotte, vol. ii., 161, 203, 234 ; Cons. Stat, of Lower Canada, chap. xli. The number of fiefs at the time of the passage of tlio Act of 1854, was ascertained to be 220, possessed by 160 miguicvrs, and' about 72,000 rentiers. The entire superficial area of these projiertics • comprised 12,822,503 acres, about one-half of which was found under rental. I. Garneau, 185. Report of Seigniorial Commiesion. 3 34 PA niJ. 1 MKXT. 1 7.' }' INSTfTUTIOXS IN CANADA. provinces, but tlicir appoiiiiiucnt rested \\\\\\ t]i(! homo goveriniK'iil and the g'oyeriior.s. In the appoiutmeuts, Canadians Avere systematically ignored, or a selection made from particular classes, and the consequence was the creation of a bureaucracy which exercised a large influence in public affairs, and was at the same time independent of the popular branch. When self-government was en- trusted to the provinces, the British authorities declared that they had " no wish to make the provinces the re- source for patronage at home," but on the contrary were earnestly intent on giving to the talent and character of leading persons in the Colonies advantages similar to those which talent and character employed in the public service obtain in the United Kingdom.'" But at the same time the British government, s]Deaking through the official medium of the secretary of state for the colonies, always pressed on the Canadian authorities the necessity of giving permanency and stability to the public service, by retaining deserving public officers without reference to a change of administration.- The consequence of ob- serving this valuable British principle has been to create a large body of public servants, on whose ability and intelligence de]3ends, in a large measure, the easy working of the machinery of government. According as the sphere of government expanded, and the duties of administration became more comiDlicated, it was found necessary to mature a system better adapted to the public exigencies. The first important measure in this direction Avas the bill of 185*7, which has been followed by other legislation in. ^ Lord John Russell, 1839. Journals of Ass. U.C., App. B.B. ■^ Lord John Eussell, 1839, App. B.B., Jour, of Ass., 18-11. Earl Grey to Lieut.-Governor Harvey, of Nova Scotia, 31 March, 1847. E. Com. P. 5847^8, vol. 42, p. 77. In Nova Scotia, the advice of the British govern- ment was never practically followed, and public othcers have been very frequently changed to meet the necessities of politicians. See despatch of the Duke of Newcastle to Governor Gordon, Feb. 22, 1862, New Brunswick Jour., 1802, p. 192. UXJOX ACT, 1840. 35 the same direction of improviiiq-the machinery of admini?^- tration/ But in no respect have we more forcible evidence of the change in the colonial policy of the imperial s-ovcrnmciit than in the amendments that were eventually made in the Union Act of 1840. All those measures of reform, for which Canadians had been struggling during nearly half a century, were at last granted. The control of the public revenues and the civil list had been a matter of s(M-ious dispute for years between the colonics and the parmt state ; but, six years after the union, the leuishilurc obtained complete authority over the civil list, with the sanction of the imperial government, which a-ave up every claim to disclose of provincial moneys.- About the same time, the imperial government conceded to Canada the full control of the post office, in accordance with the wishes of the people as expressed in the legislature' The last tarifl' framed by the Imperial Parliament for the British possessions in North Annn-ica was mentioned in the speech at the opening of the legislature in 1842,' and not long after that time, Canada found herself, as well as ' INIr. SptMice, when postmaster-general in the Tach^-i\lacdonald ad- ministration, introduced the act of 1857, appointinjj; permanent deputy heads and j^rades in the departments. 20 Vict., chap. 24. Cone. Stat, of Canada, c. 11. Since Confederation, 42 Vict, c. 34. See ReiK)rts of Civil Service Commission, presented to Canadian Parliament, ISSO-Sl and 1882, in wliich the present condition of the service is fuUy set forth, Sess. Pap., No. 113, (1880-81) and Sess. P., No. 32, (1882). In 1SS2, Parliament passed an act to improve the efficiency of tlie service (45 N'ict., c. 4), whicli has been amended by 4G Vict., c. 7. - Sec. 50 to 57, resjjecting consolidated revenue fund and charges tlioreon, and with the schedules therein referred to, were repealed by the Inijxirial Act 10 and 11 Vict, c. 71, and the Provincial Act *J Vict., c. 114, brought into force under sec. 9 of said Prov. Act, which j)rovided a iH.'rmaneiit Civil List in place of tl)at arranged by the Imperial autiiDritieb. See Cons. Stat, of Canada, c. 10. •' See Speech of Lord Elgin, sess. of 1847, Jour, of Ass., p. 7; Tan. Stat., 13 and 14 Vict. c. 17, s. 2, and Cons. Stat, c. 31, t;. 2, mider aullmrity df Imjjerial Act, 12 and 13 Vict, c. Uli. * Ass. Jour., 1842, p. 3. 3G PARLIAMENTARY INSTITUTIONS IN CANADA. the other provinces, comi)letely Tree Irom Imperial inttT- ference in all matters affecting trade and commerce. In 1846, the British Colonies in America were authorii-ed by an imperial statute ' to reduce or repeal by their own legislation duties imposed by imperial acts upon foreign goods imported from foreign countries into the colonies in question. Canada soon availed herself of this privilege, which was granted to her as the logical sequ.ence of the free trade policy of Great Britain, and, from that time to the present, she has been enabled to legislate very freely with regard to her own commercial interests. In 1849, the Imperial Parliament, in response to addresses of the leo'islature, and memorials from boards of trade and merchants in Canada, repealed the navigation laws, and allowed the Eiver St. Lawrence to be used by vessels of all nations." With the repeal of those old laws, which had been first enacted in the days of the commonwealth to impede the commercial enterprise of the Dutch, Cana- dian trade and shipping received an additional impulse. No part of the constitution of 1840 gaA^e greater offence to the French Canadian population than the clause re- stricting the use of the French language in the legislature. It was considered as a part of the policy, foreshadowed in Lord Durham's report,^ to denationalize, if possible, the 'Imp. Stat, 9 and 10 Yict, o. 94. Todd Pari. Gov. in the Colonies, 176-80. See speech of Lord Elgin, 1847, Jour., p. 7, in -which he referf> to the power given to the colonial legislatures to rei^eal differential duties heretofore imposed by the Colonies in favour of British produce. In re- sponse, the legislature passed, 10 and 11 Vict., c. 30, the tirst measure necessary to meet " the altered state of our colonial relations with the mother country." Speech of Speaker of Assembly in presenting Supply Bill. Jour. p. 218. 2 Leg. Ass. J. (1849), 43, 48, 57 ; app. C. ; Imp. Acts, 12 and 13 Vict., c. 29, s. 5. The memorandum of the Canadian government sets forth very clearly that since it was no longer the policy of the Empire to give a pre- ference to colonial products in the markets of the L'nited Kingdom , no reason could possibly exist for monopolies and restrictions in favour of British shipping. App. C. as above. ^ " "Without effecting the change so rapidly or so roughly as to shock UNIOX ACT, 1840. 37 French Canadian province. The repeal of the clause in 1848 was one evidence ol' the harmonious operation of the union, and of the better feeling between the two sections of the population.' Still later, provision was made for an electiA'e legislative council, so long and earnestly de- manded by the old legislature of Lower Canada. In 1854 the Imperial rarliament passed, in response to an address of the legislative assembly, an act to empower llie legislature to alter the constitution of the legislative council." In lSo6, the Canadian legislature passed a l)ill providing for an elective upper house ; the province was divided into 48 electoral divisions, 24 for each section ; twelve members were to be elected every two years ; every councillor was to hold real estate to the value of $8,000 within his electoral district. The members were only to remain in the council for eight years, ]mt could of course be re-elected. Existing members were allowed to retain tlieiv seats during their lives.'" The speaker was appointed by the Crown from the council until lSti2, when he was elected by the members from among their own number.* The first election of councillors under the new act took place in the summer of 18oG. the feelings and trample on the welfare of the existing generation, it must henceforth be the first and steady purpose of the British government to establish an English i^opulation, ■with English laws and language, in this province, and to trust its government to have but a decidedly English legislature." P. 110, et seq. ' See chaj). v. - Leg. Ass. J. (1853), 944 ; Imp. Act, 17 and 18 Vict., c. 118. In the course of the debate the Duke of Newcastle said : "The proi)er cuurse to pursue was to legislate no more for Ihe colonics than we could iMissibly help; indeed, he I )el)eved that the only legislation now required for t lie colonies consisted in undoing the bad legislation of former years." K'.4 E. Hans (3) 159. 22 and 23 Vict., c. 10, Imp. Stat. ='19 and 20 Vict., c. 140; Cons. Stat, of C'anaila, c. 1. Mr. Cauclion, commissioner of crown lands, in the MacXab-Tachc Adiniiiistratioii, in- troduced the bill in the Assembly. ' Can. Stat., 23 Vict., c. 3, repealed s. 26 of 19 and 20 Vict., c. 14(i. The Act made also provision for supplying the place of the .siK';d;«T in case of i i 5 ') i' H 38 PARLLIM/CXTARY LXSTITIT/OXS IN CAXADA. VI. Federal Union of the Provinces. — Tho, union between Upper and J^owcr Canada lasted until 186Y, when the provinces of British North America were brought more closely toi^'cthci' in a Icdcration and entered on a new era in i heir consiitutional history. For many years previous to 1865, the administration oi" goA'ernment in Canada had become surrounded with political difficulties of a very perplexing character. The union had not at first been viewed with favour by the majority of the French Cana- dians who regarded it as a scheme to anglicize their pro- vince in the course of time. One of their grievances^ was the fact that the act gave each province the same representation in the legislature, though Lower Canada had in 1840 the greater population." But the large im- migration that flowed into Upper Canada for many years after the union soon gave the preponderance of popu- lation to that province, where in the course of no long time a demand was made for a representation in the legislature according to the population. This demand was always strenuously resisted by the Lower Canadian representatives as unjust in view of the conditions under which they entered the union. The act itself afforded them sufficient protection inasmuch as it embodied the his being obliged to leave the chair from illness, &e. The first election took place in 1862, IMarch 20, when Sir Allan MacNab was chosen Speaker. ^ See address of M. Lafontaine (1 Turcotte, 60) in which he laid before the electors of Terrebonne his opinions as to the injustice of the Union Act: "L'union est un acte d'injnstice et de despotisme en ce qu'ello nous est impoKee sans notre consentement ; en ce qu'elle prive le Bas Canada du nombre legitime de ses representants, etc." ■^ In 1839, Lord Durham gave the poi)nlation of Upi^er Canada at 4(i0,- 000, and that of Lower Canada at 600,000, of whom 450,000 were French. The census compiler of 1870 gives the population of Upper Canada in 1840, at 432,1.59 ; of Nova Scotia in 1838, 202,575 ; of New Brunswick, in 1840, 156,162; of Assiniboia 4,7C4; of Prince Edward Island, 47,042 in 1841. No figures are given for Lower Canada in 1840, but we find the number was ()97,084 in 1844. The figures given by Lord Durham were as accurate as they could be made at the time. FEDERAL UXIOX OF THE FEOVIXCES. 39 proviso ' that the goA'ernor could not assent to any hill of the legislature to alter the representation. unless it should have been passed with the concurrence of two-thirds of the members in each house. This clause was, however, suddenly repealed by the Imperial Act of 1854, empower- ing the legislature to alter the constitution of the legis- lative council, but no practical result ever followed in respect to the representation.- It is interesting to note that one of the expedients by which it was hoped to an-ange the political conflict be- tween the two sections was the principle of a double majority. In the course of the first decade after the union, prominent public men laid it down as necessary to the harmonious operation of the constitution, that no administration ought to continue in power unless it was supported by a majority from each section of the united provinces.'^ As a matter of justice, it was urged, that no measure touching the interests of a particular province should be passed except with the consent of a majority of its representatives.^ The principle had more or less re- cognition in the government and legislature after 1848.''' The very formation of the ministry, in which each pro- > 3 and 4 Yict., c. 35, s. 26. This clause was ailded to the bill by tho British Ministry to protect the French Canadian representation. II f the two Canadas, in case of the failure of the larger scheme.^ The union of the i:>rovinces had been discussed more than once in the legislatures of British North Amer- ica since the appearance of Lord Durham's report, in which it was urged with great force that " it would en- able the provinces to co-operate for all common purposes, and above all, it would form a great and poA\ crl'ul jx'ople, possessing the means of securing good and ri'sponsil>le government for itself, and which, under the protection of the British Empire, might, in some measure, counterbal- ance the preponderant and increasing inlkience of the United States on the American continent." Lord Durham even went so far as to recommend that the *' l)ill should contain provisions by which any or all olthe otlun- North American Colonies may, on the application of the leuis- lature, be, with the constant of the two Canadas or their united legislature, admitted into the union on sucli terms as may be agreed on between them.'"- The expediency of a union was made a part of the programme of the Cartier-Macdonald government in 1858, and expressly referred to in the governor's speech at the clo.'^e of the session f' but no practical result was ever reached until 1 Sir J. A. Macdonald, Conf. Deb., 20-27. " The oi)po.sition ami govern- ment loaders arranged a larger and a smaller scheme; if tlie largi^r failed, then they were to fall baek uixm the minor, vliieh provided for a federation of the two sections of the ))rovince." Sir K. P. Taclie, //>. !•• ' Rep., pp. 116-21. He preferred a legislative union. •■ Conf. Del)., Sir ti. E. Cartier, p. 5". ; Ass. .1. (185S) KM.".. }H>e also Mr. Brown's speech (pp. 110-24), in which he claimed that the e.ssence of tho federation measure was found in the "joint autliority" resolutions of the Reform Convention of 1859. 42 I\ I IILI. I MENTA II Y IXSTITIJTIONS IN CAN. I DA . tho political necessities of the provinces forced them to take u]> th(! (|uestion and bring it to a satisfactory issue. It was a hai)))y coincidence that the legislatures of the lower provinces were about considering a maritime; union at the time the leading statesmen of Canada had com- bined to mature a plan of settling their political diffi- culties. The Canadian ministry at once availed them- selves of this fact to meet the maritime delegates at their convention in Charlottetown, and the result was the deci- sion to consider the question of the larger union at Quebec. Accordingly, on the 10th of October, 1864, delegates from all the British North American provinces assembled in conference, in " the ancient capital," and, after very ample deliberations during eighteen days, agreed to seventy- two resolutions, which form the basis of the Act of Union. ^ These resolutions were formally submitted to the legis- lature of Canada in January, 1865, and after an elaborate debate which extended from the 3rd of February to the 14th of March, both houses agreed by very large majorities to an address to her Majesty praying her to submit a measure to the Imperial Parliament " for the purpose of uniting the provinces in accordance with the j^rovisions of the Quebec resolutions." ^ Some time, however, had to ^ For historical accounts of initiation of confederation see Doutre, Constitution of Canada, 15 ; Gray, Confederation of Canada, vol. i. ; II. Turcotte, 518-59 ; Confederation Debates, 1865, especially speeches of Sir E. P. Tache, Sir J. A. Macdonald, Sir G. E. Cartier, Hon. Geo. Brown, and Sir A. Camjibell. Canada was reiiresentecl by 12 delegates, for each province. New- Brunswick by 7, Nova Scotia by 5, P. E. Island by 7, and Newfoundland by 2; each province Lad a vote, and the convention sat with closed doors. The delegates : Canada, Sir E. P. Tache, Messrs. J. A, JMacdonald, Cartier, Brown, Gait, Campbell, Chapais, McGee, Langevin, Mowat, McDougall and Cockburn. Nova Scotia, Messrs. Tuj^per, Henry, McCuUy, Archibald and Dickey. New- Brunswick, Messrs. Tilley, Mit- chell, Fisher, Steeves, Gray, Chandler and Johnson. P. E. Island, Messrs. Gray, Coles, Haviland, Palmer, INIacdonald, Whelan and Pope. New- foundland, Messrs. Shea and Carter. ' The address was agreed to in the legislative council by 45 contents to 15 non-contents. Jour. (1865, 1st sess.), p. 130 ; in the assembly by 91 yeas to 33 nays, Jour., p. 192-3 ; Confed. Debates, 1865, p. 962. Sir E. P. Tache FEDERAL VXION OF THE PnOVIXCES. 43 elapse before the uiiiou could be consummated, in conse- quence of the stroni^ opposition that very soon exhibited itself in the maritime provinces, more especially to the financial terms of the scheme. In New Brunswick, there were two general elections during 1865 and 1866, the latter of which resulted in the return of a legislature favourable to union, and finally in the adoption of the measure. The question was never submitted to the people at the polls in Nova Scotia, but the legislature even- tually, after months of hesitation, agTced to the union, in view of the facts that it was strongly approved by the imperial government as in the interests of the Empire, that both Canada and New Brunswick had given their consent, and that it was proposed to make such changes in the terms as would be more favourable to the interests of the maritime provinces. The result of the action of the two provinces in cj^uestion was another conference at London in the fall of 1866, when a few changes were made in the direction of maritime interests, chiefly in the financial terms, and without disturbing the important fea- tures of the Quebec resolutions, to which Canada liad already pledged herself in the session of 1865.' The provin- ces of Canada, Nova Scotia, and New Brunswick, being at last in full accord, through the action of their respective legislatures, the plan of union was submitted on the 12th of February, 1867, to the Imperial Parliament, where it met with tln' warm support of the statesmen of all parties, and passed without amendment in the course ol' a l'<\v weeks, the royal assent being given on the 29th of March.- introduced the resolutions in the council ; Atty.-Gen. (now Sir. J. A.) Mac- donald moved, and Atty.-Gen. (afterwards Sir) G. E. Cartier, seconded tlieni in the a-ssembly. Four members of the government went to Eng- land after the se!-sion of 1S05, in reference to confederati<-n, the cession of the ]S'orth-West, and other important qucKtions. Juur.. lS(,.-,,L'nd.se.ss., 7-10. 1 The Westminister Palace Conference was held in J-ond.>ii. in Pecem- ber, 18()(i, and the result was the Union Act of 1S07. '' Imp. Act, oO and 31 Vict., c. 3. " An Act for the Unii.n <.f (.annda, Kova Scotia and ^'ew Brunswick, and the gcvernment tliereuf, and for 44 j'Ai:iJAMj:\TAi:y ixstitctjons ix Canada. Tlic new coiistiiulion came into Ibrco on tlic first of July, ]8(iV. aiul the JirsI ])arliument of the united proviueeK met on NovenilnT of llic .same year' — the act requiring- it to assemble not lalcr lliaii six months after the union/ The confederation, as inaugurated, in 11^07. consisted only of the four provinces of On1aii(), (^udx-c, Nova Scotia and Nc\v Ihamswick.' IJy the ]4(;tli s<'clion of the Act of Union, provision ^vas made for tlie admission of -other colonies on addresses from the parliament of Can- ada, and from the respective legislatures of Newfound- land, Prince Edward Island, and British Columbia, liupert^s Land and the North-West Territory might also at any time be admitted into the union on the address of the Canadian parliament. The acquisition of the North- West Territory had been lor years the desire of the people of Canada, and Avas the subject of consultation with the imperial government in 1805, when Canadian delegates went to England/ During the first session of the j^arlia- ment of Canada, an address was adopted praying her Majesty to unite Eupert's Land and the North- AVest Terri- tory to the dominion/ This address received a favour- I)in]toses connected thereAvitb." Lord Camarvcn, then secretary of state for the colonies, had charge of the measure in the Lords/ INlr. Adderley, under-secretary in the Commons. 185 E. Hans 3 (Lords), 557, 804, Kill ; (Commons) 1164, 1310, 1701. ^ Her Majesty's proclamation, giving efl'ect to the I'nicn Act, was issued on the 22nd May, 1867, declaring that on and after the Ist July, 1807, the provinces of Canada, Nova Scotia and New Brunswick sjiall form and be one Dominion, under the name of Canada. The i)roclaniation also con- tained names of first senators. Jour. House of Commons of Canada, Y-YI. B. N. A. Act, 1867, s. 3 and 25. Lord Monck was tlie first governor- general of the dominion. Com. Jour. (1867-8), YH. Parliament met on the 7tli November, and Hon. J. Cockburn was elected first si)eaker of the Commons. Hon. J. Cauchon was first sjieaker of the Senate. ■' Sec. 19. =* B. N. A. Act, 1867, s. 5-7. * Can. Com. J., 1865, 2 sess., pp. 12-13. For paj ers on the subject of the acquisition of the territory see Can. Sess. P., 1867-S. No. 19, and p. 3 i7 of Journals. ^ Can. Com. J. (1867-8), 67. FEDERAL UNION OF THE PROVINCES. 45 able respouso, but it was found necessary in the first place to obtain from the Imperial Parliament authority to transfer to Canada the territory in question. An act was passed in the month of July, 1868/ and in ufcordance with its provisions, neo-otiations took platinL' tlic icrms c.f aL'm- ment for the surrender of the territory. ^ Can. Stat., 32 and 33 Vict., c. 3. * Hon. W. McDougall. 46 PM'JJAMEXTAin' IXSTITrriOXS JX CAXADA. tie.s to arrange terms on which the people ol' the lied Eiver might enter confederation. In Ihe session of 1870, the Canadian parliament passed an aet ' to establish and provide lor the government ol" Manitoba — a new province formed out of the North-West Territory, to which was given representation in the Senate and House of Com- mons. Provision was also made for a local or provincial government on the same basis as existed in the older pro- vinces. On the 30th of June, 1870, by an imperial order in council,- it was declared that after the loth of July. 1870, the North-West Territory and lvupert"s Land should form part of the dominion of Canada. The legislature of Manitoba was elected in the early part of 1871. and the provincial government regularly and peacefully estab- lished.'^ The members for the House of Commons took their seats in the session of the same year,^ — the new senators in the session of 1872.^ When v,'e come to con- sider the provincial constitutions we shall refer to the local government of Manitoba as well as to the provisions made in several statutory enactments for the administra- tion of affairs in the North- West. In accordance with addresses from the Canadian par- liament, and the legislative council of British Columbia, that colony was formally admitted into the confederation by imperial order in council declaring that from and after the 20th of July, 1871, the colony should form part of the dominion. The terms of union provided for representation in the Senate and House of Commons, and responsible government in the province, as well as for the construction ^ 33 Vict., c. 3. The limits of the province were enlarged in 18S1 ; Can. Stat. 44 Vict., c. 14. See also Man. Stat., 44 Vict., c. 1, 12, 13, 14. ■■' In accordance with s. 146, B. N. A. Act, 1867 ; Can. Stat., 1S72, p. Ixiii. =' Annual Register, 1878, pp. 18-19. * Com. J. (1871), 154, 221, 226. Only three members were returned; a new election in one constituency being requisite on account of a tie. Jour., p. 152. ^ 5 Sen. J. (1872), 18. FEDERAL UXIOX OF THE mOVIXCEs. 47 of a traus-coutiuental railway.' The members for the pro- viuce took their seats in the Senate and House of Com- mons during the session of 1872.- The province of P. E. Island, had been represented in the Quebec conference of 1864, but owing to the opposi- tion that existed to the union for some years, it was not until the first session of 1873 that both the Parliament of Canada and the legislature of the island passed addresses for the admission of the province into the confederation on certain conditions which included rex)resentation in the Senate and House of Commons, and the continuance of the local government on the same basis as in the other provinces." A bill was also passed during the same ses- sion, — in anticipation of her Majesty's government taking the necessary stex)s to admit the island — x^roviding that certain acts should come into force in the province as soon as it was united to Canada.* By an imperial order in council, it was declared that from and after the first of July, 1873, the colony should form part of the dominion.'' The members for the tAvo houses took their seats for the first time during the second session of 1873.'' Newl'oundland was also represented at the Quebec con- vention of 1864, but the general elections of 1865 resulted adversely to the union.'' Subsequently the House of Commons, in the session of 1869, went into committee on certain resolutions providing for the admission of New- foundland, and an address was passed in accordance therewith. The union was to take effect on such day as 1 Can. Com. J. [1871]; 193-90; Pari. Deb., 1871. Can. Stat, for 1S72, p. Ixxxiv. Also, as to preparatory steps, Can. Sess. Pap., No. 59, 1SG7-8, pp. 3-7. - Sen. J. [1872] 18 ; Com. J. [1872] 4. The elections for the Commons were held in accordance -with 34 Vict. c. 20. » Can. Com. J. [1873] 403. ' 36 Vict. c. 40. '" Can. Stat, for 1873, p. ix. Sen. J. 1873, 2nd session, p. 9. Com. J., Ih. pp. 2-4. ' II. Turcotte, 5(32. 48 l'MlLIAMi:.\TMiy IXSTirrTIONS in CANADA. " hiT Majesty by order in council, on an address to that effect, in terms oi" the 14Gth section oi" the British North America Act, 18G7, may direct " ; ^ Imt the legislature of Newfoundland has so far refused to sanction the necessary address. In response to an address of the Parliament of Canada, in the session of 1878, an imperial order in council "was passed on the 31st of July, 1880, declaring that " from and after the 1st of September, 1880, all British territories and possessions in North America, not already included within the dominion of Canada, and all islands adjacent to any of such territories or possessions shall (with the exception of the colony of Newfoundland and its depen- dencies) become and be annexed to and form part of the said dominion of Canada ; and become and be subject to the laws, for the time being in force in the said dominion, in so far as such laws may be apx^licable thereto." This order in council was considered necessary to remove doubts that existed regarding the northerly and north- easterly boundaries of the North-West Territories and Rupert's Land, transferred to Canada by order of council of the 23rd of June, 1870, and to place beyond question the right of Canada to all of British North America, with the exception of Newfoundland.- VII. Constitution of the General Government and Parliament. — The Dominion " of Canada has, therefore been extended since 1867 over all the British possessions between the Atlantic and Pacific oceans to the north of the United States — the territory untler the jurisdiction of the New- foundland government alone excepted. The seven pro- 1 Can. Com. J. [1869], 221. - Can. Com. J. [1878] 256-7; Can. Stat. 1881, p. ix, Order in Council. Can. Hans. [1878], 2386. •^ The title of Dominion [s. 3, of B. X. A. Act, 1867], did not appear in the Quebec resolutions. The 71st Res. is to the efiect that " her Majesty be solicited to determine the rank and name of the Federated Provinces." coxsrrrrTfox of the aKXKiiAL novEnxMEyT. 4{> vinces embraced within this vast area of t«'rritorv are united in a federal union, the terms of whi>h have been arranged on '" principles just to the several provinces." In order " to protect the diversified interests of the several provinces, and secure efficiency, harmony, and permanency in the working of the union," the system of government, as set forth in the Act of 1867, combines in the first place a general government. " charged with mat- ters of common interest to the whole country," and local governments for each of the provinces, " charged with the control of local matters in their respective sections." "With a view to the perpetuation of our connection with the mother country, the promotion of the best interests of the people of these provinces," the constitution of the general government has been so framed as " to follow the model of the British constitution, so far as our cir- cumstances will permit." Accordingly, " the executive authority or government " is vested in express terms in the " Sovereign of the United Kingdom of Great Britain and Ireland," and is administered " according to the well understood principles of the British constitution."' The sovereign is represented in the dominion by a gover- nor-general, ai)pointed by letters-patent under the great seal. His jurisdiction and powers are defined by the terms of his commission, and by the royal instructions which accompany the same.- He holds office during the See remarks of Sir J. A. ]\Iacdonald, Confed. Deb., p. i'A. The iianie was arranged at the conference held in Ix^ndon in 18ti(), wlien the union hill was finally drafted. This was not the first time the title was applied to Canada ; we find in the address of the old Colonies assembled at Phihulelphia, 1774, strong objection taken to the Act of 1774, by which " the dominion of Canada is to be so extended, modelled and governed." I. Christie, !• The old commonwealth of Virginia was known as "the Old Dominion." ' These quotations are from the (Quebec resolutions, Can. Com. J. [ISiiri] 203. The preamble of the B. N. A. Act, 1S(;7, declares," with a constitution similar in principle to that of the United Kingdom." — Sec. it. "The ex- ecutive government and authority is henO)y dedarctl to continue and bt> vested in the Queen." ■^ Sec App. at end of this work. 4 50 I'MlLIAMESTAnV ISSTITl'TfOXS IS CANADA. pleasure of the Crown, })ut ho may ('xerciKO his functions for at least six years from the time he has entered, on his duties.' In all his eommunieations with the imperial government, of which he is an officer, he addresses the secretary of state for the colonies, the constitutional avenue through which he must approach thi; sovereign." His first duty, when he enters on his duties, is to take the necessary oaths of allegiance and office before the chief Justice, or any other judge of the supreme court of the dominion, and at the same time to cause his commission to be formally read.' In view of the larger measure of self-government con- ceded to the dominion of Canada by the imperial legisla- tion of 1867 — in itself ])ut the natural secjuence of the new colonial policy inaugurated in 1840 — the letters- patent and instructions, which accompanied the com- mission given to the governor-general in 1878, have been modified and altered in certain material features. The measure of power now exercised by the govern- ment and parliament of Canada is " relatively greater than that now enjoyed by other colonies of the empire, but absolutely more than had been previously intrusted to Canada itself, during the administration of any for- mer o'overnor-o'eneral."* Without enterino; at leusrth into 1 Colonial Eeg. sec 7. Col. Office List, 1883, p. 254. Todd, 90. Lord Lome held the position for only five years. Lord Dufferin was appointed in the spring of 1872, and retired in the fall of 1878. '' Todd, 90, Col. Reg. sec. 105, p. 265. "' Instructions to governor-general, Can. Sess. P. 1879, No. 14. The Mar- qnis of Lome was sworn in on the 25th of November, 1S7S, in the old Province Bnilding, Halifax, by acting Chief Justice Ritchie. Annual Register for 1878, pp. 255-7. The oath of office is given in same account of ceremonies on that occasion. * The modifications in these official instruments were the result of the mission of ISIr. Blake, whilst minister of justice, to England in 1876. For full information on this subject, see Todd 70, ct ficq., and Can. Se^s., P. (1877) No. 13 ; also chapter on bills. For royal commission, letters-patent, and instructions to the INIarquis of Loi'ue, Sess. P. (1879) No. 14 ; to Lord ]\Ionck, .Sess. P. (1807-8) No. 22; also to Lord Duflerin, Can. Com. J. (1873) 85. CONSTITUTION OF THE GENERAL GOVERNMENT. 51 this question, it is sufficient for present purposes to notice that the governor-general is authorized, anionsi' other things, to exercise all powers lawiully belonging to the queen, with respect to the summoning, proroguing or dissolving x^arliament ;' to administer the oaths of alle- giance and office ;- to transmit to the imperial govern- ment copies of all laws assented to by him or reserved for the signification of the royal assent ;"' to administer the prerogative of pardon ;' to appoint all ministers of state, judges, and other public olhccrs, and to remove or suspend them for sufficient cause;'' He may also appoint a deputy or deputies to exercise certain of his powers and functions.'' He may not leave the dominion upon any pretence whatsoever without having iirst obtained per- mission to do so through one of the principal secretaries of state." In case of the death, incapacity, removal " or absence from Canada of the governor-general, his powers are vested in a lieutenant-governor or administrator appointed l)y the queen, under the royal sign-manual : or, if no sucli ai:>pointm(Mit has l)een made, in the senior officer in command of the imperial troops in the dominion. The administrator must also be formally sworn, as in the case of the governor-general." The senior executive councillor frequently administered the government in the absence of the governor-general 1 Letters Patent, 1878, s. 5. 2 Instructions, 1878, s. 2. ^ lb. s. 4. See chapter on bills. ♦76. s. 5. See Todd, 271. ^ Letters P. s. 3, 4. "ift. s. () ; also B. N. Act, 18()7, 6. 14. See Cliapter vi., for appointinciil of deputy-governors fsinco 1S40. '' Instructions s. 0. * It is ahvajs conipotont for the imjierial govcrnincnt to ivniovo the governors of colonies, wlio are appointed during pleasure. See memor- able case of Governor Darling of Victoria. Eng. Com. P. ISfWi, vol. 50, p. 701 ; Todd, 90. " Letters-patent, s. 7. Cmmilu Gazrfic, Dec. 00, 1SS2. 52 PAPxLTAMENTARY INSTITUTIONS IN CANADA. before the union of 1840.' But whenever the lieutenant- governor was in the country, during the period in question, it was his duty to administer the government^ Since 1840, in the old province of Canada, and in the dominion, the government has been administered in the absence of the governor-general by the senior ollicer in command of the imperial troops in accordance with tht* letters-patent issued by the Crown.' The constitution provides for the appointment of a council to aid and advise the representative of the sov- ereign in the government of Canada. This body is styled the queen's privy council, audits members are chosen and may be removed at any time by the governor.general.^ In accordance with the principles of the British consti- tutional system, this council represents the views of the majority of the people's representatives in parliament, and can only hold office as long as its members retain the confidence of the House of Commons. The name chosen for this important body has been borrowed from that ancient institution of England, which so long discharged the functions of advising the supreme executive of the kingdom in the o-overnment of the country.' Since the revolution of 1688, the privy council of England has had ' In 1805, when Sir E, Shore. ]\Iihies, lieutenant-governor, went to Encrland^ 3Ir. Dunn assumed the government as " President and Commander-in- Chief; " he was one of the judses, and an executive councillor. I. Christie,. 2.59. On the death of the Duke of Richmond, in 1819, the government devolved on Mr. Monk, as senior executive councillor. III. Christie, 322.. - General Prescott on departure of Lord Dorchester in 1796, 1 Chris- tie, 173 ; Sir W. Shore Milnes in 1799, lb. 203 ; Sir F. Burton in 1824, III. Ih. 55. No Buch official now exists in the dominion, the functions of tlie present lieutenant-governors being confined to the provinces to which they are appointed. ^ In 1841, Sir K. D. Jackson; 1845, Lord Cathcart; 1853, Lieut.-Gen. Rowan; 1857, Sir W. Eyre; 1860, Lieut.-gen. "Williams; 1865, Lieut.-Gren. Michel ; 1874, Major-Gen. O'Grady Haly ; 1878, 1881-2, and 1882-3, Sir P. L. :\IcDongall. [See Canada Gazette, Dec. 30, 1882.] * B. N. A. Act, 1867, s. 11. '■> I. Blackslone's Com., 229-234. CONSTITUTION OF THE GENERAL GOVERNMENT. 53 HO longer the, directiou of public affairs, thoug-h it has still an existence as an honorary body, limited in numbers only liable to be convened on special occasions, and only in theory an assembly of state advisers.' The system which has grown up in England since 1688, and which has ob- tained its most perfect ri'alization during the past half cen- tury, now entrusts the practical discharge of the functions of government to a cabinet council, which is technically a committee of the privy council.- This cabinet is the ruling part of the ministry or administration. The term "ministry" properly includes all the ministers, but of these only a select number — usually about twelve, but liable to variation from time to time even in the same administration — constitute the inner council of the Crown and incur the higher responsibilities whilst they exercise the higher powders of government. The rest of the min- istry, although closely connected with their brethren in the cabinet, occupy a secondary and subordinate posi- tion.'^ In Canada, however, there is no such distinction ; for the term " ministry " or " cabinet " is indiliereiitlv applied to those members of the privv council who may be summoned by the governor-general to aid and advise him in the government of the dominion. The principles that prevail iu the formation of a cabinet in England obtain in the case of an administration in Canada. Its members must have places in either house of parliament, ^ II. Todd, Pari. Gov. in England, 52, 53. '' II. Todd, 144. The ca])inet conncil or ministry \\\\o liold tlio |)rin- <'ipal offices of state, are first sworn in as privy councillors. II. .May, 7!>, Macaulay c. 20. ^ Taswell-Langmead, Cons. Hist., ji. liT'.i. .And not only is tin- exist- ence of the cabinet council unknown to tlic law, luii tlic very nanie.s of the individuals wlio may comprise tiie same at any given in-riod are never otticially communicated to the jniblic. The Loiuhm Gazttlr an- nounces that the (jueen lias been pleased to a])point certain privy coun- cillors to till certain high ollices of state, lint the fact of tlnMr liaving Ikhmj called to seats in the cabinet council is not formally iiromulgat(««l, II. Todd, 144. 54 rARLlAMEyTAUY IXSTlTlTIOys I\ CAXADA. •^ but the majority should, mikI Ufccssaiily do, .sit in the rommous. In the old ])roviu((' of (Viuada, th(! cabinet was always known oflicially as the executiv«; couiK-il.' In 1X6"), this body (comprised iu all twelve members, six from each province : two attorney-generals, two solicitor-generals, a receiver-general (also minister oT militia), minister of finance, commissioner of crown lands, minister of agi-i- culture and statistics, commissioner of public works, president of council, pro^'incial secretary, and postmas- ter-general.- In all the provinces of the dominion, the official body advising the lieutenant-governor is still authoritatively recognized as the executive council.* In 186*7, a new ministry of thirteen members was formed lender the legal title of the privy council of Canada, in which it was found expedient to consider the claims of the several provinces ol the dominion to representation in the first i-abinet. Accordingly, Ontario had five rei)re- sentatives in the privy council ; Quebec, four, one of them a representative of the English section of the popu- lation ; Nova Scotia, two ; New Brunswick, two. The departments were re-organized, and new ones established, to meet the changed conditions of things. The privy council was composed of the following ministers :' minis- ter of justice and attorney-general,' minister of militia,'^ ^ Can. Cons. Stat, pp.168, 169. ^ Confed. Debates, 1865, p. vii. Sir E. P. Tache was then premier of the Tach6-^Iacdonald ministry, and held tAvo offices, receiver-general and minister of militia. 3 B. N. A. Act, 1867, s. 63, 64 ; 45 Vict., c. 2, Quebec Stat. ; c. 14, Ont. Cons. Stat. ; Man. Cons. Stat., c. 6 ; 33 Vict., c. 3, s. 7, Can. Stat. ; British Col. Cons. Stat. c. 4, s. 2, 3 ; P. E. Island, Dom. Stat., 1873, p. xii. * Annual Register, 1878, pp. 9-10 ; Canada Gazette. Their salaries and designations are given in 31 Vict., c. 33, schedule. Salaries of ministers were subsequently increased by 31 Vict., c. 31, s. 2. ^ Functions of department set forth in 31 Vict., c. 39. ^ 31 Vict., c. 40. COXSTITITJOX OF TIIK GKSKllAL <;()VEliSMi:ST. 55 minister of customs/ minister of finance.- minister of }>ublic works,' minister of inland rfvcnne/ minister of marine and fisheries,* postmaster-general,** minister of agriculture,' secretary of state of Canada,"* receiver-gen- eral, 'secretary of state for the provinces, president of the privy council.'" In 1873, on a change of government, the number of ministers was increased to fourteen, two of them without portfolios." but by subsequent re-arrange- ment the num])cr was reduced to thirteen as bcfori', and P. E. Island, now a ^avi of the confederation, was repre- sented by one member in the cabinet.'- On two occasions since 1878. the speaker of the Senate received a seat in the council, though without portfolio,'" and the number of members of government was consequently increased again to fourteen. Since 1867, several changes have taken l)lace in the organization of the departments. In 1873, the office of secretary of state for the provinces was abolished, and a department of the interior organized, with the control and management of Indian afi'airs, domi- nion lands, geological survey, and some other matters ' 31 Vict, c. 43. - 31 Vict., c. o ; 32-33 Vict. c. 4, and other acts rclatin;.' to cxiK-iKliturcs and revenues. ■' 31 Vict., c. 12. See infra, p. 56. * 31 Vict.. 0. 49. ^ 31 Vict., c. 57. In 1877, the inanatrement of certain jiiers, liarbours, and breakwater-s, was transferred from the department of pubhc works to that of marine and fisheries. 40 Vict., c. 17. « 31 Vict., c. 10 ; 38 Vict., c. 7. ^ 31 Vict., c. 53. " 31 Vict., c. 42. " The department of receiver-general was not jirovided for by sj««-ial act, but his duties are defined and referred to in various acts. Scie 31 Vict, c. 5, etc. '" Neither of these otficee was provided for by special act. " Hon. E. Blake and Hon. II. AV. Scott, Annual Kegister, 1S7S, p. 30. '^/6. 30-31. P. E. Island has at present no rei>resentative in tlio cabi- net ; nor have Manitoba and British C'cjluinbia, '^ Hon. Mr. Wilmot, in 1878; Hon. Mr. McPherson, in 1S80. on ap- I)ointment of former to lieutenant-governorship of New Brunswick. So Can. Gaz., Nov. ousil)iiity of not follow- ing his ministers' recommendation, there can, I apprcliend, be no doubt that both law and practice empower him to do so." Sir Micliael Hicks- Beach, .Sec. of S. for Colonies; New Zealand Pari. P., 1878; Aj^.. A. 2, p. 14 ; New Zealand Gazette, 1878, pp. t>ll-14. o8 rMiLlAMESTAllY lysTIHTloys l.\ (JXADA. fill pul)lic or coiislitutioiial rt'a.so)is, to icliisc ihc a(lvienate."- More than that, in order to prevent that body beinff swamped at any time for political reasons, the constitu- tion expressly limits the number that can sit therein to seventy-eight.'^ Special regard has also been had to the peculiar situation of the province of Quebec, where the electoral divisions that existed f)revious to 1867 are main- tained, and a senator must consequently have his real property qualilication, or be resident, in the district lor which he is api)ointed — a j)rovision that was not consid- ered necessary for the other provinces.' The House of Commons, as first organized under the Act of Union, comprised one hundred and eighty-one mem- bers, but the number has, since the census of 1881, been increased to two hundred and eleven, in accordance with the principle of representation laid down in the constitti- tion."' In arranging the representation of the House of Commons, the question arose in the Quebec conference as to the best mode of preventing the diliiculty in the luture of too large a nttmber of members. It was to be expected that in the course of a few decades the population would largely expand, not only in the old provinces which first composed the dominion, but in the new provinces whicli would be formed sooner or later out of the vast North- ' Chap. ii. ^ Sir J. A. Macdonald, Confed. Deb. .'^5. ^ lb. p. 3G, on admission of Newfoundland, S2. Chaj). ii. * Hon. G. Brown said in the debate on Confederation (p. 89): "Our Lower Canada friends fell that they had French Canadian intere^sts and British interests to be inotected, and they conceived that the existing; system of electoral divisions would give protection to those separate interests." The principal object of this provision was to give a rejiresen- tation to the English-speaking population of Lower Canada, in the East- ern Townships especially, which have now two representatives in tho Senate. ^ Chap. ii. ■60 I'Mn.iAMr.xTAnv issTirrrioss is cwada AVesi. Unless .souk; di'iiiiilc i)iiii(ip](' was adopted to keep llic rcprosoiitution within a ('crtaiii limit the House of Commons mii^ht oAcntually become a too cumbrous, un- wieldy body. It was dccidi'd " to accept the representation of Lower Canada as a fixed standard — as a pivot on which the whole would turn — since that province was the })e8t suited for the; })uri)ose on account oi' the comparativ«dy p.n-manent character of its population, and from its having neither the largest nor the least number of inhabitants."* Hence the danger of an inconvenient increase when the representation is reviewed after each decennial census, has been practically reduced to a minimum. The question of the duration of parliament also obtained much consideration when the Quebec resolutions were under deliberation ; and it was finally decided to follow the example of New Zealand and give the Canadian parliament a constitutional existence of five years" '' from the day of the return of the writs for choosing the house," subject, of course, to be sooner dissolved by the governor- general, acting under the advice of the privy council . In this connection it is interesting to note that in 186Y, the writs for the dominion elections were issued on the 7th of August, and made returnable on the 24th of Sep- tember, except those for Graspe, and Chicoutimi. and Saguenay, which were to be returned on the 24th of October.^ The first parliament actually assembled in the month of November 1867, and lasted until the 8th of July, 1872, when it was formally dissolved, having completed its constitutional limit of five years, less a few weeks, from the return of all the writs. In 1872, the writs were made returnable on the 3rd of September, except those for Gaspe, Chicoutimi and Sa- guenay, Manitoba and British Columbia, which were to ' Sir J. A. Macdouald, Confed. Deb., 1865, p. 38. '-' Sir J. A. Macdonald, Confed. D., 1865, p. S'J. ^ Jour. [1807-8.] vii-x. COXSTJTi'TIOX OF HIE GEXJCRAL (;OV£IL\.]fj:XT. Gl be returned on the 12th of October/ but Parliament did not actually ass nnblc until the oth of March, 187-3. Thf second parliament continued in existence only until the 2nd of January.] 874,when it was dissolved, the writs beiuu* generally made returnable on the 21st of February, with the exception of those for the districts and proyinces just named, which had to be returned on the 12th of ^lan-h.- The third parliament assembled on the 26th of March, and lasted until the 17th of August, 1878, when it was dis- olved,^ haying sat in liye sessions of an ayerage duration of nearly ten weeks, and its constitutional existence hayina* been about seven mouths less than five years from the date of the return of all the writs in 1874. In 1878 the writs generally were returnable on the 21st of November, but Parliament did not actually assemble until the 13th of February, 1879. Only four sessions were held of the fourth parliament which Avas dissolved in the month of May. 1882, having been less than four years in existence since the dissolution of 1878. The provisions respecting the election of speaker, quo- rum, privileges, elections, money votes, royal assent and reserved bills, oaths of allegiance, use of the French language, will be found reviewed at considerable length in subseqtient parts of this work, especially devoted to such subjects. Parliament has full control of all dominion reveniu^s and duties, which form one consolidated revenue fund, to be appropriated for the public service in the man- ner, and subject to the charges provided in the Art of Union.^ The first charge thereon is the cost incident to the collection and management of the fund itself; the 1 Jour. [1873] vi-xi. '^ Jour. 1874, Proclamations v-ix. A separate, pniclainaticii lia»l to U< issued for Algonia, writ also returnable on the iL'tli of .Marcli. ^ Jour. [1879] vii-x. * Sec. 102-120. See 31 Vict. c. 4 and 5, and subsequent acts, re.sixwtin>r the consolidated revenue fund, and collection and niana;_'('nicnt of tin* revenue. 02 PARLTAMENTARY INSTfTlT/OXS /.V CAXADA. second charge is the aimuiil iiitcrcnt on the pu})li(; debts of the several i)rovinces ; the third charge is th<; salary of the governor-general, lixrd at ten thousand pounds sterling. A bill was passed in the first s<\ssion, reducing this salary to six thousand iixe hundred pounds. ]>ut it was re- served, and subsequently disallowed on the ground "that a reduction in the salary of the gov«'rnor, would place the office, as far as salary is a standard of recognition, in the third class among colonial governments.'" Vni. Constitution of the Provincial Governments and Legislatures —Organization of the North-West Territories.— Under the A., 187!», No. ID; Jh., ISSO, No. IS. Kt.r communication to parliament in accordance*, with law. Can. Com. .Tour. (1880) 24 ; Sen. J. (1880) 22-23. ' Sec. 61 B. N. A. Act, 18(J7. See form of oaths in Can. Sess I'., |ssl. No. 77. 2 Sec. 63, 65, 66, 67. * Despatch of the colonial secretary, 1879 ; Can. Soss. P., 188(i, No. 18, p. 8. 64 I'AllLIA MENTAR Y INSTITUTIONS IN CANADA. oriior cull now ])e coiifsidcii'd to represent the Crown.' It is boyond dis})utc', however, that he is liiUy authorized to exercise all the powers lawfully belont^ing to the sovereign in respect of assembling- or proroguing, and of dissolving the legislative assemblies in the provinces." A high judi- cial authority has expressed the opinion that "whilst it cannot for a moment be contended that th(! licutmant- g^overnors under confederation represent tlie Crown as the lieutenant-governors did before confederation, yet it must be conceded that these high officials, since confederation, do represent the Crown, though doubtless in a modified manner. They represent the queen as lieutenant-gover- nors did before confederation, in the performance of all executive or administrative acts now left to be performed by lieutenant-governors in the name of the queen."" The forty-first resolution of the Quebec conference de- clared that " the local government and legislature of each X)roviuce shall be constructed in such manner as the existing legislature of each such province shall provide." Accordingly, in the last session of the old legislature of Canada, an address was x>assed to the sovereign praying her " to cause a measure to be submitted to the Imperial Parliament to provide for the local government and legislature of Lower and Upper Canada respectively."* In accordance with this address the constitutions of Que- bec and Ontario were formally incorporated in the British North America Act of 1867. The legislature of Ontario consists of only the lieutenant-governor and one house, named the legislative assembly, composed in the first ' " They are officers of the dominion government — they are not her ]Majesty's representatives." Taschereau, J., in Lenoir vs. Ritchie. Can. Sup. Court R., vol. iii., j). 623. See also lb., vol. v., Mercer vs. Att.-Gen. of 0. •■' Todd, pp. 392-93. ^Ritchie, C. J., Mercer vs. Att.-Gen. of 0-, Can. Sup. Court R., vol- v., pp. 637, 643. * Leg. Ass. J. (1866) 362. I'R T 'IXC I A L coys TITUTIOXS. 65 instance of eighty-two members, elected for the same electoral districts which returned members to the House of Commons.^ After the census of 1871, there was are- arrangement of constituencies, and the number of repre- sentatives was increased to eighty-eight in all.-' The legislature of Quebec consists of a lieutenant- governor, a legislative council, and a legislative assembly. The legislative council comprises twenty-four members, appointed for life by the lieutenant-governor in the queen's name, and representing the same electoral dis- tricts from which senators are chosen;* The qualifications of the legislative councillors of Quebec are the same as those of the senators from the province/ The legislative assembly is composed of sixty-five members, elected for the same electoral districts represented by the members of the House of Commons for the province.'^ It is provided in the act that while it is always perfectly competent for the legislature of Quebec to alter these districts, it can only change the limits of certain constituencies, especially mentioned, with the concurrence of the majority of the members representing all those electoral divisions." The legislative assembly in each province is summoned by the 1 Leg. Ass. J. (1866) 363, resolution 12. B. X. A. Act, 1SG7, s. 09, 70, 1st sell. 2 Chap. 8, Rev. Stat, of Ontario, (38 Vict., c. 2, s. 1,) in ^vhich the elec- toral divisions are set forth. ■* Leg. Ass. J. (1866) 363 ; B. K A. Act, 1867, s. 71, 72 ami s. 22, subs. 3. Cons. Stat, of Canada, e. 1, Sch. A. * Sec. 73 and 23. '" Sec. SO and 40 : Doutre, p. 85. « These districts are Pontiac, Ottawa, Argentouil, Ilnntingilon, Missi.s- quoi, Brome, Shefford, Stanstead, Compton, Wolfe and Ricluuond, Mt"_'an- tic, town of Sherbrooke. Second Sched. B. N. A. Act, lS(i7. In tluao districts there is a large English S[x>aking and Protectant |»opulation, and it was considered expedient to insert this proviso securing it.s rights ; but the provision was opix)Scd in the legislature, in 1866, as unneavssary. II. Turcotte, oiW. 5 GO I'AJilJAMJJM'AJiy ly^'iTJTiTWNS IN CANADA. lientoiiant-g'ovenior in the queen's name. It has a con- .siitutional existence of lour years in Ontario,' and of five years in Quebec,^ subject to being dissolved at any time by the same authority that calls them tog-ether. A session must be held once at least in every year, " so that twelve months shall not intervene between the last sitting of the legis- lature in each province in one session and its first sitting in the next session."'' The provisions in the act res- I)ecting election and duties of speaker, quorum, and mode of voting, in the House of Commons, also apply to the legislative assemblies of the provinces in question.^ By an act passed in 1882, the speaker of the legislative council of Quebec remains in office during the parliament to which he has been nominated by the lieutenant-governor, and may not be a member of the executive council of the province. 5 The Act of 186 1 provides that the constitution of the executive authority as well as of the legislatures of the ' The Ont. Stat., 42 Vict., (1879) c. 4, s. 3, provides that every legislature of Ontario shall continue for four years from the 55th day after the date of the writs for the election and no longer ; that in caee a meeting of the legislature is necessary before the election for Algoma has taken place, the member elected for that district at the previous election shall repre- sent the same until the new election therefor has been held and the return made in due form ; that in such case the duration of the new assembly shall be for four years from the day for which the assembly shall be sum- moned to meet for the discharge of business and no longer, subject to being sooner dissolved by the lieutenant-governor. This provision was made to meet a constitutional question that had arisen as to the exact duration of the legislature — whether it could not last for four years from the date of the return for Algoma, which is much later than for the rest of the province. See Canadian Monthly, April, 1879, and Pari. Deb. of Ontario, 1879, as to the curious controversy that arose on this constitutional point. - Extended from four to five years, in 1881, by the legislature of Quebec, in accordance with subs. 1, s. 92 of B.X.A. Act ; 44—15 Vict.,c. 7. 3 Sec. 86. * Sec. 87. s Quebec Stat. 45 Vict., c. 3 PROVINCIAL coxsriTurioxs. GT provinces of Nova Scotia aud New Brunswick shall con- tinue as it existed at the time of the union until altered under the authority of that act.' These two colonies had, for very many years, enjoyed the advantages of representative institutions as liberal in all respects as those of the larger provinces of Canada. Under the French TBgime, and for some time after their conquest by the English these provinces were comprised in the large, ill-defined territory known as Acadia.- From 1713 to 1758 the provincial government consisted of a governor or lieutenant-governor and a council supposed to possess both legislative and executive powers. The constitution of Nova Scotia has always been considered " as derived from the terms of the royal commissions to the governors and lieutenant-governors, and from the instructions accompanying the same, moulded from time to time by despatches from secretaries of state, conveyino- the will of the sovereign, and by acts of the local legisla- ture, assented to by the Crown : the whole to some extent interpreted by uniform usage and custom in the colony.''* A legislative assembly met for the first time at Halifax' on ^ Sec. 64, 88. The power of amendment so conferred, has not been ■exercised in Nova Scotia — Gov. Archibald. Can. Sess. P., 1SS3, Xo. 70, p. 11. ^ Nova Scotia was formall}- ceded to Enjrland In- the Treaty of Utrecht, 11 April, 1713 ; Init ("ai)e Breton still remained a ixtssession of France until the conquest of Canada and the subsetiuent Treaty of Paris, which gave to Great Britain all the French possessions in British North America except the islands of St. Pierre, Miquelon and Lanjrley on the coast of Newfoundland, reserved for carrying on the fisheries. The Island of Cape Breton was under the government of Nova Scotia from 17G»> t<> 1784, when it was given a separate government, consisting of a lieu- tenant-governor and council. This constitution remained in force until the re-annexation of the island to Nova Scotia in 1820. Can. Se^s. P., 1883, No. 70, p. 10. ^ Governor Archibald in an interesting memoramhun on tiie early constitution of NoA'a Scotia in answer to an address of Parliament. Cau- Sess. P. 1883, No. 70, pp. 7-11. * Annapolis (Port Royal under the French regime) was the >eat of 68 j'AJ:LL\Mj:.\TAiiy issTiri'Tfoxs is caxada. the 2nd of October, 1758, and consisted of twenty-two mem- bers. It is interesting to note in this connection that the assembly promptly asserted the privileg-es of free speech, when a member's remarks had been called into qnestion, by declaring that " what he had said was as a member of the assembly, and that he was only accountable to them for what he had said."*' In the same session a person was committed to the custody of one of the messengers of the house for having assaulted a member on his way from the assembly." In 1838 the executive authority was separated from the legislative council, which became a distinct legisla- tive branch only." In 1840, a practical recognition was given for the first time to the principle of responsible government, in the formation of the executive council, but in reality the system was not fully realized until 1848.* In 1867, before the Act of Union came into force, the legislature of Nova Scotia passed an act limiting the number of members in the assembly to thirty-eight,^ and at the same time an address was proposed to limit the number of legislative councillors to eighteen.^ The number now varies from eighteen to twenty-one. In 1784, the proviuce ot New Brunswick which had received large accessions of loyalists from the United government until 1749. when Halifax was founded. II- Murdoch's Hist, c. 11. 1 II. Murdoch, 353. 2/6.354. 3 Can. Sess. P- 18S3, Xo. 70, pp. 8, 39. * Howe's Speeches and Letters vol. I. pp. 553, 562-4 ; Todd, 60 ; Eng. Com. P. 1847-8, vol.42, pp. 51-88. * Xova S. Stat, 30 Vict, c. 2 ; Eev. Stat (4th series) c. 4. For vacat- ing of seats, lb. c. 7. Duration of and representation in general assembly, c- 4. Executive and legislative disabilities, c 3. ^ Jour. Ass. (1867) 28. Efforts have been made in the Xova Scotia assembly to abolish the legislative, council as in Ontario, but so far fruitlessly on account of the opposition in the lattsr body. An. Reg. (1879) 179-80. See Rev. Stat. (4tli ser.) c. 2. PROVIXCIAL COXSTITUTIOXS. 69 States, was formally created, and a goverumeut established, consist iiig of a council of twelve members, having both executive and legislative functions, and of an assembly of twenty-six members ;' but in 1832, it was deemed expe- dient to follow the example of Nova Scotia and have the executive authority quite distinct from the legisla- tive council. In 1848, the principles of responsible government were formally carried out in accordance with the colonial policy adopted by the British government w^ith respect to the British American provinces generally.- In the Act of Union it was provided that the house of assembly of the province, elected in 18G6, should, " unless sooner dissolved, continue for the i^eriod for which it was elected."^ The legislature now consists of a lieutenant-governor, a legislative council of eighteen members,* and an assembly of forty-one members, elected -every four years.'* The island of Prince Edward, formerly known as St. John," formed part of the province of Nova Scotia until 1769, when it was created a separate province with a lieutenant-governor, a combined executive and legisla- tive council, and eventually a legislative assembly of eighteen members.'^ The government of the province was always largely influenced by the proprietors of the lands of the island, distributed by the lords of trade and ' The first governor was Colonel T. Carleton, brother of Lord Dorches- ter. The government va-s frequently administered by presidents of the executive council, and by military chiefs. See copy of the coniniis- sion of governor, giving him power to api^oint a council, create courts and call an assembly, etc. Can. Sess. P. 1883, No. 70, p. 47. 2 Todd, Pari. Govt, in the Colonies, GO. •' Sec. 88. * New B. Cons. Stat. 1877, c. 3, s. 1. 5 lb. c. 4, s. 79. ^It was finally ceded to Great Britain by the Treaty of Paris. 17ti3. The name was changed in 1798 in honour of E<^lwar170 provided for a lieutenant-governor, an executive council, of not less than five persons in the first instance, a legislative coun- cil of seven members, to be increased to twelve after four years, and a legislative assembly of twenty-four mem- bers elected to represent electoral districts set apart by the lieutenant-governor.' In 1876 Manitoba abolisht^l the legislative council, and the legislature consequently now consists only of the lieutenant-governor and assem- bly.^ The same provisions as in the other provinces exist with respect to the duration of the legislature and its meet- ing once every year. Either the French or English language may be used in the records and debates. The present assembly consists of 31 members.'^ In 1859 Vancouver Island was constituted a Uriiish colony,^ and about the same time it became necessary to establish a similar government in British Columbia in order to maintain order among the people, attracted by the gold discoveries f but in 1866 both colonies were united'' and in 18tl, as previously shown, they became part ot the dominion of Canada.' Previous to the union, the province of British Columlna was governed by a lieutenant-gover- nor, and a legislative council composed of heads of depart- ' .S'w/>m p. 46 ; 33 Vict., c. 3. See Sess. P. 1S71, No. 20, for measures taken to organize tho provincial government. - Man. Stat, 39 Vict., c. 28. Pari. Companion, 1878, p. 310; Stv^. I'ap. 1876, No. 36. ■* Man. Stat., 4-4 Vict., c. 12, s. 4. ' Sir James Douglas, the local agent of the Hudson's P>ay Company, Avhich had trading privileges over the island and mainland until the os- tablishmont of Colonies, became the first governor. ^ The Hudson's Bay Company's trading license was revoked ami a colony established in 1858, by 21 and 22 Vict. c. lt!>. The colony had, when first created, no form of rejiresentative government. Col. Ollico List, 1883, p. 37. " Col. Othce L., 1883. p. 37. ' iSupra p. 46. "72 PARLIAMEXTAUY ISSTITITIOXS I.\ CANADA. luents and other i)ubli(; olliccrs ;' huL it was expressly declared in the terms of union that " the government of the dominion will readily consent to the introduction of res- pon.sil)le government when desired by the inhal)itants of British Columbia," aud that it was the intention of the governor of that province, under the authority of the sec- retary of state for th(! colonies, " to amend tht; existijig con- stitution of th(; legislature by providing that a majority of its members shall be elective."- Since its admission, British Columbia has a local constitution similar to that of some of the other provinces ; a lieutenant-governor, an executive council, responsible to the legislature, and one house only, a legislative assembly of twenty-five members.'^ Since the acquisition of the North-West the Parliament of Canada has provided a simple machinery for the gov- (ernment of that vast territory, preparatory to the formation ■of new provinces therein. The first act passed in 1869 was only of a temporary character, and, as previously shown, it never practically came into operation :^ but in the act of the following year, forming the new province of Manitoba, provision w^as also m.ade for the government of that portion of Euperts' Land and the North- West Terri- tory, not included within the limits of that province. In subsequent sessions other acts w^ere passed, and in 1880 all the legislation relating to the North-West Terri- tories was consolidated into one statute.'^ The territories are now governed by a lieutenant-governor, or adminis- ^ A legislative council of 15 persons was first established in 1863, ami "was enlarged to 23 members on the union with Vancouver Island. In 1870 other constitutional changes took place, by which nine unofficial members were elected bj^ the people. Col. 0. List, 1883, p. 37. - Can. Sess. P. 1867-8. No. 59 ; Stat, for 1872, p. Ixxxix. Col. Office List, 1883, p. 37. •' B. C. Cons. Stat., c. 42. * Supra p. 45 ; 32 and 33 Vict. c. 3. '= Can. Stat, of 1870, c. 3 ; 1871, c. 16 ; 1873, c. 5 ; 1875, c. 49 ; 1877, c. 7 ; ISSO, c. 25, Consolidating Act. By 45 Vict. c. 28, s. 1, the act of 1880 is declared not to be a now law, but a revision, consolidation and continuation of 38 Vict. c. 49, and 40 Vict. c. 7, subject to the changes contained therein. ORGAXr/ATIOX OF THE yORTH-WKsT. 73 trator, appointed by the goveriior-u'eiieral iu council. The law provides lor a council, composed of the stipendiary magistrates in the territory and other persons, appointed in the first instance by the governor-general, \vith the advice of his ministry. The lieutenant-governor in council may make ordinances for the government of the North-West Territory, within certain limitations set forth iu the act, and copies of such ordinances must ])e mailed to the secretary of state within thirty days alter their passing ; the governor in council may disallow such ordinances within one year after their receipt. The ordin- ances of the council, and all orders of the governor in coun- cil disallowing any of them, must always belaid formally before parliament as soon as it can be conveniently done'. Provision is also made for the erection of electoral districts and the election of members of council, according as the territory increases in population ; and a legislative assembly may be formed in place of a council, as soon as the elected members of any council amount in all to twenty-one. The assembly must be summoned at least once a year, and shall present all ])ills to the lieutenant- governor for his assent. The members are to hold their seats in the assembl}'' for two years. Electoral districts have been already formed in the territories and elections for the council held in accordance with the act. Pending the settlement of the western boundary of Ontario, it was considered expedient in 1870 to create a .separate territory out of the eastern part of the North- West.- This territory is known as the district of Kee- watin,-' and is under the jurisdiction of the lieuten;nit- governor of Manitoba, ex-qlJivio, who may have the assist- ance, if necessary, of a council, of not less than live persons and not more than ten, to aid him in the administration of affairs, with such powers as may be conferred ui>on 1 Sess. P. 1879, No. 86. ^soviet., c. 21. ^ Sometimes Kcewavdiii. 74 PA i:l I a mkxta ii v jxst/ti tkjxs ix ca xa da . thorn by ordor of tho o-ovornor in coniicil.' This arrange- moiit of a separate district is altog-cithcr of a provisional natnre, and will probably come entirely to an end with the rapid developement of the North- West T(jrritories.- The district of Keewatin has be<'n materially altered by the extension of the limits of Manitoba, in accordance with acts passed since 18*76.'* Before passing from this historical review of the establishment of government in the North-Wcst Terri- tories, it is necessary to notice here the fact that it was found expedient to obtain certain legislation in 1871 from the Imperial Parliament in order to remove doubts that were raised in the session of 1869, as to the power of the Canadian legislature to pass the Manitoba Act,, especially the provisions giving representation to the province in the Senate and House of Commons. It appears that the address passed in the first session of the Parliament of Canada contained no provisions with respect to the future government of the country, whilst the general purview of the British North America Act,. 1867, as respects representation in the Senate and House of Commons, seems to be confined to the three provinces of Canada, Nova Scotia and New Brunswick, originally forming the dominion. "Whilst the admission of New- foundland and Prince Edward Island is provided for, no reference is made to the future represontation of liupert's Land, and the North-West Territory, or British Columbia. ^ No such orders appear in the statutes of Canada. ■^ Can. Hans. (1870) 86, remarks of ]Mr. Mackenzie, then premier, in introducing bill. ^ 40 Yict., c. 6, defined new boundaries of the province of ^lanitoba and Keewatin. By 44 Yict. c. 14, the boundaries of the province of Manitoba were extended. For debates as to boundary question, see Sen. Hans. (1880-1) 60G et seq., Com. Hans. (1880-1) 2 vol. p. 1443 et seq. In accordance with a resolution passed in the session of 1882 four divisions were marked out in the North- West Territory, for postal and other pur- poses, viz : Alberta, Athabasca, Assiniboia, and Saskatchewan. Com. J. (1882) 509. Canada Gazette, Dec. 1882. ORGAXIZATIOX OF THE XORTH-WEST. 75 Under these circumstances an act was passed through the Imperial Parliament substantially in accordance with a report submitted by the Canadian minister of justice to the privy council, and transmitted to the secretary of state for the colonies by the governor-a-eneral. This act g-ives the Parliament of Canada power to establish new provinces in any territories of the dominion of Canada, not already included in any province, and to provide for the constitution and administration of such provinces. Authority is also given to the Canadian Parliament to alter the limits of such provinces Avith the consent of their legislatures. The previous legislation of 1860 and 1870 respecting the province of Manitoba and the North- West, was sanctioned formally in the act.* It is expressly provided in the British Xorth America Act that the local legislature may amend from time to time the constitution of a province, except as regards the office of lieutenant-governor", and the provinces of Brit- ish Columbia and Manitoba have already availed them- selves of the power thus conferred by abolishing the legislative council.' The provisions in the act relating- to the speaker, cpiorum, mode of voting, appropria- tion and tax bills, money votes, assent to bills, disallowance of acts and signification of pleasure on reserved bills — that is to say, the provisions affecting* the parliament of Canada, extend to the legislatures of the several provinces. In accordance with these pro- visions any bill passed by a legislature of a province may ' Imp. Stat. 34 and 35 Vict, c. 28; see Can. Stat, for 1872, p. lii. For history of this question, Sess. P. 1871, No. 20 ; Com. Jour. (1871), 130, \A\ 291. The Imp. Act 31 and 32 Vict. c. 92 enabled the le-rislaturo of Kew Zealand to withdraw i)art of a territory from a provinc-e and form it into a county. ^ Sec. 92, sub-sec. 1., and as resjx'cts iirovincas (omiuL' in after 18417, see Can. Stat. 1870, c. 3, s. 2, 10 ; 1S72 p. Ixxxviii, s. Id and 14 ; ls7:;, pp. xii-xiii, t^c. ^ See supra p. 72, (British Columbia,) ; p. 71, (Manitoba) ; al.so p. OtJ, »». as to duration of Quebec legislature extended to live years. ^76 I'AllLIAMEIsTAnY jysTlTL'TIOXS IX CAXADJ. now bo disallowed by the dominion g-overnment within one year after its passai^e.' The lieutenant-govL'rnor may also reserve any bill for the " signification of the pleasure of his l!]xcellency the Govcrnor-G-eneral," and it cannot go into operation unless ofiicial intimation is received, within one year, of its having been approved/' IX. Disallowance of Provincial Acts.— The same powers of disallowance that belonged to the imperial government previously to 186Y, with respect to acts passed by colonial legislatures, have been confeiTed by the British North America Act on the government of the dominion. It is now admitted beyond dispute that the power of confirm- ing or disallowing provincial acts has been vested by law absolutely and exclusively in the governor- general in council.' In the first years of the confederation it became, therefore, necessary to settle the cours^ to be pursued in consequence of the large responsibilities devolved on the general government. As it was considered of importance " that the course of local legislation should be interfered with as little as possible, and the power of disallowance exercised with great caution, and only in cases where the law and general interests of the dominion imperatively demanded it," the minister of justice in 1868 laid down certain principles of jjrocedure, which have been generally followed up to the present time. On the receipt of the acts passed in any i^rovince, they are immediately referred to the minister of justice. He thereupon reports those 1 Sec. 87, 90. Also Manitoba Act, 33 Vict. c. 3, s. 2. 21 ; British Colum- "bia, 1872, p. Ixxxviii, s. 10 ; P. E. Island p. xxii. - See chapter respecting bills. ^ Can. Sess. P., 1S77, No. 89, pp. 407, 432-34. In the Commons' paj^ers ■will be fonnd the arguments advanced by ]\lr. Blake, when minister of justice, to show that the Canadian ministry must be directly and exclu- sively responsible to the dominion parliament for the action taken by the governorjin any and every such case, and that a governor who thinks it necessary that a provincial act should be disallowed, must find minis- ters who will take the responsibility of advising its disallowance. lb. (1S7G) No. IIG, pp. 79, 83. lb. (1877) No. 89, pp. -:49-45S. DISAI.LOWJXCE OF PIIOVIXCIAL ACTS. 77 acts Avhip. (>-7. -Ontario, 5; Quebec, 2 ; Xova Scotia, 5, Manitoba, 7; British Culuin- bia, 12. Can. Sess. P., 1882, No. 141, pp. 29-30. The following talilo shows the total number of acts passed by all the provinces of the domi- nion during the period named above: — Ontario 1358 (^lebec 1105 Nova Scotia 1414 New Brunswick 1302 P. E. Ii^land (since 1873) 313 Manitoba ( " 1870) 477 B. Columbia ( " 1871 j :;24 Total numl>er of acts (i2''3 •18 PARLIAMENTARY INSTITUTIONS IN CANADA. papers relating- to this question proves that, whilst but few acts have been disallowed, the legislation has been considered i^artially objectionable in many cases by the law officers of the dominion ; but, in such cases generally, every opportunity has been given to the local govern- ments to remove the objections pointed out by the minister of justice/ Considerable discussion has arisen, however, in and out of parliament with respect to two cases of disallowance, viz. : " An Act for protecting the public interests in rivers iind streams " (Ontario Stat., 1881), and " An Act to incor- porate the Winnipeg South-Eastern Railway Company," (Manitoba Stat., 1881). It appears that one McLaren, a lumberman, constructed certain works on non-floatable streams, of which he claimed to be seized in fee-simple, for the purpose of carrying his logs to their destination. One Caldwell, carrying on the same business higher up than the former, claimed the right to use these streams under the first section of chapter 115, R. S. 0., as follows : "All per- sons may, during the spring, summer and autumn freshets, float saw-logs, and other lumber, rafts and craft down all streams." McLaren obtained an injunction from the court of chancery, restraining Caldwell from, making use of the improvements in question, on the ground that the words " all streams " only referred to those floatable iu a state of nature, and that the streams in question were not navigable for saw-logs or other lumber without artificial improvements.- Subsequently, in 1881, the legislature of Ontario passed an act re-enacting the section cited above, and at the same time declaring that its provisions '' Can. Sess. P., 1882, No. 141, pp. 2-29. ^ The supreme court of I^Canada, in November, 1882, affirmed the decree of the court of chancery, and 'reversed the decision of the court of appeal of Ontario to the effect that the E. S. 0., c 115, s. 1, re-enacting C S. U. C, c. 48, s. 15, made all streams, whether artificialh' or naturally Hoatable, public waterways. An appeal has been allowed to the privy council. Can. Law Times, 1882, pp. 90-91. lb., 1SS3, p. 340. DISALLOWANCE OF PROVIXCIAL ACTS. 79 shall extend to all streams and all constructions and improvements thereon ; and that all x^ersons might make use of such improvements on paying a reasonable toll ^to be fixed by the lieutenant-governor in council) to the jDerson who has made these improvements on the streams. An appeal w^as made to the governor-general in council to disallow the act on the ground that it was unconstitutional, inasmuch as it deprived the petitioner of extensive and important private rights without provid- ing adequate compensation, and as it embodied ex ])ost facto legislation, contrary to all sound principles that should govern in such cases. The minister of justice advised, and the privy council concurred in the advice, that the act be disallowed for these reasons principally : " That the act seems to take away the use of the owner's property and give it to another, forcing the owner practi- cally to become atoll-keeper against his will, if he wished to get any compensation for being thus deprived of his rights. That the power of the local legislatures to take away the rights of one man and vest them in another, as is done in the act, is exceedingly doubtful ; that, assum- ing such a right does in strictness exist, it devolves upon the dominion government to see that such power is not exercised in flagrant violation of private rights and natural justice, especially when, as in this case, in addition to interfering with private rights in the way alkided to, the act over-rides a decision of a court of competent jurisdic- tion by declaring retrospectively that the law always was, and is, different from that laid down by the court." To this decision strong objection was taken by the govern- ment of Ontario, in an elaborate state-paper, in which it is emphatically ttrged that the governor-general in council should not assume to review any of the provisions of an act passed by the provincial legislature onasu])]\Mt within its competency under the British North America act.^ The legislattire of Ontario subsequently re-enacted ' Can. Sess. P., 1882, Nc. 14na. Ilan.s., pp. 87(i-92fl. 80 ]-AR]JAMi:XTA]:y LXSTITI'TIOXS in CANADA. the art of 1881, whicli Avas a^aiu (lisallowecl )>y the government of the dominion. Th(^ act of the Manitolja k'^'islature, incorporating- the Winnipeg South-Eastern Kailway Company, was disal- lowed because it conflicted with " the settled polic-y of the dominion, as evidenced by a clause in the contract with the Canadian Pacific Eailway," which was ratified by Parliament in the session of 1880-81 ; which clause is to the effect that " for twenty years from the date hereof no line of railway shall ba authorized ])y the dominion parliament to be constru -ted south of the Canadian Pacific Railway, except su':'h line as shall run south-west or the westward of south-west, nor to within fifteen miles of latitude 49." The government of Manitoba contended at the time that the act was " strictly within the jurisdic- tion of the legislature of the province.'" These two cases are cited at some length as showing the large power assumed by the dominion government under the law giving them the right of disallowing provincial enactments. The best authorities concur in the wisdom of interfering with provincial legislation only in cases where there is a clear invasion of dominion juris- diction, or where the vital interests of Canada as a whole imperatively call for such interference. The powers and responsibilities of the general government in this matter have been well set forth by a judicial authority : '' There is no doubt of the prerogative right of the Crown to veto any provincial act, and to apply it even to a law over which the provincial legislature has complete jurisdic- tion. But it is precisely on account of its extraordinary and exceptional character that the exercise of this prerog- ^ Can. Sess. P., 1882, No. 166. The government of Canada has also disallowed the acts of Manitoba to incorporate the Manitoba Tramway Co., to incorporate the Emsrson and North- Western RR. Co., and to encourage the building of railways in Manitoba, on the ground also, that they were "in conflict with the settled policy of the dominion govern- ment in regard to the direction and limits of railway construction in the territories of the dominion." DISTPdB I'TIOX OF LEGISLA TIVE PO WERS, 81 ative will always be a delicate matter. It will always be very difficult for the federal government to substitute its opinion instead of that of the legislative assemblies, in regard to matters within their jurisdiction, without expos-^ ing itself to be reproached with threatening the inde- pendence of the x^rovinces." The injurious consequences that ma}^ result in case a province re-enacts a law, are manifest : "probably grave complications would follow," And in any case, " under our system of government, the disallowing of statutes passed by a local legislature after due deliberation, asserting a right to exercise powers which they claim to possess under the British North America Act, will always be considered a harsh exercise of authority, unless in cases of great and manifest neces- sity, or where the act is so clearly beyond the powers of the local legislature that the propriety of interferin'"^ would at once be recognized." ^ X. Distribution of Legislative Powers. — In the distribution of the leg-islative powers entrusted to the general parlia- ment and the local legislatures respectively, the constitu- tion makes such an enumeration as seems well adapted to secure the unity and stability of the dominion and at the same time give every necessary freedom to the several provinces in the management of their local and muni- cipal aifairs. In arranging this part of the constitution,, its framers had before them the experience of eighty years' working of the federal system of the United States, and were able to judge in what essential and fundamental respects, that system appeared to be defective." The doctrine of state sovereignty had been pressed to extreme' lengths in the United States, and had formed one of the ' Can. Sup. Court R., vol. 2, Richards, C. J., p. 96; Fournier, J., p. 131 Sir J. A. Macdonald: Conf. Deb., 1865, p. 32: "I am strongly of opinion that we have in a great measure avoided in this system which we propose for the adoption of the people of Canada, the defects whicli time and events have shown to exist in the American constitution, ttc."' 6 82 PARLIAMENTARY INSTITUTIONS IN CANADA. most powerful arguments of the advocates of secession. This doctrine had its origin in Ihe fact that all powers, not exx^ressly conferred upon the general government, are reserved in the constitution to the states.' Now in the federal constitution of Canada, the very reverse principle obtains with the avowed object of streng- thening the basis of the confederation, and preventing conflict as far as practicable between the provinces that compose the union." This constitution emanates from the sovereign authority of the Imperial Parliament vv'^hich has acted in accordance with the wishes of the people of the several provinces as expressed through the constitutional medium of their respective legislatures. This imperial charter, the emanation of the combined wisdom of the Imperial Parliament and the subordinate legislatures of the several provinces affected, confers upon the general government the exclusive legislative authority over all matters respecting the public debt, regulation of trade and commerce, postal service, naviga- tion and shipping, Indians, census and statistics, and all other matters of national import and significance.'^ On the other hand the local legislatures may exclusively make laws in relation to municipal institutions, manage- ment and sale of public lands belonging to the province, incorporation of companies with provincial objects, property and civil rights in the x^rovince, and ^ The 10th art. of the Am. Cons- reads : " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to tlie States respectivelj', or to the people." This art. did not appear in the first Constitution of 1787, but was agreed to with other amendments by tlie first Congress in 1789, and subsequently ratified by the States. See Smith's Cons., Manual and Digest, 4th ed., published by order of Congress, 1877. - Sir J. A. INIacdonald : Conf. Deb., 1865, p. 33 : " We have thus avoided that great source of weakness which has been the cause of the disruption of the United States. "We have avoided all conflict of juris- diction and authority," etc. ^ B. K. A. Act, 1867, s. 91. See appendix to the work. DISTRIB UTION OF LEGISLA TIVE PO WERS. 83 " generally all matters of a merely local or private nature in the province.'" The provincial legislatures have also exclusive povv'^ers of legislation in educational matters, subject only to the right of the dominion Parliament to make remedial lav^^s under certain circumstances.- The object of this provision is to secure, as far as practicable by statute, to a religious minority of a province the same Tights, privileges and protection which it may have enjoyed at the time of the union.'' The local legislatures may, however, legislate as to separate schools, provided that the legislation be not such as prejudicially affects the rights or privileges theretofore possessed by such schools, and they may pass laws interfering with unim- portant matters such as the election of trustees, or the every day detail of the working of such schools, as settled by statute prior to confederation.^ The general parliament and local legislatures have also concurrent powers of legislation respecting agriculture and immigration, pro- vided the provincial law is not repugnant to any act of the Parliament of Canada.' The powers of the provincial governments are distinctly specified in the Act of Union, whereas those of the general government cover the whole ground of legislation not so expressly reserved to the provincial authorities.'' The dominion government 1 Sec. 92. - 2 Sec. 93. ^ See New Brunswick School Law Controversy, Todd, Pari. Gov. in the Colonies, pj). o46-o52, Can. Sess. P. 1877, No. 89. A reference to the correspondence on this vexed question clearly shows that both the imperial and dominion authorities concurred in the view that it is not proper for the federal authority to attempt to interfere with the details or accessories of a measure of the local legislature, the principles and objects of which are entirely within its competencj'. * Board of School Trustees vs. Granger et al., 2.5 Grant, Ch. 570. * Sec. 95. " " The government of the United States is one of enumerated i)0wcrs, and the governments of the States possess all the general powers of legis- lation. Here (in Canada) we have the exact opi)osile. The powers of the provincial governments are enumerated, and the dominion government 84 i'AnLrA)f/:xrARY ixsTirrrioxs i.\ casada. is aiTthorized in express terms " to mak(^ laws for the- peace, order, and good government of Canada in relation, to all matters not coming- within the classes of subjects by this act assigned exclusively to the legislatures of the provinces" ; ^ and in addition to this sjx'ciiic jn-ovi- sion it is enacted that " any matter coming within any of the classes of subjects enumerated in this section (that is, the 91st respecting the powers of the general parlia- ment) shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects assigned exclu- sively to the legislatures of the provinces." It must necessarily happen that, from time to time, in the operation of a written constitution like that of Canada^ doubts will arise as to the jurisdiction of the general government and local legislatures over such matters as- are not very clearly defined in the sections enumerating- the powers of the respective legislative authorities. No grave difficulty should arise in arriving sooner or later, as a rule, at a satisfactory solution by means of the decisions of the judicial committee of the privy council, and of the hio'her courts of the dominion. An act establishing a supreme court for Canada was passed in the session of 1875, in accordance with the 101st section of the British North America Act, 1867, which provides " for the consti- tution, maintenance and organization of a general court of appeal for Canada."^ This court has an appellate juris- diction in cases of controverted elections, and may examine and report upon any private bill or petition for the same. The governor in council may refer any matter to this possesses the general powers of legislation." Ritchie, C. J., Can. Sup. Court R., 13 April, 1880, vol. III., p. 536. 1 See ir?/ra, p. 94. Judgment of privj' council re " Canada Temperance Act," showing the large po\\ers given to the dominion government by this provision of the B. N. A, Act, 1867. - 38 Vict.,c. 11. Lord Durham, in his report (p. 123), recommended the establishment of a "Supreme Court of Apfieal for all the ^North American, colonies." DECISIONS ON QUESTIONS OF JURISDICTION. 85 ■court for au opinion. It shall also haA'e jurisdiction in cases of controversies between the dominion and the provinces, and between the provinces themselves, on condition that the legislature of a province shall pass an ^ct agreeing' to suchjurisdiction.' Many important cases of doubt as to the construction to be placed on the 91st and 92nd sections of the British North America Act, 1867, have already been referred to the privy council and to the supreme court of the dominion. Already in Canada, as in the United States, a lar^e amount of constitutional learning and research is being brought every year to the consideration of the per- plexing questions that must unavoidably arise in the interpretation of a written constitution. It will be probably useful to cite some of the more important decisions given by the high tribunals just mentioned, with the view of showing the conclusions they have formed with respect to the legislative powers of the dominion Parliament. XI. Decisions of the Privy Council of England and of the Supreme Court of Canada on Questions of Legislative Jui'isdiction. — In 1874, the dominion Parliament passed an act imposing on the judges of the superior courts of the provinces the duty of trying controverted elections of members of the House of Commons.'- The question was raised in the courts, whether the act contravenes that particular provision of the 02nd section of the B. N. A. Act, which exclusively assigns to the provincial legislatures the power of legislating for the administration of justice in the provinces, includinii' the •constitution, maintenance and organization of provincial courts of civil and criminal jurisdiction, and including procedure in civil (not in criminal) matters in those courts. The question came at last before the supreme ^ Sec. 52, .33, 54. The legislature of Ontario in 1S77 pa.sr^etl 4(t Vict., c. 5, autlioriziiiir such reierent;es. ^ " Tlio JJomiiiioii Controverted Elections Act, l!S74 " ; 37 \'iit. c. 10. 86 /'J /.'/> /. 1 MENTARY INSTITUTIONS IN CANADA. court ol" Canada, \vhi•. Jolinston. This juil;.'nient of the Supreme Court affirmed the judgments of the Court of ApiK^al for Ontario (4 App. Rep., Ont., 9tJ, 10:5), which had allirmed the juilgnients of the Queen's Bench ; 43 U. C, (^ B. 201, 271. '88 rAUIJAMENTARY INSTITUTJOSS AY CANADA. commerce " by the various aids to their int(,'r])relatioii, they woukl include political arrang-ements in regard to trade requiring the sanction of Parliament, regulation of trade in matters of inter-provineial concern, and it may be that they would include general regulation of trade alfecting the whole dominion. Their lordships, however, abstained from any attempt to define the limits of the authority of the dominion Parliament in this direction. It was sufficient for the decision of the case under review to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance, in a single province, and therefore that its legislative authoritv did not in the present case conflict or compete with the power •over property and civil rights assigned to the legislature of Ontario by sub-s. 13 of s. 92. That the act in question, so far as relates to insurance on property within the province, may bind all fire insurance companies, Avhether incorporated by imperial, dominion, provincial, colonial, or foreign authority. That the act of the dominion Parliament,^ requiring insurance companies to obtain licenses from the minister of finance as a condition to their carrying on business in the dominion, is a g'eneral law applicable to foreign and domestic corporations, and in no way interferes with the authority of the Ontario legislature to legislate in relation to the contracts which corporations may enter into in that province.' In pursuance of authority given by the imperial act (16 Vict., c. 21) the province of Canada passed an act (18 Yict, c. 82), in consequence of which, in 1855, an arrange- ment was made with the government for the creation of a 1 38 Vict., c. 20. •^ 45 L. T. N. S. 721 ; Cartwright, 26.5. The Citizens and Queen Insur- ance Cos. V. Parsons. See chap, on private bills, Avhere dominion legis- lation on insurance is reviewed at considerable length. DECISIOXS OX QUE.'uccn. (»n :ippL'al from a judgment of the Court of Queen's Bcndi for Ontario. •' 31 Vict., c. GO. 92 J'AIlLlAMKXTMiY ISSTITI'TIONS IN CASADA. fishery under his lease. Th(? supreme court of Canada was at hist calh'd upon to decide whether an exclusive right of iishing existed in the parties who had received the conveyances. In other words, the court was practic- ally asked to decide the question : Can the dominion Parliament authorize the minister of marine and iisheries to issue licenses to parties to llsh in rivers such as that described, where the lands are ungranted, or where the provincial government has before or after confederation granted lands that are bounded on, or that extend across such rivers ? The court decided : That the license granted by the minister of marine and fisheries was void, because the act in question only authorizes the granting of leases " where the exclusive right of fishing does not already exist bylaw," and in this case the exclusive right belonged to the owners of the land through which that portion of the river flows. That the legislation in regard to " inland and sea fisheries " contemplated by the B. N. A. Act is not with reference to property and civil rights — that is to say, not as to the ownership of the beds of rivers or of the fisheries, •or the rights of individuals therein, but to subjerts affect- ing the fisheries generally, tending to their regulation, protection and preservation, matters of a national and general concern ; in other words, all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large. That the Parliament of the -dominion may properly exercise a general power for the protection and regulation of the fisheries, and may author- ize the granting of licenses, where the property, and therefore the right of fishing thereupon, belong to the dominion, or where such rights do not already exist by law ; but it may not interfere with existing exclusive rights of fishing, whether provincial or private. That consequently any lease granted by a dominion minister to fish in fresh-water non-tidal rivers, which are not the property of the dominion, or in which the soil is not in the dominion, is illegal ; that where the exclusive right DECISIONS ON QUESTIONS OF JURISDICTION. 93 to fish has heen acquired as incident to a STant of hind through which such river Hows, the Canadian Parliament has no power to grant a right to fish. That the nngranted lands in a province being in the Crown for the benefit of the people, the exclusive right to fish follows as an inci- dent, and is in the Crown as trustee for the benefit of the people of the province, and therefore a license by the min- ister of marine and fisheries would b(^ illegal.' In 1878, the Parliament of the dominion passed an act cited as the " Canada Temperance Act, 18*78." The preamble sets forth " that it is very desiral)le to promote temperance- in the dominion, and that there should be uniform leo-isla- tion in all the provinces regarding the traffic in intoxicat- ing liquors." The act is divided into three parts, the first of which relates to " proceedings for bringing the second part of this act into force ;" the second to "prohibition of traffic in intoxicating liquors ;" and the third to "penalties and prosecutions for offences against the second part." The efiect of the act when brought into force in any county or town within the dominion is, describing it generally, to prohibit the sale of intoxicating liquors, except in whole- sale cjuantities, or for certain specified purposes, to reo-ulate the traffic in the excepted cases, and to make sales of lic[uors, in violation of the prohibitions and regulations contained in the act, criminal offi^nces punishable by fine, and for the third or subsequent offence, by imprisonment. The supreme court of New Brunswick in 1879 decided" that the act was ultra vires, but the supreme court of Canada subse- quently held that it was within the competency of the Parliament of Canada, and inter alia that under the second ' Can. Sup. Court R., vol. vi., pp. 52-143. Tho Queen ra. Eobertson. On appeal from the exchequer court of Canada (G-\vynne, J.) wiiicli licKl inter alia that the exclusive right of fishing existed in the i)ersons having the conveyances. The supreme court of IS^ew Brunswick had also decided adversely to the exclusive right of the lessee of the dominion government to fisli under his lease. 2 Pug. and Bur., 580. - 3 Pug. and Bur., 131). "94 rAHLIAMJ'JXTARY INSTITUTIONS IN CANADA. sub-8octioii of th(? Olst section of the B. N. A. Act, " regulation of trade and commerce," Parliament alone has the power of regulating the traffic in intoxicating liquors in the dominion or any part of it.' The whole matter came finally before the privy council who do not dissent from this opinion, but base their decision on other grounds which render it unnecessary to discuss the question of trade and commerce. Their lordships considered fully the point whether the act falls within any of the three classes of .subjects enumerated in section 92 and assigned exclusively to the provincial legislatures, viz : 9. Shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for provincial, local or municipal purposes. 13. Property and civil rights in the province. 16. Gi-enerally, all matters of a merely local or private nature in the province. Their lordships decided that the act does not fall within any of these classes of subjects, for the following reasons : The act is not a fiscal law — a law for raising revenue ; on the contrary the effect of it may be to destroy or dim- inish revenue ; and consequently could not have been passed by the provincial legislature by virtue of any au- thority conferred upon it by sub-section 9. And supposing the effect of the act to be prejudicial to the revenue derived by the municipality from licenses, it does not follow that the dominion Parliament might not pass it by virtue of its general authority " to make laws for the peace, order and good government of Canada." The act does not properly belong to the class of subjects, " property and civil rights." It has in its legal aspect an obvious and close similarity to laws which place restrictions on the sale or custody of poisonous drugs, or of dangerously explosive substances. The primary matter dealt with is the public order and safety. Upon the same considerations the act cannot be regarded as legislation in relation to civil rights. In however large a ^ Can. Sup. Court R., vol. iii. j^p. 505-574;. DECISIOXS OX QUESTIONS OF JURISDICTION. 95 sense these words are used, it could not have been intended to prevent the Parliament of Canada from declaring and enacting certain uses of property and certain acts in relation to property, to be criminal and w^rongful. Laws designed for the promotion of public order, safety or morals, and which subject those who contravene them to criminal l)rocedure and punishment, belong to the subject of i)ublic wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of Parlia- liament, to make laws for the order and good government of Canada, and have direct relation to criminal law, which is one of the enumerated classes of subjects assigned exclu- sively to the Parliament of Canada. Few, if any, laws could be made by Parliament for the peace, order and good gov* ernment of Canada which did not in some incidental way affect property and ciA^il rights ; and it would not have been intended, when assuring to the provinces exclusive legisla- tive authority on the subject of i^roperty and civil riahts, to exclude the Parliament from the exercise of this general power whenever any such incidental interference would result from it. Their lordships cannot concur in the view that the act " which in effect authorizes the inhabitants of each town or parish to regulate the sale of liquor, and to direct for whom, for what purposes and under what conditions spirituous lic^uors may be sold therein, deals with matters of a merely loral nature.'" On the contrary, the declared object of Parliament in passing the act is that there should be uniform legislation iu all the provinces respecting the traffic in intoxicating liquors, with a view to promote temperance in the dominion. The act as soon as it was passed became a law for the whole dominion, and the enactments of the first part relating to the machinery for bringing the second part into force, took effect and might be put into motion at once and everywhere within it. The conditional application of certain parts of the act does not 1 Allen. C. J., 3 Pug. and Bur., 13'J. 96 PARLIAMKNrARY INSTITVTIOXS JX CAXADA. convort the act itself into legislation affecting a purely local matter. The legislation in question is clearly meant to apply a remedy to an evil which is assumed to exist throughout the dominion, and the local option, as it is called, no more localizes the subject and scope of the act than a provision in an act for the prevention of contagious diseases in cattle that a public officer should proclaim in what districts it should come into effect, would make the statute itself a mere local law for each of these districts. In statutes of this kind the legislation is general, and the provision for the special application of it to particular places does not alter its character.' The immediate effect of this important judgment on the Temperance Act was the passage in the session of 1883 of " an act respecting the sale of intoxicating lic[uors and the issue of licenses therefor." The preamble of the act sets forth as the grounds for legislation that " it is desirable to regulate the traffic in the sale of intoxicating liquors ; that there should be a uniform law regulating the same throughout the dominion ; that provision should be made for the better preservation of peace and order." The act provides for the issue of licenses to hotels, saloons, shops, vessels, and wholesale dealers, and exacts only such fees as are necessary to the execution of the act." The most important questions which have come before the privy council and the supreme court of Canada have arisen upon the provisions of the B. N. A. Act, relating to the distribution of legislative powers between the Parlia- ' Judgment of the lords of the judicial committee of the privy council on the appeal of Charles Russell v. The Queen, on the information of Woodward, from the supreme court of New Brunswick, delivered 23rd June, 1882. 7 App. Cas. 829. - 46 Vict, c. 30 ; (see reference to subject in his Excellency's speech, Jour., p. 14.) But strong objections were taken in the House of Commons to the act on the ground (as set forth in a resolution) that " the Parlia- ment of Canada should not assume jurisdiction, as proposed by the said bill, until the question of jurisdiction has been settled by the court of last resort." Can. Com. J., :May 22. See Can. Hans., May 16, 21 and 22. RULES OF CONSTRUCTION. 97 ment of Canada aud the legislatures of the provinces, and in the words of the privy council, " owing to the very general language in which some of these powers are described, the question is one of considerable difficulty." A learned judge of the supreme court observes that '" in construing the act, no hard aud fast canon or rule of construction can be laid down and adopted, by which all acts passed, as well by the Parliament of Canada as by the local legislatures, upon all and every question that may arise, can be effectually tested as to their being or not being intra vires of the legislature passing them." The nearest approach to a rule of general application that has been attempted in the courts of Canada, with a view to recon- cile the apparently conflicting legislative powers under the Act, is with respect to property and civil rights, over which exclusive legislative authority is given to the local legislatures : that, as there are many matters involving property and civil rights expressly reserved to the dominion Parliament, the power of the local legislatures must, to a certain extent, be subject to the general and special legis- lative powers of the dominion. But while the legislative rights of the local legislatures are, in this sense, subordinate to the rights of the dominion Parliament, these latter rights must be exercised, so far as may be, consistently with the rights of the local legislatures, and therefore the dominion Parliament would only have the right to inter- fere with property and civil rights in so far as such inter- ference may be necessary for the purpose of legislating generally and effectually in relation to matters conHded to the Parliament of Canada. On this same point the privy council appears to take a similar view : It is there- fore to be presumed, indeed, it is a necessary implication, that the imperial statute, in assigning to the dominion ' Ritchie, C. J., in Tlio Quoen v. Rubertson, Can. Sup. Court W., vol. vi. pp. 110-11. Also Valin v. Langloie, vol. iii. p. 15 ; Tho Citi/,ei)> lusuranco Co. V. Parsons, vol. iv., p. 242. f >8 / '. I /; /. FA MKNTA U Y INSTITUTIONS IN f'A NA JJA . J'iirliiuucul I lie suhjocis ol" bankruptcy and insolvency, intended to conler o]i it legislative power to interfere with property, civil rights, and procedure, within the province, so far as a genc^-al law relating to those subjocts might allect them.' The judicial committee of the privy council have endea- voured to lay down certain principles which should guide those who are called upon to interpret the Union Act. The first step to be taken, with a view to test the validity of an act of a provincial legislature is to consider whether the subject-matter falls within any of the classes of subjects enumerated in section ninety-two, which states the legis- lative powers of the provincial legislatures. If it does not come within any of such classes, the provincial act is of no validity. If it does, these further questions may arise, viz., whether the subject of the act does not also fall within one of the enumerated classes of.subjects in section ninety- one, which states the legislative powers of the dominion Parliament, and whether the power of the provincial legis- lature is, or is not, thereby overborne." The same eminent authority has in another judgment expressed the following opinion, with a view of arriving, as far as possible, at a satisfactory interpretation of sections ninety-one and ninety-two of the act : " That it must have been foreseen that some of the classes of subjects assigned to the provincial legislatures unavoid- ably ran into, and were embraced by, some of the enumer- ^ Sir M. E. Smith, in Gushing v. Dupuy, 5 App. Cas., 415. In Steadman r. Robertson (2 Pug. and Bur., 580) one of the judges of the supreme court of New Brunswick expressed tlie opinion : " The B. N. A. Act is distribu- tive merely in respect to powers of legislation, exercisable by the dominion Parliament and by the local legislatures respectively, and the dominion Parliament maj' not intrench ujjon proix^rty and civil rights which are under the guardianship and subject to the power of the local legislatures, except to tlie extent that may be required to enable Parliament to 'work out' the legislation upon the particular subjects specially delegated to it." ^Dobie V. The Temporalities Board of the Presbyterian Church in Canada, 7 App. Cas., 136 ; Cartwright, 367. RULES OF CONSTRUCTION. 99 ated classes of subjects in section ninety-one ; hence an endeavour appears to have been made to provide for cases of apparent conllict ; and it would seem that with this object it was declared in the second branch of the ninety- first section, ' for greater certainty, but not so as to restrict the generality of the foregoing terms of this section,' that (notwithstanding anything in the act) the exclusive authority of the Parliament of Canada should extend to all matters coming within the classes of subjects enumerated in that section. Notwithstanding this endea- vour to give pre-eminence to the dominion Parliament in cases of a conflict of powers, it is obvious that in some cases where this apparent conflict exists, the legislature could not have intended that the powers exclusively assigned to the provincial legislature should be absorbed in those given to the dominion Parliament. Take as one instance the subject ' marriage and divorce,' contained in the enumeration of subjects in section ninety-one. It is evident that solemnization of marriage would come with- in this general description ; yet ' solemnization of marriage in the province ' is enumerated among the classes of subjects in section ninety-two, and no one can doubt, notwithstanding the general language of section ninety- one, that this subject is still within the exclusive author- ity of the legislatures of the provinces. So ' the raising of money by any mode or system of taxation ' is enumer- ated among the classes of subjects in section ninety-one ; but, though the description is sufficiently large and general to include ' direct taxation within the province in order to the raising of a revenue for provincial purposes,' assigned to the provincial legislatures by section ninety- two, it obviously could not have been intended that, in this instance also, the general power should over-ride the particular one. With regard to certain classes of subjects, therefore, generally described in section ninety-one, legis- lative power may reside as to some matters, falling within the general description of these subjects, in the logislalures 100 rAniJAMESTARY INSTITmOXS IN CANADA. of the provincos. In these cases, it is the duty of the conrts, however dini(2-ult it may be, to ascertain in what degree, and to what extent, authority to deal with matters falling within these classes of subjects exists in each legis- laiure, and to define, in the particular case before them, the limits of their res]3ective powers. It could not have been the intention that a conilict should exist, and, in order to prevent such a result, the language of the two sections must be read together, and that of one interpreted and, where necessary, modiiied by that of the other. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain, and give effect to all of them. In perform- ing this difficult duty, it will be a wise course for those on whom it is thrown to decide each case which arises as best they can, without entering more largely upon an interx)retation of the statute than is necessary for the deci- sion of the particular question in hand."^ XII. Position of the Judiciary. — Before closing this review of the parliamentary system of Canada, it is necessary to refer briefly to the position of the judiciary, which occupies a peculiarly important position in a country possessing a written constitution which must necessarily require to be interpreted from time to time by accepted authorities. - The independence of the judiciary has been for very many years recognized in Canada as one of the funda- ^ The Citizens and Queen Insurance Cos. v. Parsons. Rep. 45 L. T. N.. S., 721 ; Cartwright, 272-3. See also argument of Mr. Girouard, Q.C., Quebec tax cases, Superior Court, 1883. - The supreme court of the United States is considered in the Federalist, and the history of the American constitution proves the truth of the words, " a buhvark of a limited constitution against legislative encroach- ments." The meaning of the word " limited " is explained by Alex. Hamilton : " By a limited constitution I understand one which contains oertain specified exceptions to legislative authority, such, for instance, as that it shall pass no bill of attainder, no ex post facto law, and the like. THE JUDICIARY. 101 mental principles necessary to the conservation of public liberty. The judges are not dependent on the mere will of the executive in any essential respect, nor on the caprice of the people of a province for their nomination and reten- tion in office, as in many of the states of the American re- public. Their tenure is as assured in Canada as in Ens"- land, and their salaries are not voted annually, but are charged permanently on the civil list. In case it is neces- sary to provide a salary, or an increase of salary, for a judge, the proper course is for the government to proceed by bill.^ The judges of the superior courts hold office during good behaviour, and can only be removed by the governor- general on address of the Senate and House of Commons. - In impeaching a judge for misconduct in office, the House of Commons discharges one of the most delicate functions •entrusted to it by law. In such a matter it cannot proceed with too great caution and deliberation. Wheu- ■ever charges of a serious character have been brought against a judge, and responsible persons have declared themselves prepared to support such charges, it has been the practice to appoint a select committee, to whom all the papers can be referred for a thorough investigation. Since 1867 only two committees of this character have Limitations of this kind can bo preserved in practice in no other way than througli the medium of the courts of justice, whose duty it must l)e to declare all acts contrarj' to the manifest tenor of the constitution void ; without this all the reservations of particular rights or privileges would amount to nothing." — Federalist, Ixxviii. ' See 31 Vict., c. 33 ; 36 Vict., c. 31. B.N.A. Act, 1867, s. 100. ^ B. N. A. Act, 1867, s. 99. This section does not apply to county court judges, whose removal for sufficient cause is provided for by 45 Vict., c. 12. It is, however, always competent for the house to address tlie gover- nor-general for tbe removal of such judicial officers, and the procedure in Parliament sliould be as in the case of the sujierior court judges. See case of W. McDermott, asst. barrister of Kerry. 150 E. Hans. (3), 1587, 1588; 90 Lords J., 221, 237, 239, 244, 251, 261. Also Mr. Kenrick's ca.se, 13 Pari. Deb., N. S., 113S, 1425, 1433; 14 Ih., 500, 502, 511, 670-5,li54 and cnn.stMiiHMitly another niem]>er was added to the Senate. •■•Can. Com. J. (1871) 105. Dom. Stat, for 1S72, Order in Council Ixxxviii. 106 THE SENATE AND HOUSE OF COMMONS. its admission has not increased lh(! number of" sonators in the aggregate'. The senators, who are nominated by the Crown, mnst each be of the full age of 30 years, natural-born or naturalized subjects, resident in the province for which they are ai:)pointed, and must have real and personal property worth $4,000 over and above all debts and liabilities. In the case of Quebec a senator must have his real property qualification in the electoral divi- sion for which he is appointed, or be resident therein.^ Every senator must take the oath of allegiance and make a declaration of his property qualification, before taking his seat.'* In 1880 it was deemed expedient to adopt a resolution which will have the effect of show- ing that the members of the Senate continue to have the property c[ualification. This resolution is ta the effect that "within the first twenty days of the first session of each Parliament every member shall make and file with the clerk a renewed declaration of his property qualification, in the form prescribed in the fifth schedule annexed to the B. N. A. Act, 1867." The clerk shall, "immediately after the expiration of each period of twenty days, lay upon the table of the house a list of the members who have complied with the rule." In case members arrive too late to make the declaration within the dated period, then it is usual for a minister to ^ British N. A. Act, 1867, s. 147. This section provides that after the admission of P. E. Island, " the representation of Nova Scotia and New Brunswick in the Senate shall, as vacancies occur, be reduced from twelve to ten members respectively, and the representation of each of those provinces shall not be increased at any time beyond ten, except under the provisions of this act for the appointment of three or six addi- tional senators under the direction of tlio queen." 2 B. N. A, Act, 1867, s. 23. See app. to this work. 3 Ih., s. 128. * Sen. Hans. (1880) 273 ; Jour. p. 152. The resolution provided alsa that the list should be laid for the first time on the table in the session of 1880-81, which was accordingly done. Jour. (1880-81) 56-58. Ihid. (1883) 54-55, 68. THE SENATE. lOT move formally that the clerk be authorized to receive their declarations in due form.^ Senators who have been unable from sufficient cause to attend during the session and make the necessary declaration before the clerk, have been permitted to sign it before a justice of the peace — such declaration being deemed sufficient on for- mal motion.- In 1883, the Senate was satisfied with a declaration signed and transmitted to the clerk, by a senator suffering from paralysis.' The queen may, on the recommendation of the gov- ernor-general, direct that three or six members be added to the Senate, representing equally the three divisions of Canada. In case of any such addition being made, the governor-general shall not summon any new member "except on a further like direction by the queen on the like recommendation until each of the three divisions of Canada are represented by 24 members and no more."* The number of senators is fixed by the 28th section of the British North America Act, 1867, at 78, but on refer- ence to the 147th section, it will be seen that it is pro- vided that " in case of the admission of Newfoundland the normal number of senators shall be 76, and their 1 Jour. (1880-81) 58, 00 ; Hans. p. 56. Jour. (1883) 105, 110. A declara- tion has also been received in a subsequent session. Jour. (1882) 25, 40. ■■' Jour. (1883) 73, 86. ' JWrf. (1883) 55; Hans. p. 54. The clerk made a sjiecial report on the subject. ♦ B. N. A. Act, s. 26-27. Se.e Sen. Deb. (1877) 87-04 ; Com. Deb. (1877) 371, for discussion on a case in -n-hich the queen refused to appoint addi- tional senators under section 26. Also Todd's Pari. (Jov. in the Colo- nies, p. 164. The Earl of Kimberley, in his despatch on thesubject, stated that her INIajesty could not be advised to take the responsibility of inter- fering with the constitution of the Senate, except upon an occasion when it had been made apparent that a difference had arisen between the two houses of so serious and permanent a character that the government could not be carried on without her intervention, and when it could bo shown that the limited creation of senators allowed by the act would apply an adequate remedy." The Senate, on the receipt of this despatch, passed resolutions ajjproving of the course pursued by her Maje.sty's government. Jour. p. 130-4. 108 THE SEX ATE AM) JKjCSJJ OF (JOMMOXS. inaximiuri nunibcr slitiU Ix; 82." Senators hold their seats lor lil'e, subject to the provisions of this act, but they may, iit any time, resign by writini^ under their hand, addressed to the governor-general'. The place of senator shall be- come vacant, if he is absent for two consecutive sessions, if he becomes a bankrupt, or insolvent, or applies for the benefit of any law relating to insolvent debtors or be- comes a public defaulter ; if he becomes a citizen or sub- ject of any foreign power ; if he is attainted of treason or convicted of any infamous crime ; if he ceases to be qualified in respect of property or residence ; provided that he shall not be considered disqualified in respect to residence on account of his residing at the seat of govern- ment, while holding an office in the administration. When a vacancy haj^pens in the Senate, by resignation, death or otherwise, the governor-general shall, by summons to a fit and qualified person, fill the vacancy. If any question should at any time arise respecting the qualification of a senator or a vacancy in the Senate, the same must be heard and determined by that house.^ The iOth rule of the Senate provides : " If for two consecutive sessions of Parliament any senator had failed to give his attendance in the Senate, it shall be the duty of the clerk to report the same to the Senate, and the ques- tion of the vacancy arising therefrom shall, with all convenient speed, be heard and determined by the Senate." In accordance with the foregoing rule, the clerk reported in 1876, for the information of the house, that Sir Edward Kenny, one of the senators for Nova Scotia, had been absent from his seat for two consecutive sessions. The committee of privileges, to whom the matter was immediately referred, reported that Sir Edward Kenny had vacated his seat, and that the house should so declare 1 Sec. 29 and 30. ^ Sec. 31, 32, 33. A Peer who has been adjiKluel a liankrnpt cannot jsit and vote in the House of Lords, 3-1 a'nd 35 Vict., c. 50, Imp. Stat. ; 104 Lords' J., 138, 206, 321,;.322, 342, 429. THE IXTBOD VCTION OF SENA TORS. 1 09^ and determine in pnrsnance of the thirty-third section of the British North America Act, 1867. The report of the committee having been formally adopted, the Senate agreed to an address to the governor-general setting forth the facts in the case.^ n. The Introduction of Senators — The practice of introduc- ing new senators is invariable in the upper chamber. The speaker will state to the house whenever the clerk has received a certificate from the clerk of the Crown in Chancery that a new member has been summoned to the Senate. He will then inform the house : " Honourable gentlemen, a new member is without, ready to be intro- duced." The new member is then introduced between two senators, and presents at the table her Majesty's writ of summons, which is read by the clerk, and put upon the journals. He will then subscribe the oath be- fore the clerk (one of the commissioners appointed for that purpose)" by repeating the words after that officer. That having been done, the new member signs the roll, and then makes obeisance to the speaker, who, shakino- hands with him, indicates the seat he is to occupy, and to which he is conducted by the members who introduced him. The speaker will finally acquaint the house that the new senator had also formally subscribed the declaration of cjualification required by the British North America Act, 1867.' ^ Sen. J. [1876] 188, 189, 205, 206 ; Deb-, 299, 314, 324. The Senate, at the same time, oonvej'ed to Sir Ed^^ard Kenny an expression of regret at the severance of the ties which liad hitiierto connected them. See a simi- tar proceeding in the old legislative council of Canada, Jour. [1857], 66-7. '' By s. 128 of B. N. A. Act, 1867. » Sen. J., [1867-8] 165, 177, 178; lb. [1877] 14, 26, &c., Ih. [1883] 20-2.1, &c. The above form of procedure is as given in the Journals, but jiracti- cally the si)e.aker is previously informed by the clerk that the new sena- tor has subscribed the declaration of qualification. No comnninicalion follows the taking l)y the senator of his scat. The declaration is made in the clerk's oflice. but the oath is taken in the Senate. 110 77//'; SENATE AM) HOUSE OF COMMONS. III. The House of Commons.— lu 186*7 tho house consisted of 181 members in :ili, who were distributed as follows '} Ontario 82 mcmlx'rs. Quebec; 59.027; Nova Scotia, 440,572; New Brunswick, 321,223; Manitoba, («),!»54 ; r.ritieh Columbia (including Indians), 49,459 , Prince Edward Island. lOS.S'.H ; N. W. T., 50,446. 112 TIIK SKXATK AM) IIOl'SK OF COMMONS. " Until the Piirliameiit oC (/iiiiiulu (>tlu;r\viHu pi'ovido.s, nil lawH in force in the weverul pi-ovinces :it the time of the union I'elative to the following mattei'H, oi- :iny of them, namely, the qualifications and dis([iialilications of persons to be elected, oi- to sit as membei'« oi"the legislative assemblies in the sevei-al provinces, the voters at elections of such members, the oaths to be taken by voters, the returning officers, their powers and duties, the proceedings at elections, the periods during which elections may be continued, the trial of controverted elections, and proceedings incident there- to, the vacating of the seats of members, and the execution of new writs in case of seats vacated otherwise than bj^ dissolution — shall i-espectivel}'^ '^pplj to elections of members to serve in the House of Commons for the same several provinces." In 18*71 and subsequent years, Parliament passed several acts^ of a temporary character, and it was not until the session of 18Y4 that more complete provision was made for the election of members of the House of Commons". The law now dispenses with public nominations^ and pro- vides for simultaneous polling at a general election — a pro- vision which had existed for years in the province of Nova Scotia. The act of 18Y4 refers very briefly to the qualifi- cations or disqualifications of persons to be elected^ No qualification in real estate is now required of any candi- date for a seat in the House of Commons. '' but he must be ' 3-4 Vict. c. 20; 35 Vict. cc. 14, 16, 17; (the two last chaptei-s provided merely for election purposes in counties of Victoria and Inverness, N.S.), 36 Vict. c. 27. 2 37 Vict. c. 9. ^ The open nomination of candidates was abolished in England by 35 and 36 Vict. (1872,) c. 33. * In the absence of statutory enactments, the common political law governs in England and her dependencies. For instance, insane persons are incapable of executing the trust of members ; but the English Commons have always inquired into the nature of the affliction, and granted or refused a new writ according as the incapacity has been shown to be permanent or temporary . Case of Mr. Alcock, in 1811 ; 2 Hatsell 35w. Also that of Mr. Crooks, Ontario Legislature, Feb. 12 and 14, 1884- See Gushing, p, 26. '•' The property qualification had been previously abolished in England THE ELECTION OF MEMBERS. 113 either a natnral-l)orii subject of the qneeu, or a snhject of the queen naturalized by an act of the Parliament of G-reat Britain, or of the Parliament of the United Kingdom of Grreat Britain and Ireland, or of the Legislature of one of the provinces of Canada, or of the Parliament of the dom- inion.' All persons qualiiied to vote for members of the legislative assemblies of the several provinces compris- ing the dominion can vote for members of the House of Commons for the several electoral districts comprised within such provinces respectively ; and the lists of voters used in the election of representatives to the legislative assemblies, are to be used at the election of members of the House of Commons.^ Provision is also made in the same act for voting by ballot. In the session of 18Y8 the act was amended with the view of ensuring greater secrecy in the ballot system, the use of envelopes being discarded.^ The Parliament of Canada has not yet [1883] established a uniform franchise for the dominion,* and it is therefore necessary to refer briefly to the several statutes of the provinces defining the cj[ualifications of electors therein. The following persons have at present the right to vote at dominion and provincial elections : — In Ontario — Owners or occupants of real prox>erty, in cities, of not less than |400 value : in towns, $300 ; in incorporated villages, $200 ; in townships, $200. AlsO' in 1858 by 21 and 22 Vict. c. 26. For debate, see 150 E. Hans. (3) 222, 576, 1421, 1829, 1919, 2086. ' Sec. 20. By sub. s. 25 of s. 91, of British N. A. Act, 1867, naturalization and aliens are now among matters falling under the exclusive legislative authority of the Parliament of Canada. 2 Sec. 40. Ml Vict, c. 6, Dom. Stat. Can. Hans. [1878] 1844, 207.S,' 2116, 2160. The secret ballot was established in 1872 in England (except in case of university elections) by 35 and 36 Vict. c. 33. The dominion act of 1878 also provides for a recount of votes by a judge (sec. 14.) * On two occasions since 1867, drafts of proposed acts have been sulv raitted to Parliament — first, in 1870 and secondly in 1882, — but noitlier measure was pressed. Hans. [1883] 593-90. 8 114 THE SENATE AND IIOL'h>E OF COMMONS. persons with an income of not loss than $400 annually • farmers' sons, resident on jiarcnts' farms, and duly rated on assessment roll. In Algoma, and such districts as have no assessment roll, those persons who are bond fide owners of real estate, valued at $200 or upwards, or who are, at the time of election, resident householders, — in each case, for six months next preceding the election.^ In Quebec. — Owners or occupants of real estate estimated at a value of at least $300, in city municipalities ; and $200 in real value, or $20 in annual A'alue, in any other muni- cipality. Tenants paying annual rental for real estate of at least $30 in a city, and $20 in any other municipality.^ In Nova Scotia. — Persons assessed to the value of $150, on real estate ; or on i)ersonal estate, or on personal and real estate together, to the value of $300.' In New Brunsioick. — Persons assessed for the year on real estate to the value of $100 ; or on personal, or on personal and real property together, to the value of $400, or with an annual income of $400.' In Manitoba. — Owners of real estate, valued at $100 at least, or tenants of real property, to the value of $200, under an annual rent of $20, who must have been in the electoral division for at least three months.^ In British Columbia. — Residents in the province for twelve months, and in the electoral district tor two months, previous to voting.'" 1 Ont., Eev. Stat. c. 10. ss. 4-7. ■•^ Quebec Stat. 38 Vict. [1875] c. 7, ss. 7-11. ^ N. S. Rev. Stat. 4th ser., App., Election Law of 1863, c. 28, as amended. See c. 3 acts of 1874 ; c. 4, acts of 1883. Previous to 1863 (See Rev. Stat, of 1859, c. 5, s. 2) manhood suffrage existed in Nova Scotia, but the right was quahfied by a pro\ision requiring one year's residence in the electoral district, and five years in the province in the case of persons, British sub- jects, not born therein. This provision was repealed in 1863 by c. 28. * K B. Cons. Stat, of 1877, c. 4., s. 1. * Man. Cons. Stat, of 1880, c. 3, ss. 61-65. «B. C. Cons. Stat, of 1877, c. 66, am. by c. 7, Acts of 1878, and by c. 34, Acts of 1883. THE ELECTION OF MEMBERS. 115 In Prince Echmird hland. — Residents in the polling- divi- sion for twelve months before the teste of the writ, who have performed or paid for statute labour ; also, persons resident in Charlottetown and Summerside who have paid provincial or civic poll-tax for the year ; also, owners or occupants of real estate of the clear annual value of six dollars and forty cents, who have paid the taxes on such property for the year preceding the election. Residence is not necessary, and a man may vote on his property qualification, if he possesses it, in every district.^ The various acts of the provinces setting forth voters' qualifications provide for the due registration of all electors, who must be British subjects, by birth or naturalization, of the full age of twenty-one years, and free from any leaal inca- pacity. The judges of the various courts, registrars, sherifl^s and deputy-sherill's, stij)endiary and i:)olice magistrates, recorders, clerks of the crown, clerks of the county courts, county attorneys, clerks of the peace, agents for crown lands, postmasters in cities and towns, officers of the cus- toms and excise, have no votes at parliamentary elections in Ontario, Quebec and other provinces. By the statutes of all the provinces the right to vote is expressly limited to " males," and the Ontario law has a special provision that no woman shall vote at any parliamentary election.^ In the same province all Indians, or persons with part Indian blood, who have been duly enfranchised, and who do not reside among Indians though they participate in annuities or rents of a tribe, have a right to vote.^ But in Manitoba, Indians or persons of Indian ])lood receiving an annuity are denied the privilege, and the same is the ^ The election law of 1878 (41 Vict., c. 14), was repealed In- an act in 1879 (42 Vict., c. 2) revivinj,' the law of ISGl, 24 Vict, c. 34. The act of 1879 also repealed the Iteiristration and Ballot Act of 1877 (40 Vict, c.20). See also 45 Vict., c. 1, which provides for provincial or civic poll tax qualification in certain districts as above. ^ Ont. Rev. Stat., c. 10, s. 3. =' lb. s. 7. 116 THE SENATE AND HOUSE OF COMMONS. caso in British Colum))i;i with respect to Chinamen and Indians. Previous to 1882, employes of the Intercolonial Railway had been disqualified from voting by an act of the Nova Scotia legislature, but in that year Parliament made provision in the llepresentation Act removing the disqualification in the case of such persons as respects elections for the House of Commons/ The Representation Act of 1882 also contains a provision that " every writ for the election of a member of the House of Commons shall be dated and be returnable on such days as the governor-general shall determine, and shall be addressed to such person as the governor- general shall appoint ; and such person shall be the returning officer at the election to which such writ relates."" The act of 18Y4, so far repealed, provided that writs should be addressed to the sheriff or to the registrar of deeds in the electoral district, but in case there was no such officer in the division, then the governor- general might appoint such other person as he might think proper.^ As communication by water between the Island of Anticosti, or the Magdalen Islands, and the mainland, may be interrupted during an election by the severity of the season, it is provided by the act of 1882 that the governor in council may direct that all necessary infor- mation relating to the election may be transmitted by telegraph by the returning officer to his deputies, and by them to him, so that he may be informed of the number of votes, and of all other matters relating to the election, and be enabled to return the candidate having the majority,^ or make such other return as the case may require. The islands in question form part of the electoral divisions of 1 N. S. Stat. 1871, c. 3 ; Dom. Stat., 45 Vict., c. 3, s. 5 ; Sen. Deb. (1882),. 738 ; Com. Deb., 15G3. -45 Vict, c. 3, s. 6. =^37 Vict, c. 9, s. 1. THE TRIAL OF CONTROVERTED ELECTIONS. 117 'Chicoiitimi and Saguenay, and G-aspe, and it is difficult to communicate with them at certain seasons.' V. The Trial of Controverted Elections. — The Canadian sta- tutes regnkiting the trial of controverted elections, and providing for the prevention of corrupt practices at par- liamentary elections have closely followed the English statutes on the same subject. For some years, in Upper and Lower Canada, the house itself was the tribunal for the trial and determination of election petitions — commis- .sioners or committees being* appointed, when necessary, to examine witnesses." Eventually the principle of the G-renville Act of 1770'^ was adopted in Upper Canada, and the trial of controverted elections entrusted to sworn com- mittees of nine members, and two nominees, one appointed by the sitting member and the other b)' the petitioner. After the union of 1840, election petitions were tried by committees or by the whole house, according to the old laws of each x^rovince. It was soon found expedient to adopt the principles of Sir Robert Peel's act of 1839.-^ The legis- lature in 1851 passed an act transferring the whole of its authority to a newly established tribunal called "the general committee of elections," which was composed of six members appointed by the speaker by warrant under his hand, but subject to the approbation and sanction of the house. This committee was sworn, and then proceeded to select certain members to serve as chairmen of election committees, and also to divide the remaining members on the list submitted to it into three panels, in such M5 Vict., c. 3, s. 9. See remarks of Dr. Fortin, member for Gaspe, as to necessity for such a provision. Hans. (1882), 14(31. M5 Geo. III., c. 3, Upp. Can. Stat. ; 48 Geo. III., c. 21, Lower Can. Stat.; 58 Geo. III., c. 5., of Lower Can., provided for the appointment of commissioners or committees for the examination of witnesses ; 8 Geo. IV., c- 5, for commissioners for the same purpose in L'pper Canada. no Geo. Ill , c. 10, Imp. Stat. ; :\Iay, 715. * 4 Geo. IV., c. 4, Upper C. Stat. = Imp. Stat. 2 and 3 Vict, c. 38; aui. bv 11 and 12 Vict., c. DS; 190 E. Hans. (3) G94. 118 THE SENATE AM) IIOI'SE OF COMMONS. mannor as should seem most convenient. The eommittee of elections had the power of selecting a committee of four members from the panel in service, and a fifth member was chosen by the chairmen's panel. The members of the committee thus selected to try the merits of an election petition took their oaths solemnly and publicly at the table of the house, to execute justice and maintain the truth. The witnesses were examined on oath, the petitioner and respondent both appeared before the committee by their counsel, the decisions and pre- cedents of the superior courts were quoted and followed, and the decision of the committee was final and conclusive.^ This system continued in operation for several years after 186Y," consuming necessarily a great deal of the time of the speaker and members, until it was thought expedient to follow again the example of the British Parliament.^ In Canada, for many years, there was a concurrence of opinion, in and out of Parliament, that it was necessary to transfer the jurisdiction over controverted elections from the house itself to some other tribunal which could deal with them irrespective of all political considerations whatever. Accordingly in 1873 Sir John Macdonald, then premier and minister of justice, introduced a bill "to make better provision respecting U4 and 15 Vict., c. 1 ; 19 and 20 Vict., c. 140; Consolidated Stat, of Canada, c. 7. 2 Can. Com, J. [1867-8] 26, 37, 42, 108, 158, etc. ^ In 1868 Mr. Disraeli, then chancellor of the exchequer, brought in a bill transferring the trial of election petitions to judges (31 and 32 Vict., c. 125). In giving his reasons for changing the existing system Mr. Disraeli said, "charges were being constantly made against the ineffi- ciency and unsatisfactory character of the tribunal. The decisions of the committees have been uncertain and therefore unsatisfactory, and have offered no obstacle whatever to the growing jiractice of corrupt compromise by which, in the process of withdrawing petitions, a veil is often tlirown over more flagrant transactions than any which are submitted to scrutiny and investigation." The legislature thus practically recurred to the method adopted more than 450 years previously in the election statute of 11 Henry IV. Taswell-Langmead, Const, Hist. 333, 340. THE TRIAL OF COXTROVERTED ELECTIONS. 119 election petitions, and matters relative to controvei-ted elections of members of the House of Commons.'" This bill which passed into law provided for the trial of election petitions by judges in the several provinces of Canada. Barristers of ten years' standing- were to be appointed judges ad hoc, in case the lieutenant-governor in council in any x^rovince should neglect or refuse to require the judges to perform the duties assigned to them under the act. This act was repealed (except as respects elections previously held) in the session of 1874 by another, introduced by Mr. Fournier, subsequently minister of justice,' and making more ample provision for the trial of controverted elections. As it has been stated elsewhere, some of the judges in the provinces of New Brunswick and Quebec cjuestioned the constitutional power of the dominion Parliament to constitute election courts in the way proposed, and the matter was referred to the supreme court of Canada and eventually to the judicial committee of the privy council, both of which tribunals decided that the act was constitutional.^ The statute * provides that the judges of the following courts shall try election petitions : In the province of Ontario, of the courts of error and appeal, queen's bench, common pleas and chancery, and the chancellor and vice- chancellors of the said court. In Quebec, of the supe- rior court. In Nova Scotia, New Brunswick, British Columbia, and Prince Edward Island, of the ;>upreme court. In Manitoba, of the court of queen's bench. By the Ontario Judicature Act of 1881, the several courts of that province, mentioned above, were united and consti- tuted one " supreme court of judicature for Ontario," consisting of two permanent divisions, called respectiA^ely, ' 36 Vict., 0. 28. '^ Now one of tho judges of the supremo court of Caniida. ^See sapra p. So. ♦37 VLjL, 2. I ). 120 THE SENATE AM) JIOVSE OF COMMONS. 1st, " the high court of justi(;e for Ontario," and, 2nd, " the court of appeal for Ontario." The courts of queen's bench, chancery, and common pleas became divisions of the high court. After the elections of 1882, petitions were filed in the common pleas and queen's bench divisions of the high court, and Mr. Justice Cameron held that the court had no jurisdiction ; that the courts of appeal, queen's bench, common pleas and chancery, named in the Con- troverted Elections Act of 1874, are still existing courts for the trial of such petitions ; that these courts are not the same as the divisions of the high court which are branches of that court, and not distinct courts. The supreme court of Canada, on appeal, held that the act in question makes the high court of justice and its several •divisions a continuation of the existing courts, and that the high court of justice (queen's bench and other divisions) lias, under a new name, the same jurisdiction in dominion controverted elections as had the courts named in the said act of 1874.^ Under the Controverted Elections Act of 1874, the judge must report and certify the result to the speaker, and ma}'' also make a special report as to any matters arising in the course of the trial, an account of which ought, in his judgment, to be submitted to the House of Commons. Provision is made for appeal from the decision of the judge in any province, and the manner of certifying the determination and decision to the speaker - upon the several questions and matters of fact as well as of law. The speaker must issue his warrant for a new writ at the earliest practicable moment after receiving the certificate and report of a judge or judges, and adopt the proceedings iCan. Law J. [1882], 348, 400; lb. [1883] 240. ^ For the purposes of this act (s. 5), when the speaker is absent or xinable to act, the clerk of the house, or any other officer for the time being performing his duties, is entitled to act, and the judge sUould make report to him accordingly. Can. Com. J., 1879, Feb. 14, East Hastings and Kamouraska. Can. Coai. J-, 1883, Feb. 8, Kings, ]S\B., JoUette, etc. THE TRIAL OF COXTROVERTED ELECTIONS. 121 necessary for confirming or altering the return or for the issue of a new writ for a new election.' When the judge makes a special report, the house may make such order in respect to the same as it may deem expedient. In the session of 1875 the foregoing act was amended," so as to provide that whenever it shall appear to the court or judge that the respondent's presence at the trial is neces- sary, the trial of an election petition shall not be com- menced during any session of Parliament. The judge must also make his report, except in case of an appeal, within four days after the expiration of eight days from the day on which he shall have given his decision. In the session of 1875 an act was passed to establish a supreme court and a court of exchequer for Canada.' Provision is made therein for an appeal to this court in case anv party to an election petition may hs dissatisfied with the ■decision of the judge who has tried the same on any •question of law or fact. The registrar of the court shall certify to the speaker the judgment and decision of the court upon the several questions submitted to it.^ In the Election Act of 1874, provision is made for the prevention of corrupt practices at elections. In the session of 1876, two acts were passed on the same subject : 39 Tict., c. 9, " to make more eff'ectual provision for the ^ Sec. 36. The first case of speaker ordering clerk of the Crown to alter a return was that of Mr. Plumb, of Niagara, Can. Com. J. [1879] 138-40. In England, in similar cases, the clerk of the Crown in Chancery is ordered to attend, to amend the return, and when he obej's the order, the return is amended in accordance with the judge's report 136 Eng. Com J., 4, 5, 10 (Borough of Evesham, 1881.) -38 Vict, c. 10. =» 38 Vict, c. 11. Amended by 39 Vict., c. 26, and 42 Vict., c. 39. * Mr. Langevin's case, J 877; Mr. Laflamme's case, 187S. Also, Jour. <1880-1), 2, 3, 220, 222. In conformity with 37 Vict., c. 10, s. 36, and 38 Vict, c. 11, s. 48, the speaker in 1SS3 issued his warrant to the clerk of the Crown directing him to alter tlie return for Queen's County, P. K. J., as the legal consequence of the decision of the supreme court of Canada on an election apjjeal. Jour., pp. 61-3. 122 THE SKSATE A XI) HOUSE OF COMMONS. administration of the law relating to coirnpt practices at oloction.s oi' members of the House of Commons," and 39 Vict., c. 10, " to provide for more effectual inquiry into the existence of corrupt practices at elections of members of the House of Commons." The latter statute provides for more effectual inquiry into coiTupt practices by a commissioner or commissioners, on an address to the governor-general representing that a judge in his report on the trial of a petition states that such further inc[uiry is desirable, or on an address setting forth that a petition has been presented to the house, signed by 25 or more electors of the district, stating that no petition had been presented under the Controverted Elections Act, and asking for incjuiry into corrupt practices which, there is reason to believe, extensively prevailed at the election. Only one case has so far occurred under this statute : the petition of certain electors of ^>outh Grrenville, which was referred to the standing committee on privileges, in 1879, but no report was ever made on the subject.^ This statute was amended in 1879,^ so as to require security to be given to meet the expenses of the inquiry in certain cases. One thousand dollars must be deposited Avith the accountant of the house before the petition under the act can be received. The certificate of the accountant that the money has been deposited must be attached to the petition on its presentation. Since the House of Commons has divested itself of its original jurisdiction for the trial of all matters touching the election return of its members, petitions calling into cjuestion the right of a member to his seat have been ruled out on two occasions — the sense of the house being unmistakably in favour of the principle laid down that it is most inexpedient to re-open an elec- tion case after it had been disposed of in the courts in 1 Can. Com. J., (1879) 70. 2 42 Vict., c. 6. ISSUE OF WPJTS. 123 accordance with law.^ It is admitted, however, that the house is bound to take notice of any legal disabilities affecting its members, and to issue writs in the room of members adjudged to be incapable of sitting." In fact, there is authority to show that the very same question which might have been determined, upon petition, by an election judge, has been adjudged by the house itself? In a recent election case, a court in Ontario unanimously held that "the right to deal with all matters affecting the election and return of its members belongs to the House of Commons, except so far only as the Parliament of Canada has expressly devolved on the courts certain express duties and powers respecting elections. The House of Commons retains all powers that it has not expressly given up."^ In any case, it is always regular to receive a petition setting forth a grievance, and praying for a remedy, pro- viding that it does not question the return of a member within the meaning of the Controverted Elections Act of 1874, which enacts (s. 63) that no election or return shall be questioned except in accordance with the provi- sions of the act. IV. Issue of Writs. — In the session of 18Y7, some remarks were made as to the power of the house to order the issue of writs when seats have become vacant by a decision of a court. It was doubted whether such an order was neces- ^Can. Com. J., (1874) 82 ; lb. (1880-81) 199-200; Can. Hans. flSSO-Sl) 823-830. See Amos's British Cons., p. 445. ^May, 723-4. See O'Donovan Rossa and other cases, ivfra p. 140. =» Sydney Waterlow case, 124 E. Com .!., 12, 43, 82, 88. Sir Erskino May (p. 723) appears to take the ground that after the time has expired for receivinir election jx'titions, the house is not only free, but legally bound, to determine all (luestions affecting the seats of its members. *In Re Centre Wellington election, 44 U. C, Q. B., 132. ^So ruled by sjieaker of English Commons in case of a i)etiti*'n from electors of Peebles and Selkirk complaining that certain voters, at the last general election, had (lualitications of an illusory character. 104 V.. Hans. (3) 1185. 124 THE SENATE AND JIOVHE OF COMMONS. sary under the Canadian llllectioiis Act. Subsequently, Mr. Speaker Anglin took occasion to inform the house that on looking into the question he had found that the English Controverted Elections Act' left the power in the house to order the immediate issue of a writ on being informed of a vacancy through the decision of an election court. The ■Canadian statute,- on the other hand, made it the express duty of the speaker to order the issue of the writ. It is now the practice for the sj^eaker to inform the house immediately when he has given his orders for the issue of a writ for a new election." In all cases, however, not specified by statute, the house retains its control over the issue of writs, and may order the speaker to issue his warrant.^ In England, the usual motion for a new writ is made in all cases by a member when the house is in session.' VIII. Dual Representation. — For more than one session of the first Parliament, members were entitled to sit not only in the House of Commons, but in the legis- lative assemblies of Ontario and Quebec as well. But the legislatures of Nova Scotia and New Brunswick had passed acts previous to entering the confedera- tion, by which no person being a member of the Senate or House of Commons should be capable of sitting or voting in either branch of the legislatures of those provinces.'"' Since 1872, several acts have been passed to prevent dual ^ 31 and 32 Vict., c. 125, s. 13, Imp. Stat. 237 Vict., c. 10, s. 36, Dom. Stat. 3 Can. Hans., Marcli 1st and 5tli, 1877 ; Jour. (1877), 85, 86. * Cases of Louis Riel, expelled, hifra p. 151 ; of O'Donovan Rossa, infra p. 149. See Can. Hans. (1875), 320, for opinions of Sir J. Macdonald and Mr. Fournier. The Controverted Elections Act and Independence of Parlia- ment Act give authority to speaker ; 39 Vict, c. 10, s. 2. provides for cases where no neAV writ for a new election (under the 36th s. of the Contro- verted Elections Act, 1874) shall issue, save by order of the house. * 131 E. Com. J., 50, 55. « 30 Vict., c. 3, Nova S. Stat, of 18G7 ; 30 Vict., c. 20, Xew B. Stat, of 1867. DUAL REPRESENTATION. 1£5 representation. The dominion law, as it wow stands, renders members of the legislative councils and legislative assemblies of the provinces, now included, or which may- hereafter be included, within the dominion, ineligible for sittino: or voting in the House of Commons. A member of the House of Commons who accepts a seat in a provin- cial legislature must vacate his seat in the former body, and any person who violates the act is liable to a penalty of $2,000 for every day he sits and votes illegally.^ By reference to notes below" it will be seen that statutes of the several provincial legislatures now provide that no- senator or member of the House of Commons shall sit im the legislative councils or assemblies of the provinces, A senator may, however, sit in the legislative council of Quebec,'^ and could do so in the Manitoba assembly, until the law was changed in that province before the elections of 1888.' In the session of 18*74 a question arose as to the eligibility of Mr. Perry, one of the members for Prince Edward Island,, on account of an irregularity in his resignation as a mem- ' 35 Vict, c. 15 ; 3G Vict., c. 2, Dom. Stat. ^ Cons. Stat, of Ontario, 1877, c. 12, ss. 5 and (5, provides that no privy councillor or senator of the dominion or member of the house of commons- shall be eligible as a member of the legislative assembly of Ontario. An act of P. E. Island (3iJ Vict., c. 3) renders members of the senate and house of commons ineligible as members of the legislative council or house of assembly of the province. No memlier of the liouse of conmions can sit in British Columbia assembly (B. C. Cons. Stat, 1877, c. 42, ss. 15, 25). No member of the legislature of any province, nor of the house of commons, can sit in the Manitoba assembly (Man. Cons. Stat., c. 5, s. 30. See note 4 below.) ^ Senator Ferrier has represented Victoria division in tlio Quebec legis- lative council since 1807. Pari. Comp., 1883, \i. 56. See suli-s. 2, s. 2, c. 3, 32 Vict., Quebec Stat. But no senator or member of the commons shall be eligible as a member of tlie legislative assembly of Quebec; 37 \ ict., c. 4, Quebec Stat. * Senator Girard not only sat in the ^Manitoba asseml>ly, but was a member of the government of the province for years. Pari. Cf>miianion, 1883, p. 58. The law was amended in 1881 by 44 Vict., c. 29, Man. Stat. 12G THE SENATE AND HOUSE OF COMMONS. bcr of tho legislative assembly of that province. It appears that Mr. Perry, who was speaker of the local house, resigned his seat by a letter addressed to the lieutenant-governor of the Island, and the point at issue was wh(?th(!r there was any legal resignation of his seat in th(3 legislature when he became a candidate for the House of Commons. The matter was referred to the committee on privileges and elections, which reported that he had taken every step in his power to divest himself of his position as a member of the legislative assembly, and that according to the spirit and intent of the dominion act of 1873 (3(3 Vict. c. 2), he was not disqualified to be a candidate at the election, or to sit and vote in the House of Commons ; but under all the circumstances the committee recommended that an act of indemnity be passed to remove all doubt as to his right to sit and vote in Parliament. An act was accord- ingly passed in the same session.^ In the session of 1883, the first after the general elections of 1882, the clerk of the crown in chancery gave in " a double return," (as he called it in his return book) - for the electoral district of Kings, Prince Edward Island. Accord- ingly both members w-ere duly sworn by the clerk, though neither, of course, took his seat or attempted to vote. From the return of the returning ofiicer, it appears that the county of Kings is entitled to send two members to the House of Commons ; that Mr. Mclntyre received " a legal majority of votes," and of his due election there was no ques- tion ; that Mr. James Edwin Robertson received the next highest number of votes ; but it having been represented to the returning ofiicer at the summing up of the votes by 1 Can. Com. J. (1874), 50, 51, 55 ; 37 Vict., c. 11 ; Pari. Deb., p. 16. :\Ir. Perry did not take his seat until the question was settled by the house as above. - Can. Com. J. (1883), 1. The question was raised in debate whether the return made in this case was not rather in the nature of a special return, and whether a double return can now be made if the provisions of the Elections Act of 1874 are properly carried out. See infra p. 141. DUAL REPRESEXTATIOX. 127 certain electors that Mr. Robertson at the time of his nom- ination as a candidate, and at the time of the holding- of the election was a member of the house of assembly of the Island, he was, consequently, in the opinion of the return- ing officer, " disqualified to be elected as a member of the House of Commons.'' Accordingly he certified that " Mr. Augustine Colin MacDonald, a candidate at such election duly qualified, had the next highest number of votes lawfully given at such election," and he " made this return respecting the said J. E. Robertson and A. C. MacDonald for the information of all whom it may concern." AVhen this extraordinary case came before the house in due form, it gave rise to a very earnest debate, in which very contra- dictory opinions were expressed as to the conduct of the returning officer. The whole matter was finally referred to the committee on privileges and elections, though not until an amendment had been moved by Mr. Robertson's friends to the effiict that inasmuch as he had the second highest number of votes at the election he ought to have been returned as one of the members, and that he had a right to take his seat, " saving, however, to all candidates and others their ria-hts of contesting the election in accord- ance with law and justice." Both in the house and before the committee it was contended that, by the dominion Elections Act of 18Y4, " after a candidate has been accepted as duly nominated by the returning officer and declared by him to the electors as such candidate, the returning officer has no po7ver or right to reject such candidate, or f he has a majority of votes upon their summing up to refuse to return him as elected." A majority of the committee, however, came to the conclusion after the hearing of evidence and <'laborate arguments on the A'arious points at issue, that Mr. Robertson had never legally resigned his seat, and that he was at the time of his election a member of the house of assembly of Prince Edward Island ; that an act of that province (39 Vict. c. 3), made it illegal for any member of the House of Commons to be 128 TlfE SENATE AM> IlorsE OF COMMONS. eleclccl to sit or vote in the house oi' assembly ; that according to the express terms of the second section' of the dominion act of 18*72 (35 Vict. c. 15), the majority of votes given for Mr. Robertson were thrown away ; that it was the duty of the returning officer to return Mr. MacDonald as the candidate, he being otherwise eligible and having the next highest number of votes ; that the return to the writ of election should be amended accordingly. When the report came before the house for final adoption, very conflicting opinions were again given on the points at issue. Amendments were moved to the effect, — 1st. That it was the duty of the returning officer to have returned Mr. Hobertson as elected ; 2nd. That steps should be taken to refer the points in doubt to the supreme court of Canada ; 3rd. That the house having declined to decide that Mr, Robertson should have been returned, the election should be declared null and void. The report was finally concurred in, and the clerk of the crown ordered to amend the return so as to declare Mr. MacDonald elected, " as having had the next highest number of votes lawfully given at such election" ; and this having been done, Mr. MacDonald took his seat and voted during the remainder of the session.^ Vm. The Independence of Parliament.— In the old legisla- tures of Canada, judges and other public officers were allowed to sit for many years in both houses, until at last the imperial government yielded to the strong remons- ^ This section reads : " If any member of a provincial legislature shall, notwithstanding his disqualification as in the preceding section men- tioned, receive a majority of votes at any such election, such majority of votes shall be thrown away, and it shall be the duty of the returning officer to return the person having the next greatest number of votes, provided he be otherwise eligible." 2 Can. Com. J. and Hans-, 1883, Feb. 19th, March 1st and 9th, and 2oth April. App. No. 2. The writer has confined himself to a review of the most material points raised on a question of a very perplexing character. This decision of the house, it is evident, gives very large powers to return- ing officers. THE IXDEPEXDEXCE OF PARLIAMEXT. 129 trances of the great majority of the representatives in the assemblies, and expressed their readiness to assent to such legislation as might be necessary to render the legislatures independent of official influence. Several statutes were passed in the course of time by the legislatures of Upper and Lower Canada, prohibiting judges from sitting in the legislative assemblies ;" but all attempts to prevent them Irom sitting in the legislative council were rendered nuga- tory by the opposition given in that house to all measures in that direction.' Legislation in the two provinces also provided for a member vacating his seat, in case of his acceptance of certain offices, but such appointment was not to bar his re-election to the house. Here we see the first step taken to require members of the executive coun- cil to vacate their seats, and seek re-election at the hands of the people.* After the union between Upper and Lower Canada, the legislature of the united provinces took up the question of the independence of Parliament, and endeavoured, as far as possible, to follow the example which had long before been given them by the parent state in this matter. ^ Garneau, vol. ii., p. 236, refers to the number of placemen in the old Lower Canada assembly : "The elections of 1800 returned as members of tlie assembly ten government placemen (or one-fifth of the entire number), namely, four executive councillors, three judges, and three other state officials." 2 7 Will. IV., c. 114, Upp. Can. Stat. See 51 Geo. III., c. 4., Lower Can. Stat. •' The strong opinions of the imperial authorities as to the independence of the bench and the legislature may be understood by reference to a despatch of Viscount Godorich, 8th Feb., 1831, in which he recommends the application of the English system under which judges are independent of the Crown. He thought, however, the chief justice might well remain a member of the legislative council, in order that they might have the benefit of his legal knowledge, but " his Majesty recommends oven to that high officer a careful abstinence from all jiroceedings by which he might bo involved in any contention of a i)arty nature." l^ower C. J. (1831), 53. ^ 7 Will. IV., c. 114, Upp. Can. Stat. ; 4 Will. IV., c. 32, Lower Can. Stat. 9 130 THE SEX ATE AND HOUSE OF COMMONS. In 1843, Attoriicy-GoiieralLafontaine presented a bill enti- tled "an act for better securing the independence of the legislative assembly of this province." This bill became law' in 1844, and has formed the basis of all subsequent Legislation in this country. Judges and other public officers, as well as contractors with the government, were specifically disqualified from sitting and voting in the assembly, and were liable to a heavy penalty should they violate the law^ Seats of members accepting offices of profit from the crown had to be vacated, and writs for 2iew elections issued forthwith ; but all persons, not disqualified under the act, could be again returned to the assembly — a provision intended to apply to members of the executive council. In 185 Y, Solicitor-Greneral Smith introduced an act amending the foregoing statute in several important particulars, with a view of giving the principle •embodied in the law more extensive application. Under the act,^ no person, accepting or holding any office, commis- sion or employment, permanent or temporary, at the nomination of the Crown in the province, to which an annual salary, or any fee, allowance, or emolument or profit of any kind or amount whatever from the Crown, is attached, shall be eligible as a member of the legislative council, or of the legislative assembly.^ During the first session of the first Parliament of the dominion, the act of 185*7 was re-enacted,^ with several amendments that w^ere necessary under the new state of things, but the great principle involved in such legislation — of preserving the independence of Parliament — was steadily kept in A'iew. It was provided, however, that one of the commissioners ^ 7 Vict., c. 65. Assented to by her Majesty in council, 17th April, 1844. Amended by 16 Vict., c 154, and 18 Vict., c. 86, certain doubts having arisen as to sections of the act of 1843. 2 20 Vict., c. 22, Can. Stat. * See Consol. Stat, of Canada, chap. iii. Amended in resiJect to recov- •ery of penalties by 29 Vict., c. 1. ♦ 31 Vict., c. 25, am. in 1871 by 34 Vict., c. 19. THE IXDEPENDENCE OF PARLIAMENT. 131 of the intercolonial railway, or any officer of her Majesty's army or navy, or any officer in the militia, or militiaman, (except officers on the staff of the militia receiving perma- nent salaries) might sit in the house/ In the session of 18^*7, attention was called in the House of Commons to the fact that a number of members appeared to have inadvertently infringed the third section of the act, which is as follows : " N'o person whosoever holding or enjoying, undertaking or executing, dirccth^ or indirectly, ulone or with any other, by himself or by the interposition of any trustee or third party, any ■contract or agreement with her Majesty, or with any public officer or department, with respect to the public service of Canada, or under which anj' public money of Canada is to be paid for any service or work, shall be eligil)le as a member of the House of May, 63-65 ; 18 E. Com. J., 336, 467 ; 20 Ih. 702 ; 39 lb. 770 ; 6d lb. 433 ; •69 lb. 433; 5 Pari. Hist., 910; 144 E. Hans. [3], 702-10, where numerous cases arc given. ^ 137 E. Com. J., 61-62. This case is so notorious tliat the writer need only refer the reader to ^lay, 210, ct sc/. nOO E. Hans. [3], 122-152; 125 E. Com. J., S, 27. 160 THE SENATE AM) HOUSE OF COMMONS. imprisonment, and was subscf[ucntly elected, in 1875, member for Tippei-ary, though lie had not received a pardon from her Majesty under the G-reat Seal. The necessary evidence of the facts hav- ing been laid before the house, he was declared incapable of being returned to the Commons. The ground was taken by the attorney-general that having had sentence passed upon him, and having neither received pardon nor suffered the punishment to which he was sentenced, he was disqualified.' In the session of 1882, a similar proceeding was taken in the case of Michael Davitt, who had been convicted of felony, and sentenced to penal servitude for fifteen years.^ The following are the most memorable examples of expulsion found in the records of Canadian parliamentary history : — In 1800, C. B. Bouc, member for Effingham, Lower Canada, was expelled on evidence being given that he had been convicted at the assizes of a conspiracy with sundry other persons, unjustly and fraudulently to obtain of one E. Dorion large sums of money. He was re-elected more than once, but finally disqualified by statute.'^ In 1829, Mr. Christie, member for G-asp^, was expelled on the report of a select committee of the Lower Canada assembly, on various allegations of misconduct, but ostensibly for having, as an extreme partisan of the government, badly advised the gover- nor and procured the dismissal of certain magistrates from the commission of the peace, on account of their political opinions and votes in the assembly. He was re-elected and expelled several times,* 1 222 E. Hans. [3], 490, 539 ; 130 E. Com. J. 52. He was again returned, and as there had been a contest, the matter was determined under the Election Petitions Act. The other candidate, having given due notice of the disqualification, proved his claim to the seat, and the return was amended accordingly. 224 E. Hans., 918, 919 ; 130 E. Com. J., 235, 236, 239. 2 137 E. Com. J., 77. =* Lower Can. J. [1800], 54, 76, 96; /6. [1801], Jan. 24 ; 76. [1802], 324. I. Christie's Lower Canada, 210. 221. 42 Geo. HI., c. 7, Low. Can. Stat. * Lower C. J. [1829], 447, 465, 479, 493; lb. [1830], Jan. 1st; lb. [1831], November ; lb. [1832], 12 ; lb. [1833], 25. III. Christie's Hist., 240. This case illustrates the extreme lengths to which party spirit carried parlia- mentary majorities in the early times of Canada. He was not even DISQUALIFICATION OF MEMBERS. 151 In 1831, the legislative assembly of Upper Canada declared Mr. AYilliam Lyon Mackenzie " guilty of gross, scandalous, and malicious libels, intended and calculated to bring this house and the government of this province into contempt, &c." He was expelled, and having been subsequently re-elected Avas declared incapable of holding a seat in the house during that Parliament. On again presenting himself, he was forcibh" expelled by the serjeant-at-arms. As in the case of Mr. Wilkes, in England, to which we refer further on, the assembly acted arbitrarily and illegally. In a subsequent Parliament, all the proceedings in Mr. Mackenzie's ease were expunged from the journals.^ In 1858 Mr. John O'Farrell was exjielled for fraud and violence at the election for Lotbiniere.- In 1874, on motion of Mr. Mackenzie Eowell, Louis Eiel, who was accused of the murder of Thomas Scott during the Xorth- West troubles, was expelled as a fugitive from justice, the neces- sary evidence having been previously laid before the house. ^ Eiel was again returned to Parliament during the recess, and soon after the house met, in 1875, the premier (Mr. Mackenzie) laid on the table the exemplification of the judgment roll of out- lawry, and then moved "that it appears by the said record that Louis Eiel, a member of this house, has been adjudged an outlaw for felony." This motion having been agreed to, Mr. Mackenzie moved for the issue of a new writ for Provencher " in the I'oom allowed to confront his acciisers before the committee. Tlie question was referred to the Britisli jrovernment, which disapproved of the action of the legislative assembly, l)ut at the same time admitted that the resolu- tion of the assembly was irreversible except by itself. Despatch of Vis- count Goderich; Low. Can. J. [1832-3], 50, 57, 129, 130, 137, 138. ' Upp. Can. J. [1832-3], 9-10 ; 41, 132 ; Ih. [1833-4], 10, 15, 23-25 ; 20, 40, 54, 55, 104 ; lb. [1835], 17, 24, 25, 20, 59, 141, 142, 408 ; Mackenzie's Life, by C. Lindsey, chaps. 13, 14, 15 and 17. See also case of ^Iv. Durand, mem- ber for AVentworth, expelled for committing a libel, and a high contempt of the privileges of the house; Upp. Can. J., 4 March, 1817. ^Leg. Ass. J. [1858], 454. ^Can. Com. J. [1874], 8, 10, 13, 14, 17, 18, 32, 37, 38, 07, 71, 74. See case of Mr. James Sadleir in 1857, charged with divers frauds, and a fugitive from justice, 144 E. Hans. [3], 702. Kiel actually took the oatli in tlio clerk's olhce, but not his seat in the chamber. 152 THE SENATE AM) 110 CSE OF COMMONS. of Louis Kiel, udjudircd an otitliiw," wliich also passed hy a lai-ge majoi-it3\^ The cases of Mr. Christie and Mr. Mackenzie, given in the foregoing- list of precedents, find a paralh;! in the famous case of Mr. Wilkes, who was expelled in 1764 from the British House of Commons for having uttered a sedi- tious libel. A contest then arose between the majority in the house and the electors of the county of Middlesex. The house in 1769 declared him ineligible to sit in that Parliament, when he had been again elected for Mid- dlesex. Though Mr. "Wilkes was re-elected by a large majority of the electors, the house ordered the return to be amended, and his opponent (who had petitioned the house) to be returned as duly elected. The efforts of the electors of Middlesex were unavailing for the time Ibeing to defeat the illegal action of a violent i^artisan majority. Many years later, in 1782, when calmer coun- sels prevailed, the resolution of 1769 was expunged from the journals " as subversive of the rights of the whole body of electors of the kingdom" — which is the identical lan- guage subsequently used in expunging the various pro- ceedings relative to Mr. Mackenzie.- No j)rinciple is more clearly laid down by all eminent authorities on the law of Parliament than this — "That Parliament cannot create a disability unknown to the law, and that expulsion, though vacating the seat of a member, does not create a disability to serve again in Parliament." ^ Both houses of Parliament " must act within the limits of their juris- ^Can. Com. J. [1875], 43, 67, 111, 118, 122, 124, 125. Can. Hans. [1875], 139, 144, 307, 308, 315. The O'Donovan Rossa precedent was followed by INlr. INIackenzie. INIr. Bowell had previously placed a motion on the paper for the expulsion of Kiel, but withdrew it when he found that the government projaosed dealing with the matter. Votes, 1875, Feb. 11, and Can. Hans, of same date. 2 32 E. Com. J., 229; 1 Cavendish D., 352 ; 38 E. Com. J., 977 ; 2 :May's Const. Hist., 2-26. See also for other examples of excess of jurisdic- tion, 2 E. Com. J., 158 ; 2 Ih., 301 ; 2 lb., 473 ; 8 lb., 60 ; 17 lb., 128. 3 May, 63. SUSPEXSIOX OF }{ EMBERS. 153 diction, aud in strict couformity with the laws. Au abuse of privilege is even more dangerous than an abuse of pre- rogative. In the one case, the wrong is done by an irre- sponsible body ; in the other, the ministers who advised it are open to censure and i^unishment. The judgment of offences especially should be guided by the severest prin- ciples of law." ^ The house may proceed in various ways to inquire into the propriety of allowing a member to associate with other members of the house, when he is accused of a grave offence. Committees and commissioners have at times been appointed to inquire into the allegations." It is the proper course to lay the record of conviction before the house, when a member has been convic-ted in a court ■of justice.'^ The house, however, is not necessarily bound to the necessity of a conviction, for it may, apart from mere legal technicalities, acting upon its moral conviction, but at the same time most cautiously, proceed to the expulsion of a member.^ In all cases, however, it is necessary that the member should have an opportunity of being heard in his place before proceeding to expel him.' By reference to the precedents given above, the proper procedure in all cases will be more clearly understood. XrV. Suspension of Members. — Expulsion is an extreme penalty only to be enforced undi^r extraordinary circum- stances. In cases of minor gravity, the house may be satisfied with ordering the speaker to admonish or rei>ri- mand the oifender, and the remarks of the speaker ought ^ May's Const. Hist., vol. ii., pp- 26-7, 3rd ed. ^ 11 E. Com. J., 283 ; 20 Ih., 391 ; 21 Ih., 870 ; 0.5 Ih., 433. So« also Can. ■Com. J., 1876, March 16 and 28 ; also Hansard of those dates. ^ 67 E. Com. J., 176 ; 69 Ih., 433 ; 222 E. Hans. [3], 415. * 144 E. Hans. [3], 71.5. 5 69 E. Com. J., 433 ; 111 lb., 307 ; 144 E. Hans. (,3), 711. Can. Com. J. £1874], 18. 154 THE SENATE AXI) IIOCSE OF COMMONS. always to be entered on the journals after motion duly made.' The house may also under certain circumstances proceed to the rigorous measure of suspending a member temporarily from his functions. "There is no doubt," says an authority, " that under the common law of Parlia- ment any member, wilfully and vexatiously obstructing public business, would be held to be guilty of a contempt of the house, and would be liable to a suspension from his duties as a member." " The rights of electors are no more infringed than if the house had exercised its un- questionable power of imprisonment.'^ No necessity has ever arisen in the Canadian Parliament for exercising this extreme ]30wer which ought clearly to be used only in a grave emergency. It has, however, been found necessary to adopt a new standing order on the subject in the English House of Commons, on account of the conduct of certain members who have wilfully and persistently obstructed public business.^ XV. Questions affecting Members referred to Select Committees. — In the Canadian, as in the English House of Commons, " whenever any question is raised affecting the seat of a member, and involving matters of doubt, either in law or fact, it is customary to refer it to the consideration of a committee." " For example : In the case of Mr. Perry, 1 Case of Mr. O'Connell, 1838, vol. 3, pp. 2231, 2263, 3Iirror of P.; E. Com. J., 1838, Feb. 28. -Mr. Eaikes (chairman of committees) before Committee on Public Business, 1878, p. 110, 132. For old cases, 2 E. Com. J., 128 ; 8 lb., 289 ; 9 Ih., 105 ; 10 lb., 846. =* May, 65. * Standing order made 28 Feb., 1880, amended 21 and 22 Xovember,. 1882. See infra at end of cliai>ter on debate, where it is given in full, and cases of suspension are also cited. Hoav necessary it has been in England to make some changes in the English rules, in order to prevent obstruc- tion and promote the progress of public business, may be understood from a perusal of an article by Mr. Eaikes in the November number of the " Nineteenth Century," 1879. ^May, 713 ; 94 E. Com. J., 29, 58 ; 103 J6., 388; 110 lb., 325 ; 134 lb., 86. PLACES IX THE HOUSE. 155 referred to iu a previous page ; ^ of Mr. J. S. M'Douald and Mr. C. Dunkiu, whose seats were questioned on account of their holding offices in the executive councils of Ontario and Quebec ; ^ of Mr. R. B. Cutler, who had been paymaster of a governinent railway at the time of his re-election ; ' of 'Mr. DeLorme, who was charged with complicity in the Tied River rebellion ; ' of Mr. Anglin, and others, alleged to have violated the Independence of Parliament Act.'^ In the case of Mr. Daoust, 1876, the matter was referred to the committee on privileges and elections, which reported in his favour f but in 1880 the house refused to refer a petition making certain charges against Mr. Hooper to the same committee." In other cases where there is evidence of crime, or of the person accused being a fugitive from justice, it has been con- sidered sufficient to lay the papers formally before the house ; ^ but whenever the seat or character of a member is affected the house will invariably proceed with due caution and deliberation. A reference to a committee is no doubt the proper procedure in all cases in which there are reasonable doubts as to the facts or the course that should be pursued, especially when it is necessary to examine precedents.^ XVI. Places in the House.— The members of the two houses are provided with seats and desks, ''^ to which is affixed a ^ Supra p. 125. 2 Can. Com. J. [1867-S], 44. ^Ib. [1873], 285, 321, 328. * lb. [1871], 249. This matter was not referred to the committer, as proposed in the original motion, on the ground that a sufficient case was not made out. ^ Supra p. 131. « Can. Com. J. [1876], 145, 159, 160, 208. Ub. [1880], 60, 62, 87, 88. ^ Case of Louis Iliel, .vipra p. 151. nir. Gladstone, 199 E. Hans., 123. '" Seats were first jirovided in Low. Can. Ass., 1 7 Jan., 1801. Soo Scrolls Life of Lord Sydenham, 223, note. 156 THE SENATE AND HOUSE OF COMMONS. card with the name of the member to whom it has been allotted. The members of thci privy council occupy places to the right of the speaker, and the leading members •of the opposition to the left. The older members are generally given the preference in the first rows. The location of seats in the House of Commons is arranged by members, placing themselves in communication with the ;serjeant-at-arms, whose duties are referred to in another place.^ 1 Chap. III. CHAPTER III. THE SPEAKERS AND OFFICERS OF THE TWO HOUSES, &c. I. Speaker and Officers of the Senate — Contingent Accounts Committee, — II. Speaker of the House of Commons. — III. Officers and Clerks, &c., of the House of Commons. — IV. Admission of Strangers. — V. Clerk of the Crown in Chancery. — VI. Votes and Journals. — VII. Official Re- ports. — VIII. Library and Eeading Rooms. — IX. Commissioners of Internal Economy. I. The Speaker and Officers of the Senate. — The speaker of the Senate is appointed by a commission under the great seal, and may be removed at any time by the governor- general.^ The proceedings consequent on the appointment of a new speaker will be found fully explained in another part of this work." In case of the unavoidable absence of the speaker during the session, it will be necessary to appoint a new speaker for the time being. When the former returns his re-appointment must be made known to the house with all the usual formalities.'^ The speaker presides over all the deliberations of the 1 Sec. 34, B. N. A. Act, 1867. The first speaker of the leg. conn, of Canada, 1841, was the vice-chancellor of tho court of chancery, R. S. Jameson, Jour. p. 19. ■' Chap. VI. 3 Mr. Cauchon, 1869; Jour. p. 81 ; Deb. p. 58, May 17. In tho session of 1880, Mr. Macpherson fell seriously ill and it became conseciucntly necessary to appoint Mr. Botsford, speaker. Journals, Fob. 1(), and Han- sard of that date. Mr. Macpherson was subsequently reappointed. Sen. .1. p. 177. In 1872 Mr. Speaker Cauchon was accidentally detained, and infor- mation was given of the fact by the clerk when tho Senate met. Mr. Hamilton took the chair, and by consent declared tho house continued till 9.30 that evening. Sen. J. (1872), 79. 158 SPEAKERS AND OFFICERS OF I'.OTII IKH'SES. Senate, except when the house goes into committee of the whole, and then he must call another member to the chair. lie has in all cases a vote,' which is the first recorded on the side on which it is taken, and he decides questions of order when called upon for his decision." If he wishes to address the house on any subject, he will come down from the chair — like the lord chancellor in the House of Lords — and speak from the floor like other members, but this is a privilege which he will very rarely exercise.* He stands uncovered when sj^eaking to the Senate, and if called upon to explain a point of order or practice, he is to state the rule applicable to the case, and also to decide the c[uestion when required, subject to an ai)peal to the Senate.^ The speaker in the Senate, like the speaker in the Com- mons, presents to the house all papers, returns, and addresses which he has received and which ought to be laid before that body.^ The principal officers of the Senate are the clerk, clerk assistant, and gentleman usher of the black rod, who have all seats on the floor of the house. The clerk and clerk assistant have also been hitherto appointed masters in the chancery of Canada, by virtue of special commissions under the great seal." The clerk, who is appointed by the Crown, performs duties similar to those of the clerk of the Commons, and also acts as accountant in pursuance of the ^ Sec. 36, B. N. A. Act, 1867. See chapter on divisions. 2 Sen. Deb. ("Times "), 1867-8, pp. 176, 184. ^ Mr. Speaker Christie, Sen. Deb. (1877), 131 ; Mr. Speaker Wilmot, 2d May, 1879 ; Lords' S. 0. 2 ; May, 246 ; Mr. Speaker Macpherson spoke at some length in committee on Canadian Pacific Railway bill, Feb. 14th, 1880-81. He came down from the chair in the session of 1882, and made a few remarks when a senator directly referred to a speech he had made some years previously. Hans. p. 749. ^Sen. E. 29. 5Sen. J. [1867-8], 206,210, 230-231, 269, &c. ; Ih. [18S0], 17, 30, 47, &c. 6 Sen. J. [1867-8], 61, 62 ; lb. [1883], 15. Also, the law clerk. SPEAKER AND OFFICERS OF THE SENATE. 159 orders of the house itself.' He reads the commission for the appointment of a new speaker,- and takes minutes of all the proceedings of the Senate. He administers the oaths required by law to new members as one of the com- missioners appointed for that purpose.'' At the proro^-a- tiou of Parliament he pronounces the royal assent to bills, or signifies that certain bills have been reserved.^ He also replies, by his Excellency's command, accepting the benevolence of the Commons, when their speaker makes the usual speech in presenting the Supply Bill."' When- ever a new clerk is appointed, the speaker will inform the house of the fact, and the commission will be read and put on the journals. He will then take the oath of oflB.ce before the speaker." By an act' passed in 18*72, the clerk of the Senate is also styled the clerk of the Parliaments, and has the custody of all the original acts of Parliament. He has a seal of office which he affixes to certified copies of all acts intended for the governor-general or the registrar- general of Canada, or required to be produced before courts of justice. The same act contains also provisions relative to certified copies of acts which may be furnished on application to the clerk of Parliaments for a small fee, which goes into the contingent fund of the Senate.^ The clerk assistant, who is also generally the deputy clerk, sits at the table to the right of the chief clerk. He ^ Report of contintient committee on subject, Sen. J. [1867-8], 131 ; Ih. [1870], 1G5. An assistant appointed in 1875, Jour. p. 34; Ih. [1877] 115. '' lb. 1873, 1874 and 1879. •■' lb. [1874], 14, &c. ; lb. [1883], 18. Sec. 128, B. N. A. Act, lS(i7. * lb. [1874], 262, &c. ; lb. [1883],. ^ Sen. J. [1874], 262-3, &c. ; lb. [1883], 2!»7. « Ih. [1867-8], 55 ; Ih. [1871], 15-16 ; Ih. [1883], 13, 14. For jn-arti.v in Lords, which is similar, see 223 E. Hans. (3), 1684. ' 35 Vict., c. 1, Dom. Stat. This act docs not contain a power of (U^jni- tation. ** The clerk of the Commons in England — l)nt not in Canada — is the " under-clerk of the Parliaments to attend upon (lie Comnioiis." 2 Hat- sell, 255 ; London Gazette, 3rd Feb., 1871. 160 SPEAKERS AND OFFICERS OF BOTH HOUSES. is not sworn like the officers of the Commons.' His duties consist in reading petitions and other documents, in tak- ing minutes of proceedings in committee of the whole, and in otherwise assisting the clerk in the business of the house. In the session of 1877 another clerk was ap- pointed to sit on the left of the chief clerk, chiefly for the purpose of making at the table translations of the pro- ceedings." The gentleman usher of the black rod, who is appointed by the Crown,'^ is always sent to desire the attendance of the Commons at the opening or prorogation of Parliament, and executes all orders for the arrest or commitment of parties guilty of breaches of privilege and contempt.^ The speaker will report any new appointment to the house,, as in the case of all other officers under royal commission.* The Senate has also a serjeant-at-arms, who carries the mace, and executes the orders of the house for the attach- ment of delinquents, when they are in the country.*^ The usher of the black rod performed the duties of this office until 1869, when an officer was appointed to fill the posi- tion.'' The chaplain of the Senate is appointed by commission- under the privy seal.* "U^henever it is necessary to appoint other officers, the subject is referred to the committee on contingent accounts, w^ho report as to the necessity for ^ He acts as deputj' by virtue of authority from the clerk. In the Lords he is appointed by the lord chancellor, and the house is always informed of the fact, and asked to approve, 223 E. Hans. (3), 1685. In the Senate the contingent accounts' committee appoints the officer and gives the title, as they do in fact in the case of all officers not appointed by the Crown. Sen. J. [1867-8], 176 ; Ih. [1882], 300. ■^Sen. J. [1877], 114, 275. 3 Ih. [1867-8], 56. * May, 256. * Sen. J. [1867-8], 29. He occupies, like the serjeant-at-arms of the Com- mons, apartments in the Parliament Buildings. Ih. [1876], 29. « May, 256. ' Sen. J. [1867-8]. 90 ; Ih. [1869], 83. ^ Ih. [1869], 33-4. The clerk's commission is under the great seal. SPEAKER AXD OFFICERS OF THE SEX ATT':. ](31 such office, and the salary that ought to be g-iven.' All appointments and salaries (except the ax^pointraent of crown officers) as well as promotions, are regulated by this committee." In fact it supervises all the ordinary expenses of the Senate, apart from the members' indem- nity and other expenditures authorized by statute;^ Its members have always jealously resented all attempts ta interfere with the control of matters which it is the prac- tice to refer to them/ All petitions and papers referring to salaries and expenses of the house are invariably sub- mitted to the consideration of this committee before any definite conclusion is arrived at on the subject/' At the commencement of every session the clerk is to lay before the Senate, on the day after the appointment of the com- mittee on contingent accounts, and as often as he may be required to do so, a detailed statement of his receipts and disbursements, since the last audit, with vouchers in sup- port thereof/ The committee in question will always report on the correctness of these accounts/ In 1880 the Senate agreed that " the accounts of expenditure for salaries and contingencies of the Senate, and for their members' indemnity, &c., should be audited by the auditor-general in the same manner as those of the House- of Commons/' ^ The daily printed record of proceedings which is prt^- pared by the officers of the house in the two languages and sent to every member is called " Minutes of Proceed- ings," a copy of which, certified by the clerk, must be transmitted daily to the governor-general/ ' Ih. [1869], 83 ; Ih. [1875], 132 ; Ih. [1870], 8(). - Ih. [1880], 252 ; Ih. [1882], (55, 300 ; lb. [1883], 4-1, 'Jl. ■■' Sen. J. [1877], 44, 66, 114, &c. ; Ih. [1880-81], 103-4. ' Sen. Deb. [1875], 25, 37, 66, 69. '■> Sen. J. [1867-S], 200, 273 ; Ih. [1876], 61 ; ///. [1880], S7, m. •• Sen. R. 86 ; Jour. [1879], 51 ; //). [1883], 46. ' Se.n. J. [1878], 234 ; U,. [1879], 24(i ; Ih. [1880], 18(5. ■■Sen. J. [1880], 97. " Sen. K. 105. 11 162 SI'KAKERS AXI) OFFICERS OF IJOTJI J/OFSES. The journals which are almost identical with the min- utes, are bound in annual volumes as soon as possible after each session, with a full index. Copies of the journals are transmitted to the colonial office, to the Houses of Lords and Commons, and to the legislatures of the British Colonies. The librarian is also furnished with sufficient copies of tht^ journals, and of all reports from heads of public departments, or concerning any- public institution for general exchange. The clerk is also to make arrangements for exchanging the laws of Canada for those of the Imperial Parliament and of the colonial legislatures.^ Strangers are admitted to the galleries and to that part of the house which lies without the bar. The house may, however, be cleared at any moment, in conformity with a standing order, like that of the House of Commons, to which reference is made in a subsequent page of this chapter.^ n. The Speaker of the House of Commons.— There are four sections of the British North America Act, 186t, which refer to the election of speaker of the House of Commons. The 44th section provides — " The House of Commons on its first assembling after a general election, shall proceed with all practicable speed to elect one of its members to be speaker."-^ 1 Sen. R. 105-109. 2 Page 176. * This is substantially section 33 of the Union Act of 1840. In the first session under that act the governor-general did not come down on the first day, but the house proceeded immediately to the election of speaker, after the clerk had read the proclamation and sec. 33 of the act. Exception was taken to this procedure at the time. (Quebec Mercury, June 19, 1841). Next day the governor-general came down and opened Parliament. Leg. Ass. J. [1841], 2, 3. In subsequent sessions, the present usage was followed in conformity with British constitutional practice which requires that the sovereign give authority to the house to proceed to election of speaker. 2 Hatsell, 218. SPEAKER OF THE HOUSE OF COMMOXS. 163 The proceedings in such a case are described more 7. => 113 E. Com. .T. 192 ; Can. Com. J. [1873, 2ncl se!^s.], 135. ' 32 E. Com. .1. 708 ; 10 E. Hans. (1), 1170. » Rule 8. " 2 Hateell, 230. ' Chap, on addresses. ® For a recapitulation of the responsil)lo duties devoIvin.Lr on a p|K>.nker, and of the liigh ([ualities lie should posse-ss, see Sir R. rahiier (I>ord Selborne), on election of :\Ir. P.rand, 20i» E. Hans. (3), 183 ; T.ord Stowoll, on re-election of Mr. Abbott in 1802, Cushing, 127 ; Ixix Pari. 2t>4 ; 2 Tarl. Hist. 585 ; 2 Hatsell, 242 n. Also, Reports as to otlico of siK'aker, V.. ( "oni- mons P. 1853 and 1855. ^ In the Lords, the s{x>akor takes no notice of irregularities until his attention is specially directed to the same by a menjl)er, May,24il. 168 SPEAKERS AM) OFFICERS OF BOTH I/OfSES. ill debate or procedure, and not to wait for the interposi- tion of a member : " For the s])cakcr is not placed in the chair merely to read every bit of paper, which any member puts into his hand in the foi-m of a question ; hut it is his duty to make himself ])erfcctly aequaint- ■ed with the orders of the; house, and its ancient practice, and to •endeavour to carry tjiose ordei-s and that practice into execution. . Therefore, though any member may, yet Mi-. Speaker ought to interi'upt any members who speak beside the •question or otherwise break the rules.'" The speaker, however, cannot be called upon to decide a question of law.^ When the house is in committee of the whole, the speaker has an opportunity, should he think proper to avail himself of it, of taking part in the debates. This is a privilege, however, which, according to the authorities, he will only exercise on rare occasions and under excep- tional circumstances.-^ For instance, he will always explain, when necessary, matters connected with the internal economy of the house,^ and may sometimes refer to matters of interest to his constituents when the esti- mates are under consideration.^ But in the Canadian, as in the English, House of Commons the speaker carefully abstains from taking part in any matter of party contro- versy or debate," and if at times he feels compelled to express a strong dissent from any public measure, he will confine himself to the expression of his opinion, and will not enter into any argument with others who may difier from him." He never votes on the divisions in committee.* 1 2 Hatsell, 233. 2 Leg. Ass. J. [1804], 444; Can. Com. J. [1S6S], 1(31; 150 E. Hans. (3), 2104. * Mr. Raikes, committee on public business, E. Com. P., 1S7S, ix 136. * Can. Hans. [1878], 1819, 2247. s lb. [1878], 1107. « May, 415. ' Mr. Speaker Angliu, on Temperance Act, May 7, 1878. * Mr. Eaikes, Public B. Com., 1878, p. 13(3. In England, the same OFFICERS OF THE HOUSE OF COMMOyS. 169 m. The Officers of the House of Commons, &c. — The clerk of the House of Commons is its reeordiug officer, and sits at the table with oue or two assistants. He is appointed by- commission under the great seal of Canada, and holds his office during- pleasure,^ — virtually until his health or age no longer permits him to perform his duties ; and then he is entitled to a superannuation allowance like all oflS.cers of the civil service." He takes notes of the pro- ceedings, of the res gestcc, of the Commons. He is " to make true entries, remembrances, and journals of the things done and passed in the House of Commons ; but it is without warrant that he should make minutes of particu- lar men's speeches." '^ His minutes are made up every day in a brief and convenient shape, known as the " votes and proceedings," which comprise a record of all the i)ro- ceedings, but omit many of the parliamentary forms which are given in full only in the journals, when these are made up after the close of a session. The votes are now prepared on the responsibility of the clerk' by an officer, speaker is re-elected, whenever practicable, for several parliaments. 'Mr. Shaw Lefevre was speaker abont 18 years; Mr. E. Denison, 15 years. It is also usual to elevate them to the peerage, and confer a pension of £-l,0(X) sterling on thorn, when they retire from office. For instance ^Ir. Ixifevro became Viscount Eversley and Mr. Denison, Viscount Ossington. 144 E. Hans. (3), 2054, &c. ; 209 lb. 150-;]. In tlie old assemblies of Lower Canada, Mr. Panet and Mr. Pai)ineau wore re-elected speaker several times. Mr. Cockburn was elected both in 1867 and 1873. See speech of Sir J. Macdonald in proposing Mr. Cockburn a second time. Pari. Deb., 1873, p. 1. ^ The commission roads : "For and during our royal pleasure and the continued residence of you the said within our dominion of Canada." The clerk of the English Commons is ai)pointed f(.>r life by letter6-i>atont May, 256. ■^ Infra, p. 175. •" 2 Ilatsell, 267. The old English journals contained sliort rei>orts of debates. See vol. i. * A committee formerly "surveyed the clerk's book," and was intnistod with a certain discretion in revising the entries. Tlie minutes were also read everv dav before the commencement of the n^gular bu.sini'ss; l)ut lYO SI'ICAKICIIS AXJ) OFFICKHS OF IIOTII IIOfSES. especially scIcm icd ibr his knowlcdgo and cxporiiMico, and it is ordered that "they be printed, being first perused by Mr. Sp<'aker." ' In recording the minutes, the clerk must always wait for the directions of th(^- speaker." Conse- quently the clerk cannot record any motion until it is formally pro})osed from the chair.^ In case of any mistake or omission in the votes it should be immediately noticed by a member in the horise ; and it may be corrected either by an order of the house, or by the clerk himself in the shape of an erratum at the end of the votes ;^ but if the mistake is not discovered until after some time it ought properly to be corrected by an order of the house ;' and sometimes under exceptional circumstances only on the report of a committee appointed to investigate the subject." It is the duty of the clerk to read whatever recjuires to be read in the house ; but this part of his duty is now almost invariably performed by one of the assistant clerks at the table. He authenticates, by his signature, all the orders of the house, for the attendance of persons, for the production of papers and records, for the appointmient and such usages were soon found inconvenient. 9 E. Com. J. G40 ; Low. Can. J. [1792], 32. ^ Can. Com. J. [1877], 12 ; 131 E. Com. J. 5. The speaker's name is also appended. The clerk also signs the copy forwarded daily to governor- general. ^ Hatsell says : " The rule is to wait for the directions of the speaker, and not to look upon the call of one member, or any number of members, as the directions of the house, unless they are conveyed to the clerk through the usual and only channel by Avliidi he can receive them."^ ii. vol., p. 271. ■' In August, 1873, ^Ir. Mackenzie rose and read a motion, but before it was proposed from the chair, the gentleman usher of the black rod came down with a message from the governor-general. The speaker immedi- ately left the chair, and went up to the senate chamber where the houses were prorogued. No record conse(]uently appears in tlie journals of the motion in question. Pari. Deb. pp. 210-211. •* Can. Com. J. [1871], 173 ; Votes and P. [1883], 402. '= Can. Com. J. [1877], 33(; ; Can. Hans. [1875], 2G0, remarks of Sir J.. A. Macdonald. « 2 Hatsell, 200. OFFICERS OF THE HOUSE OF COMMONS. lYl meeting- of committees/ and certifies all the bills which pass the house." He has the custody of all the journals, papers, and files ; and it is " at his peril" if he suffers any of them to be taken from the table, or out of his cus- tody, without the leave of the house;' It is the duty of the clerk and clerks assistant " to complete and finish the work remaining- at the close of the session."^ He has the " direction and control over all the officers and clerks employed in the offices, subject to such orders as he may from time to time receive from Mr. Speaker or the House. "^ He assists the speaker and members whenever questions arise with respect to the rules and proceedings of the house. He is to place on the speaker's table " every morning x:)revious to the meeting of the house, the order of the proceedings for the day." ** It is his duty to deliver to each member, at the commencement of every session, a list of all periodical statements which are required by law^ or by resolution of the house to be laid before it." He is to take care that " a copy of the journal, certified by him- self, be delivered each day to his Excellency, the Grover- nor-Grcneral." ^ The clerk assistant and second clerk assistant take minutes of the proceedings in committee of the whole, — the latter only in the absence of the former — and read the titles of all bills in English and French. These olii- cers are not appointed by the Crown as in England,'" but ^ 2 Ilatsell, 2()8. '' Kulo44. ^2 Hatsell, 2(i5 ; rule ](i4. T1h>. nieiiilwrs have tlio riiilit to iktiish all pajiers in the. jKi.sscsfsiini ol'tlie clrrk, and to olitain coi>it's of tlicni tiinm^'li liiin. * Rule. lOr,. »Rnlo 104. « Rule 105. " Rule 100 (not invarialily I'olluwed). » Rule 91. " 2 Ilatsell, 27:5. '"They are appniutiMl, however, in iMiirlanil. nu thc^ rcconinicntiatioii of 112 SPEA KERS A ND O FFKJEllS OF 11 Til HO USES. by Mr. Spciikr-r, like ;ill other olficers, clerks, and messen- gers of the house.' No second clerk assistant has been appointed since 1880, but provision for such an officer is annually made in the estimates. All the officers at the table should be sufficiently conversant with the two lan- guages, so as to translate, when necessary, into the lan- guage with which each of them is best acquainted.^ The business of the house also requires the employment of a large number of permanent and temporary clerks, in addition to the officers who sit at the table. One of the most responsible officers in each house is the law clerk who drafts public bills and "revises them after their first reading." In every subsequent stage of such, bills he is " responsible for their correctness, should they be amended." He must also " prepare a ' breviat ' of every public bill, previous to the second reading thereof."'^ Per- Ihe speaker, 19 & 20 Vict, c. 1, Imp. Stat. Treasury Min., Pari. Pap., 1856, vol. 51, p. 1 ; 140 E. Hans. (3), 258, 447. The clerk is appointed by the Crown, •on the recommendation of the prime minister, 114 E. Hans. (3), 142. ^ In the old assemblies the clerk had originally the right of appoint- ment, with the ai)probation of the speaker. Leg. Ass. J. [1852], 451, lb. 1860, App. No. 8 ; which latter report was not concurred in. Gradually all the appointments came to be made by the speaker, though the contin- gent accounts committee attempted frequently to limit the speaker's pre- rogatives in this particular but to no purpose, App. No. 2, Jour. 1862 ; also, No. 6, Jour. 1866. Jour. [1863], App. No. 1 (not concurred in) ; lb. [1864], 498. Also since 1867, see rule 102. Pari. Deb. [1873], 66-7; lb. [1878], 708-9 ; lb. [1879], 35, Sir J. A. Macdonald. In England the vacancies, as they occur, are filled up by the speaker, the clerk, and serjeant-at-arms in tlieir respective departments, 1 Todd, 387. Pari. Pap. 1856, vol. 51, p. 1. 52 Geo. Ill, c. 11. No authority appears for taking the privilege out of the hands of the clerk in Canada. The speaker has exercised the right for years and the house has acquiesced in it as is shown by rule 102. ^ The legislative assembly of Canada passed a resolution to that effect in 1859 (p. 323, Jour.) No rule exists in the Commons, but ISlr. Speaker will always make inquiries on this point, when appointing an officer to the table. Otherwise, much inconvenience might arise, if the French clerk Mere absent — one of the oflicers being invariably a French Canadian. ^ Rule 48. In 1880 it was proposed to amalgamate the law and trans- lation departments of the two houses, but after full inquiry a committee OFFICERS OF THE HOUSE OF COMMONS. 173 maneiit clerks are also appointed to assist the commit- tees of railways, canals, and telegi-aph lines, of stand- ing orders, of private bills, of privileges, etc. It is also necessary to employ a staff of competent translators whose duties are of a very onerous nature. The clerk may also' employ " at the outset of a session, with the approbation of the si^eaker, such extra writers as may be necessary, engaging others as the public business may require.'" It is also ordered" : ''Before iilling any vacancy in the service of the liouse hy tlic- speaker, inquiry shall be made touching the necessity for the continuance of such office; and the amount of salary to be attach- ed to the same shall be fixed by tlie speaker, subject to the approval of the house." " No allowance shall be made to uny person in the employ of the house, who may not reside at the seat of government for travel- ling-expenses, in coming to attend his duties."' In case of any changes in the personnel of the officers, who have seats on the floor, it is usual for the speaker U> commTinicate the fact to the house w^hen the doors are opened. It is also custoraiary to enter the appointment of a permanent officer in the journals, and in the case of the clerk in the old Canadian Parliament that he had taken the reported against the proposition. The duties of the- law officers and trans- lators are very fully sot forth in memorandums attached to tlie reixirt. Sen. J. [1880], 225-234 ; Com. J. App. No. 4; Sen. Hansard, p. 4()S ; also, Scni. J. [1882], 65, 75, report of contingent accounts conuuitteo as to duties of :i new oflicer appointed. ' Rule 110. Even this privilege of lato years has been oxcrcisod Udt by the clerk, but by the speaker. No limit was for years imposed to the number of extra or sessional clerks, which became excessive in somo sessions — the number steadily increased from 1S72 to 1870, and ex- ceeded 70 in the latter year. The coranuBsion of internal wononiy decided to make such clerks permanent, and to limit tho numl)er to 2'y .sessional clerks and 5 extra translators, besides 5 junior so{rohon, in 1877, in absence of clerk assistant, M. Piche. =* 2 Hatsell, 254 ; Leg. Ass. J. [1862], 216. In the English Commons, it is usual for the house to express its sense of the exemplary manner in which the clerk has discharged his duties, Avhen the time has come for his retirement. 2 Hatsell, 254, n. ; 126 E. Com. J. 27 ; 204 E. Hans. (3), 232. In 1862, the legislative assembly of Canada adjourned out of resjject to the memory of tlie late clerk, after passing a resolution on the subject. Jour. (1862), 210. See also proceeding in the Senate on retirement of Mr. Le Moine, who was allowed certain honorary privileges. Sen. J. [1883], 278. Hans. p. 627. * 31 Vict, c. 27, sec. 9. ^ In 1878-9 a difficulty arose with respect to the right of the speaker, after the dissolution of 1878, to make certain appointments. Mr. Anglin. OFFICERS OF THE HOUSE OF COMMONS. 175 ■clerks, and messeng-ers are to take the oath of aUegiauce oil their apx)ointment, before the clerk, who shall keep a register for the purpose/ The sux^eraiinuation act applies to the permanent officers and servants of both houses, " who, for the purposes of this act, shall be held to be in the civil servi<'e of Canada, saving always all legal rights and privileges of either house as respects the appointment or removal of these officers and servants or any of them."- The serjeant-at-arms is appointed by the Crown, and remains in office during jjleasure, or until he is super- annuated. He sits at a desk near the bar ; attends the speaker with the mace at the assembling and proroga- tion of Parliament, at the daily opening and adjournment of the house, and on all state occasions when the house is supposed to be present ; '' serves the processes and exe- cutes the orders of the Commons ;' arrests all persons who are ordered to be taken into custody ;^ confines in his cus- who had been speaker from 1874 to 1878, ordered several appointments and after a long controversy, as to his right, which appears in a corres- pondence between himself and the clerk, they were never actually made. The question came up in the House of Commons, and the report of the debate will show what differences of ojiinion existed on the point in dis- pute; but no legislation took place to obviate such difficulties in the future. Can. Hans. [1879], 29-41. Correspondence, Sess. Pap. 1870, No. 17. 1 31 Vict, c. 27, s. 10. The clerk in 1841 took the oath before the vice chancellor then speaker of the council, Leg. Coun. J. [1841], 21. The act of 1867 only provided for the clerk taking the oath before the sjx^aker on the passage of that act. In 1880-1 when a new clerk was appointed, no provision existed for his taking the necessary oaths. The new dork of the privy council had not the power as in the case of his predecessor — his authority being confined to oflicers under the Civil Service Act (sec. 26, chap. 34, Vict. 31). Consequently the clerk of the house had to apply to Lord Lome, who administered the oaths of office and allegiance by virtue of his commission as governor-general (Sess. Pap. 1879, No. 14.) Subsequently the governor-general authorized the clerk of the privy coun- cil to administer such oaths as formerly. -40 Vict., c. 8, s. 1, Dom. Stat. •' Funeral of Sir G. K. Cartier, 187:'>. * May, 26.-) ; 15 Mirror of P. [1840], 720 ; Can. Com. .1. [1S7:;], 12. 70. '•> May, 265 ; 95 E. Com. J. 56-59 ; Can. Com. J. [1873], i:'.") ; l'> Mirror of P., 722, 795. IIC) SPEAKERS AND OFFICERS OF F.OTU JIOISES. tody or elsewhere, all those; who are committed by order of the house ; ^ gives notice of all messages from the Senate ; preserves order in the galleries and other parts of the house.^ He is responsible for the safe-keeping of the mace, furniture and fittings thereof, and for the conduct of the messengers and inferior servants of the Commons.^ He is entitled to a fee of four dollars from all persons who- shall have been committed to his custody.' He has the right to appoint a deputy with the sanction of the speaker who will always report such an appointment to the house.' The serjeant-at-arms being the chief executive officer of the Commons, to whom the warrant of the pre- siding officer is directed, and by whom it is served, it is commonly against him that complaints are instituted, or actions brought for executing the orders of the assembly.*^ IV. Admission of Strangers.— As the serjeant-at-arms main- tains order in the galleries and lobbies of the house, some allusion may very appropriately be made here to the orders and arrangements of the house with reference ta the admission of strangers. The senators have a gallery devoted exclusively to themselves ; the speaker also gives admission to a gallery of his own, and to a few privileged seats in the passages to the right and left of the chair. The public in general is admitted to other galleries by tickets distributed to members by the serjeant-at-arms. Strangers are not obliged to withdraw in the Canadian Commons when a division takes place. In the session of 187G the Commons — and the Senate, also — adopted as a standing 1 113 E. Com. J. 192 ; Leg. Ass. J. [1866], 265. 2 E. Com. Pap. 1847-8, vol. xvi-, p. 45. ^ Rule 107. * Rule 108. * Can. Com. J. [1872], 15. " Cases of Sir Francis Burdett (1810); Mr. Howard (1842-3) ; iMr. Lines (1852), given by May, 181-89. See also Qishing, 134. See also, action against deputy Serjeant of English house, in 1882, by Mr. Bradlaugh^ Times, 12th Jan., and 21st Feb., 1883 ; May, 189. CLERK OF THE CROWN IX CIIAXCERY. 177 order^ the following resolution which was first proposed by Mr. Disraeli," in 1875, in the English House of Com- mons : "If, at any sitting of the Senate (or House), any member shall take notice that strangers are present, the speaker or the chair- man (as the case may be) shall forthwith put the question, ' That strangers be ordered to withdraAV,' without permitting any debate or amendment: Provided that the speaker, or the chairman, may, whenever he thinks proper, order the withdrawal of strangers." The 5th rule also orders : " Any stranger admitted into any part of the house or gallery, who shall misconduct himself, or shall not withdraw when stran- gers are directed to withdraw, while the house or any committee of the whole house, is sitting, shall be taken into custody by the serjeant-at-arms ; and no person so taken into custody is to be discharged without the special order of the house." V. The Clerk of the Crown in Chancery.— The clerk of the crown in chancery is always present at the table of the House of Commons, at the commencement of a new Par- liament, and hands to the clerk the roll, or return book, which contains the list of members elected to serve in the Parliament.'^ In conformity with law, he issues writs for elections,^ makes certificates to the house, in due form, of the return of members, and performs other functions relating to elections.'^ He attends the house with election returns, and amends the same, w^hen so ordered.'" The various proclamations, summoning, proroguing, and dis- solving Parliament, are issued by command out of ' Sen. S. 0. 11 ; Com. S. 0. 6. ■' 130 E. Com. .T. 243 ; 224 E. Hans. (3), 1185 ; 131 E. Com. J. 7l> ; 227 E. Hans. (3), 1420. •'' Can. Com. J. 1867-8, 1879, &c., p. 1. * 37 Vict., c. 10, s. 30 ; 41 Vict., c. 5, 8S. 12-15. * 37 Vict., c. 9, ss. 01, ()4, 05, 0(i, 07, IK;, 132, etc. ; Can. Com. J. [1882], 3-8, &c. " Can. Com. J. [1873], 5 ; lb. [1883], 41, 2(11, 202. 12 178 SPEAKERS AND OFFICERS OF IIOTII HOUSES. Chaucery.' lie is also required to attcnid in the fSeuate chamber at the close of a session, or whenever his Excel- lency, the Grovernor-G-eneral, gives the royal assent to bills, the titles of which it is the duty of this officer to read in the two lang'uag-es." He is api)ointed by the Crown."' VI. The Votes and Journals.— The " Votes and Proceeding's " are printed daily, and distributed in English and French to members and others. The Journals^ are prepared under the direction of the clerk, by an officer of experience, called the clerk of journals. These journals are made up from the original minutes of the clerk, and whenever they differ from the votes and proceedings they alone are held to be correct.' A member may move that an entry in the journals be expunged,'^ and in this way a resolution of a former session has been ordered to be struck out.' When a motion or entry has been ordered to be expunged, no mention of it will appear in the votes."" When any jjerson requires the journals of the Commons as evidence in a court of law, or for any legal purpose, he may either obtain from the journal office a copy of the entries required without the signature of any officer, and swear himself that it is a true copy, or, with the permission of the house, or, during the prorogation, of the speaker, he may secure the attendance of an officer to produce the printed journal, or extracts which he certifies to be true copies ; ^ Can. Com. J. [1883], at commencement of volume. ' Sen. J. [1883], 294. •' Hatsell points out (II. 245 and 252, ??.) that " he is also an officer of the House of Commons," though appointed by the Crown and in attend- ance on the Lords on certain occasions. ■* The journals were first printed in their present large Svo. form [1852-3], 85. '^ Perry & Knapp, 536 ; Pari. Deb. Y., 20. « 5 E. Com. J. 197 ; 33 lb. 509. Sen. J. [1871], 134 ; Debates, 278. ' May, 263 ; 38 E. Com. J. 977, resolution respecting Wilkes. « 17 E. Hans. (3), 1324 ; 137 lb. 202 ; May, 263. THE VOTES AND JOURNALS. 179 or, if necessary, the orig-inal manuscript journal book.' It is provided by the 3rd section of 31 Vict., chap. 22, that " upon any inquiry touching the privileges, immunities, and powers of the Senate and House of Commons, or of any member thereof respectively, any copy of the journals of the Senate or House of Commons, XDrinted or purporting- to be printed, by order of the Senate or House of Com- mons, shall be admitted as evidence of such journals by all courts, justices, and others, v\4thout any proof being given that such copies were so printed." It is also ordered by the 92nd rule of the Commons "that this house doth consent that its journal may be searched by the Senate, in like manner as this house may, according to parliamentary usage, search the journal of the Senate." The daily publication of the journals of the two houses has, however, rendered this rule now almost nugatory. In former times this proceeding was not un frequently resorted to.^ A similar resolution still remains amonsr the rules of the Senate.'^ In case certain documents or records belonging to the 1 May, 261, 262. By Act 8 & 9 Vict., c. 113, s. ?>., Imp. Stat, all copies of the journals of either house, purporting to be printed by the printers to either house, shall be admitted as evidence thereof by all i-ourts, judges, justices and others, without any proof Ijeing given that such copies were 6o printed. It has been decided in English courts that copies of the journals are evidence; Rex r. Gordon (Lord George), 2 Doug., 590; See INIortimer v. McCallan, 6 ; Meeson and Wolsby, 67. But an entry in a printed copy of the journals of the E. House of Commons is not receivable unless it has been comjmred with some original at the house; but an examined cojiy of an entry in the minute book kept by the clerk at the table of the house is receivable. Chubb r. Salomans, 3 Carrington and Kirwan ; Pollock. C. S. U. C, c 32, s. 6, re-enacted by R. S. O., c. 62, s. 29, provides that whenever any book or other document is of so public a nature as to be admissible in evidence on its more production from the I^roper custody a copy or extract therefrom shall be admissible in evidence in the courts, provided it be proved that it is an examined copy or extract, so that it purports to be signed and certified as a true copy or extract by the otiicer to whose custody the original has been eutrusteil. '' Leg. Ass. J. [1856], 747. =* R. 110. 180 SPEAKERS AM) OFFICERS OF nOT/f IIorSES. Commons arc roquircd in an action }>i'iore the courts, the house will give permission to the proper officer to attend with the necessary papers, on a petition having- been first presented to the house, setting forth the facts.' During the prorogation, as previously stated, it is usual to obtain the permission of the speaker. VII. The Official Reports.— It is only within a very recent period that the House of Commons has agreed to employ an efficient staff of official reporters. Previous to 18*74 all attempts in this direction were fruitless," though it had not been unusual to make special arrangements for the reporting of very important debates in the house and its committees.'^ In 1874 a select committee was appointed to report on the best means of obtaining a Canadian Han- sard ; and the result was the adoption of a scheme which was carried out in 1875.* Since then the debates have been reported by a staff of reporters paid by the house, and published in a form similar to that of the English Hansard. The reports are, as a rule, very correct, and a decided improvement upon the partial, imperfect reports in the newspapers to which the members were previously obliged to refer. Any one who has to gather the materials for a political work, or to find precedents of old parliamentary usages and procedure in this country, must see the value of such a correct record as is afforded by the several series known as Hansard's Debates.' 1 136 E. Com. J. 320, 337. 2 Can. Com. J. [1807-8], 33, 48, 60, 68, 399. See also journals of 1870 and 1871. 3 lb. [1867-8], 200. The debates on confederation during 1805 were reported in full by the authority of the legislative assembly. * Ih. [1875], 55, 58, 90, 99, 180, 205, 327, 342, 343 ; lb. [1876], 58, 62, 65, 80, 86, 93, 100, 261 ; lb. [1877], 22, 23, 27, 233, 245. It is always usual at the close of a session to make arrangements for the next. Jour. [1877], 233, 245. * See 224 E. Hans. (3)48, kc, for a report of an interesting discussion on the publicity now given to debates in English Commons, &.c. LIBRARY AXD READIXG ROOMS. 181 The Senate has also an official record similar to that of the House of Commons. In both houses, one of the first proceedings at the opening of the session is to appoint a select committee to supervise the official reports of debates.' The reporters, both French and English, are now perman- ent officers of the Commons.' Vin. Library and Reading Rooms.— The Parliament of Can- ada sui)i)orts at a large expense a valuable library for the use of the members of the two houses. By an act^ passed in the session of 187'1, it is provided that the direction and control of the library shall be vested in the two speakers, assisted by a joint committee of the two houses. This committee* has power, from time to time, to make orders and regulations for the government of the librarv, and for the proper expenditure of moneys to be voted by Parlia- ment for the purchase of books, subject, however, to the approval of the two houses.'' The officers and servants consist of a librarian,'' an assistant librarian, and seA'eral clerks and messengers, who are appointed by the Crown, and hold office during pleasure. Under the rules' the librarian must keep a proper catalogue of the works in the library and report its condition to the house at the com- mencement of every session.** No person is entitled to resort to the library during the session except the gover- 1 Sen. J. [1883], 42, 215 ; Com. J. 20. 2 Com. J. [1880], 268, 281, 34<) ; lb. [1883], 170, 188. 334 Vict, c. 21, J)om. Stat. * Appointed at the commoncoment of every session. * Can. Com. J. [1873], 307, 3G5, 384, recommending increase in salaries — which reconnnendation was adopted by the house. No chanjre-s can be made in the salaries save by resolutions of both houses ; sec. 4 of cited statute. Can. Com. J. [1880], 232, 281. ^ The present librarian, Dr. Alpheus Todd, is a well known autlxjrity on Parliamentary Government. The library now comprises a large and valuable collection of books (some 100,000 volumes) in every department of literature. See librarian's reports everj' session of Parliament. ' Rules 111-118 of Connnons. ** Can. Com. J. [1879], 8, Sess. P., Xo. 10, c*ic. 182 SPKAKKIiS AM) OFFfCEJiS OF liOTlI HOUSES. iior-gviicval, the moml)er8 oi" the privy council, and of the two honses, and the officers of the same, and such other persons as may receive a v^ritten order of admission from the speaker of either hous(\ Members may personally introduce strang-ers to the library during the daytime, but not after the hour of seven o'clock in the evening. The speakers issue cards to members allowing the use of books during the recess to persons outside — two works at a time for three weeks. During the session no books can be taken out except upon the authority of the speaker, or upon receipts given by a member of either house. During the recess access is given to all those who have tickets or cards admitting them to the j)rivileges of the library, or have received permission from the librarian. No member of either house who is not resident at the seat of govern- mient is at liberty to borrow or have in his possession at any one time more than three works, or to retain the same longer than a month. No books of reference or of special cost or value may be removed from the seat of govern- ment under any circumstances. At the first meeting of the joint committee the librarian will report any infrac- tion of the rules. It was formerly the practice for the committee on the library to act as a " Board for the encouragement of liter- ary undertakings" in Canada, and to recommend from time to time that the patronage of the leg'islature should be extended to various native authors. In 1867-8 the committee reported that thereafter the executive govern- ment should themselves assume the responsibility of recommending to Parliament grants of money in aid of useful and valuable publications.^ The committee con- tinue, however, to recommend that aid be given to works relating to constitutional questions and parliamentary practice.^ 1 Can. Com. J. [18(57-8], 251. 2 Ih. [1879], 345, 414 ; Ih. [18S3], 178 ; Sen. J. 122-127. In the tAvo last COMMISSIOXERS OF ISTEIIXAL 1X0X0 MY. 183 Each of the houses has also attached to it a readimr- room, where are filed the leading newspapers oi' the two continents. By the 119th rule : " The clerk is authorized to subscribe for the newspapers pub- lished in the dominion, and for such other papers, British and foreign, as maybe from time to time directed by the speaker." Access to these reading rooms during the session is per- mitted to persons introduced by a member.^ IX. The Commissioners of Internal Economy.— Certain expenses of the legislative assembly of Canada were always regu- lated by a committee of contingencies, appointed at the opening of each session. On its report the salarii's and other contingent expenses were provided for.- The com- mittee was re-appointed in 186t-8, and made several reports which were acted upon ;^ but during the same session, the premier (Sir John Macdonald) brought in a bill respecting the internal economy of the House of Com- mons, which was unanimously passed.' By this act the speaker of the house, and four members of the privy council who are also members of the house, are appointed commissioners to carry out the objects of the statute. The names of the four commissioners must be communicated by message from the governor to the House of Commons in the first week of each session of Parliament,'' — the said commissioners being appointed by the governor in coun- cil. For the x)urposes of this act, the person who shall cases, a vote was put in the estimates, in accordance with the recom- mendation of the committee. Jour. [1883], 433. • Rulesofaduiissionaro posted up in the rea«lin«,' room ui\\n\ Conuuuns under the authority of tlie speaker. ■' Leg. Ass. J. [18(il], 1), 06, 138, 259, 200. •' Can. Com. J. [1807-8], 5, 22, 143, 188, !!».■>, 208. ^ Ih. [18G7-8], 305, 430 ; 30 Vict, c. 27, Dom. Stat. St^o Imp. Stat. .^2 Geo. III., c. 11 ; 9 & 10 Vict., c. 77 ; 12 ct 13 Viet., e. 72 ; 1 TchUI, 405-0. The Canadian Act is based on these imptirial statntes. 5 Can. Com. .1. [1809], 20 ; ///. [1871], 17 ; Ih. [1874], 8 ; //.. [1875], 65 ; lb. [1870], 05 ; [1877], omitted ; lb. [1878], 39 ; //-. [1879], 17, i^c. 184 SPEAKERS AND OEFICERS OF liOTH HOUSES. lill ih(3 olliic of ,s|)("iiki'r ut tlic tiiuc oi' any dissolution of Parliament shall be deemed to be the speaker until a speaker shall be chosen by the new Parliament ; and in the event ol" the death, disability, or absence from Canada of the speaker, during any dissolution or prorogation of Parliament, any three of the commissioners — three being always a quorum — may execute any of the purposes of this act. The speaker is to appoint an accountant, who must give proper security. The accountant has the dis- bursement of all the moneys recjuired to pay members' indemnity, salaries of clerks, officers, and messengers, and -other contingent expenses of the house. His account, •duly audited, is laid before the house soon after the com- mencement of the session.^ The clerk and serjeant-at- arms shall make estimates of the sums required for the service of the house. These estimates shall be submitted to the speaker for his approval, who will prepare and sign an estimate for the necessary expenditures, and transmit the same to the minister of finance for his approval. The clerk of the printing committee must also prepare, under the sanction of that committee, an annual estimate of the sums which will probably be recjuired to be pro- vided by Parliament for the printing services during the year, commencing on the first of July in each year ; and he must transmit the same to the minister of finance for his approval. The commissioners of internal economy now regulate with the speaker all salaries and expenses — in fact, assist the speaker as an advisory or consulting board with respect to the staff of the house. By an act" passed in the session of 18*78, more stringent provision was made for the auditing of the accounts of the public de- partments, and for the reporting thereon to the house of Commons by an auditor-general, but as this act did not appear to include the two houses of Parliament,^ the com- 1 Can. Com. J. [1877], 18 ; lb. [1879], 8. ■•^ 41 Vict., c. 7. See chapter on supply. ^ Auditor General's Rep. 1880, Sess- P., Xo. 5, pp. 15-10. COMMISSIONERS OF INTERNAL ECONOMY. 185 mittee of public accounts recommended the adoption by the house of certain resolutions declaring it advisable to have the accounts of the two houses, as well as of the library, audited in due form.^ The houses subsequently agreed to have their accounts fully audited — the printing and library accounts being included in the resolutions on the subject.^ • 1 Com. Jour. [1880], 119. 2 Sen. J. [1880], 96-7 ; Com. J. 125-6. Auditor General's Rep. for 1881, and subsequent years. CHAPTER IV. PRIVILEGES AND POWERS OF PARLIAMENT, I. Claim of Privileges at commencement of a new Parliament — II. Statutes on Privileges of the Canadian Parliament. — III. Extent of Privileges. — IV. Personal Privileges of Members. — V. Freedom of Speech. — VI. Libellous Reflections on Members collectively or severally. — VII. Proceedings of Select Committees. — VIII. Assaulting, menac- ing, or challenging of Members. — IX. Disobedience to Orders of the House, &c. — X. Attempt to bribe Members. — XI. Privileged Persons not Members. — XII. Punishment of a Contempt of Privileges. — XIII. Power of Commitment. — XIV. Duration of Power of Commitment. XV. Procedure in case of a breach of Privilege. — XVI. Suspension and Expulsion of Members. — XVII. Power to Summon and Examine Wit- nesses — Procedure in such cases. — XVIII. Privileges of Provincial Leg- islatures. I. Claim of Privileges at commencement of a new Parliament.— At the commencement of every new Parliament the speaker will, immediately after his election by the House of Commons, on presenting himself before the governor- general in the Senate chamber, proceed to claim on behalf of the Commons : " All their undoubted rights and privileges, esi^ecially that they may have freedom of speech in theif debates, access to his Excellency's person at all seasonable times, and that then* pro- ceedings may receive from his Excellenc}' the most favourable interpretation." ^ 1 Can. Com. J. (1867-8), 3 ; 1873, 1874, 1879 and 1883. This formula has varied a little since 1792 [Low. Can. J. (1792), 16 ; Upp. Can. J. p. 5 ; Leg. Ass. J. (1841), 3.] See, however, on this point : " Are Legislatures Parlia- ments?" By F. Taylor (pp. 65-8), who points out what he considers material differences in the fi irniula. In the Euiilish Parliament it is still STATUTES ON PRIVTLEGES. 187 If a sx)eaker should be elected during- a Parliament, it will not be necessary that he should renew the claim lor privileges, as these, having been demanded at the begin- ning of a Parliament, continue in force during its legal existence.^ II. Statutes on Privileges of the Canadian Parhament.— The 18th section of the British North America Act, 18G7, provides : "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 the Parliament of Canada, but so that the same shall never exceed those at the passing of this act held, enjoyed, and exeicised by the Commons House of Parlia- ment of the United Kingdom of G-reat Britain and Ireland, and by the members thereof" Some years later doubts haA'"ing arisen as to the powers enjoyed under the foregoing section by the Parliament of Canada,^ an imperial statute repealed the section and sub- stituted the following : "The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and House of Commons, and l)y the members thereof respectively, shall be such as are from time to time defined by act of the Parliament of Canada, but so that any act of the Parliament of Canada defining such privileges, im- munities, and powers, shall not confer any privileges, immunities, or powers exceeding those at the passing ot such act, held, enjoyed, usual to (loniaiid freedom fnim arrest of their persons and servants ; E. Com. J. for 1852, 18(i!) and 1874. May, p. G!>,?iu/.', explains that tlie claim for servants Avas still retained, when tlie (inestlon was considered in IS.'iS, as it was d()ul)tful wliethcr certain priviloi^es mij^ht not attacli to tlie ser- vants of members, in attendanco at the house. Tlio oHii-ers and servants of the house are still i)rivileged within its precincts. 2 Hatseli, 22') ; lOS E. Com. J. 7. ^ See chapter VI. - See chapter on select committeefi (witnesses) where the dilliculty, rendering new legislation necessary, is explained at length. 188 1>0]\ 'KIIS A NT) PRIVILEGES. uiid exoi'ciscd \)y i\w, Commons House of l':ii liameiit of" the Unilt'il Kiiiij;(lom (^f (rrcat, Bi'itiiin and lr(;lanil, and Ijy (he mem- bers ihcreot'.'' ' On tho assembling of the first Parliament of the domin- ion in 1867-8, an act was passed " to deiinethe privileges, immunities, and powers of the Senate and House of Com- mons, and to give summary protection to persons employed in the publication of parliamentary papers."' Under this act the two houses respectively and their members shall exercise the like privileges as, at the time of the passing of the British North America Act, 1867, were enjoyed by the Commons House of Grreat Britain, so far as the same are consistent with the said act. These privileges are deemed j^art of the general and public law of Canada, and it is not necessary to plead the same, but they shall be noticed judicially in the courts. Any copy of the journals, printed by order of the two houses, shall be admitted as sufficient evidence in any inquiry as to the privileges of Parliament. Provision is also made for protection to persons publishing parliamentary papers and reports." m. Extent of Privileges.— It is quite obvious that a legis- lative assembly would be entirely unable to discharge its functions with efficiency unless it had the power to pun- ish offenders, to impose disciplinary regulations upon its members, to enforce obedience to its commands, and to prevent any interference with its deliberations and pro- ceedings. In the early times of parliamentary govern- ment in England, the extent of the privileges of Parlia- ment was vaguely defined, but now all privileges essential to enable each branch of the legislature to per- form its appropriate constitutional functions, are at length ^ 38-39 Vict. c. 38, Imp. Stat., given in full at end of vol. containing rules and orders, and also in Dominion Statutes for 1870. 2 31 Yict. c. 23, Dom. Stat. EXTENT OF PRH^ILEGES. 189 as well recoguized aud established and as acenratcly defined, partly by usage, partly by law, and partly by the admission of co-ordinate authorities, as are any of the rules and principles of the common law.' Both houses now declare what cases, by the law and custom of Parlia- ment, are breaches of privilege, and punish the offenders by censure or commitment, in the same manner as courts of justice punish for contempt.'- Whatever Parliament has constantly declared to be a privilege is the sole evi- dence of its being part of the ancient law of Parliament. At the same time it has been clearly laid down by the highest authorities that, although either house may expound the law of Parliament, and vindicate its own privileges, it is agreed that no new privilege can be created.'^ A breach of privilege committed in one Parlia- ment may be considered and dealt with in another Parlia- ment.* So either house may punish in one session offences that have been committed in another. ' With these general remarks on the privileges of Parlia- ment, we may now proceed to give the following summary of their character and extent, as we gather them from the English authorities, which are our only correct guide on such a subject. IV. Personal Privileges of Members.— Members are protected in their attendance on Parliament, and guaranteed against all restraint and intimidation in the discharge of their duties, and it is a general principle of English parliamentary law that "at the moment of the execution of the indenture ' Gushing, 217. - May, 73 ; 8 Groy's D. 232. •' :\Iay, 72. 14 E. Com. J. 555, 5(50. * 31 Pari. Hist. 198. 1 Hatsoll, 184. 1 E. Com. J. 025 ; 2 ///. iVi ; 13 //-. 735. May, 109. '" May, 110. Resolution of 4th and 14th April, 1707 ; 15 E. Com. J. 37(5, 386. 21 Lord's J. 189. 22 E. Com. J. 210. 249 E. Hans. (3), 989. Can. Com. J. (1880, l.st sess.), 24,58-9. Case of J. A. Macdont^ll for usin^' offen- sive expressions in a previous session against Mr. Huntington. 190 row I'JRS A ND PRIVILEGES. (or return) the existence of the member, as a member of Parliament, commences to all intents and purposes." ' This privilcg'o continues in full for(;e, whether a member is absent with or without leave of the assembly, and only ceases when the member resigns, accepts an office of emolument, or is expelled." The privilege has been always held to protect members from arrest and imprison- ment under civil process, whether the suit be at the action of an individual or of the public;'^ but "it is not claim- able for any indictable offence." ^ This privilege of free- dom from arrest on civil process has been allowed for forty days before and after the meeting of Parliament. It con- tinues during the w^hole session and is enjoyed even after a dissolution' for a reasonable and convenient time for return- ^ 1 Hatsell, 166 ; 2 lb. 75, note. Coke says : " Every man is obliged at his peril to take notice, who are members of either house, returned of record." Fourth Inst. 24. See also Fortnam r. Lord Rokeby, Taunt Rep. IV. 668. '^ Gushing, 226. ^ Lord Brougham, Welleysley's case, Russell & Mylnes' R. II. 673, Westmeath v. Westmeath, Law .1. IX. (chancery), 179. Hale on P. 16,30. * Committee of R, Sess. P. (1831), 114 ; also 2 E. Com. J. 261 ; 4 Lord's J. 369 ; 11 E. Com. J. 784 ; 29 Ih. 689. 15 Pari. Hist. 1362-1378. The most memorable case is that of Lord Cochrane (afterwards Earl of Dun- donald) arrested in the house, whilst not in session. It was considered that the circumstances were just the same as if he had been arrested on his way down to the house. 30 E. Hans. (1 ), 336-7. A member may not be committed for contempt of Court, except it is of a quasi criminal nature — not part of a civil process. Ca.se of Fortescue Harrison, 1880 ; [May, 160. '" Maj", 138-43. Barnardo r. Mordaunt, 1 Lord Ken, 125 ; 1 Dwarris, 101. Pitt's case, 1 Strange, 985, K. B. Cases, tempore Hardwicke, 28. In case of Mr. Fortescue Harrison, 1880, Yice-Chancellor Hall held that the privi- lege extended to 40 days after a prorogation or dissolution. Times, 16th April, 1880 ; May, 160. An act of the Ontario legislature continues it for 20 days before and after. Rev. Stat., chap. 12, s. 45, sub-s. 11. In the case of the Queen v. Gamble & Boulton (9 U. C, Q. B. 546), it was held, that a member of the Provincial Parliament was privileged from arrest in ci%'il cases, and that the i>e.riod for which the privilege lasted was the same a6 in England. The judge, in delivering the opinion of the court, said: " And while, apart from our own statutes and judicial decisions, I see nothing in the decisions in Beaumont v. BaiTett et al , or the more recent EXTENT OF PRIVILEGES. 191 ing home." Members may, however, be coerced by every legal process except the attachment of their bodies.' The privileges of exemption from serving as jurors, or attending as witnesses, during a session of Parliament, are well established,- and precedents are found of the house having punished parties who have served subpoenas upon members.'' Though members cannot be compelled to attend as jurors,^ yet the house may give leave of absence to members to attend elsewhere as witnesses, when it is shown that the public interests will not con- sequently sufFer."^ The exemption has been held good in the case of an adjournment." The English Juries' Act, 1870, exempts peers and members of Parliament from serving as jurors without reference to the sitting of the houses.'' V. Freedom of Speech.— Among the most important privi- leges of a legislature is the enjoyment of the most perfect freedom of speech — a privilege long recognized and con- firmed as part of the law of the land in G-reat Britain and case of Kielly v. Carson, at variance with the assertion and enjoyment of this privilege by our own legislature, I am confirmed in my opinion of its existence by our general adoption of the law of England, by the provision for suits against privileged parties contained in our statute of 1822 ; and in the statutes of Canada, 12 Vict, c. 63, s. s. 22 and 23 ; 13 t*!: 14 Vict., c. 55, s. 96, and by the uniform decisions of our courts since the former act, and also, as 1 am informed, before it." 1 May, 147 ; 10 Geo. III., c. 50 ; 45 Geo. III., c. 124 ; 47 Goo. III., Sess. 2, c. 40, Imp. Stat. •^ 1 Hatsell, 112, 118, 171, 173 ; D'Ewcs, 637 ; 1 Dwarris, 103, 105 ; Can. Hans. (1877), 1540-1. => 3 Lord's J. 630 ; 9 E. Com. J. 339 ; 1 Hatsell, 97, 169, 175. * 14 E. Hans. (N.S.), 569, 648 ; 81 E. Com. J. 82, 87. " No momlwr sliall 1)6 withdrawn from his attendance on his duty on Parliament to attend on any other court." Rep. of committee of P. 5 71 E. Com. J. 110; 82 lb. 306, 371. E. Hans. D., 1st Manli, 1S44, Earl of Devon. «21E. Hans. (N.S.), 1770. 'May, 151. 102 POWERS AND J'RIVILEGES. all her dependencies.' Consequently, this privilege secures to every member an immunity from prosecutions for anything said or done by him, as a representative, in the exercise of the functions of his office, whether it be in the house itself or in one of its committees." But if a member should proceed himself to publish his speech, his printed statement will be regarded as a separate publica- tion unconnected with any proceedings in Parliament ; but a fair and faithful report of the whole debate will not be actionable.^ VI. Libellous reflections on members collectively or severally.— Any scandalous and libellous reilection on the proceedings of the house is a high breach of the privileges of Parlia- ment.^ So, libels or reflections upon members individually have also been considered as breaches of privilege which may be censured or punished by the house ; but it is dis- tinctly laid down by all the authorities : " To constitute a breach of privilege such libels must concern the character or conduct of members in that capacity. Asper- sions upon the conduct of members as magistrates or officers, in the army or navy, or as counsel, or employers of labour, or in private life, are within the cognizance of the courts, and are not tit subjects for complaints to the House of Commons."' ^ " The freedom of speech and debates and proceedings in Parliament ought not to be impeached or questioned, in any court or place out of Parliament, 9tla article, Bill of Rights." See May, chap, iv.; 2 E. Com. J. 203 ; 9 Ih. 25 ; 12 Lord's J. 166; lb. 223. Cases of Sir John Eliot, Denzil Hollis, and Benjamin A'alentine. 5 Charles I., 1 Hallam Const. Hist., 371 ; 2 Ih. 10. 2 Cushing, 243. ^ May, 125. The lord chief justice, in case of Wason v. AValter, 21st Dec, 1867, laid it down very distinctly that, '' if a member publishes his own speech, reflecting upon the character of another person, and omits to publish the rest of the debate, the publication would not be fair, and so would not be privileged." See also 1 Esp. N. P. C. 228 ; 1 M. and S. 278. * Ees. of 21st May, 1790 ; 45 E. Com. J. 508. See 29 Lord's J. 16, 15Parl. Hist. 779 ; 60 E. Com. J. 113 ; 65 lb. 252. Case of Mr. O'Connell, 93 E. Com. J. 307, 312, 316 ; 41 E. Hans. (3), 99, 207, or Mirror of P. (1838), vol. 3, pp. 2157, 2219, 2263. * May, 100. Cuehing, 252. For recent English cases of libels on mem- EXTEXT OF PEIVJLEGES. 193 Very few cases can be found in the Canadian journals since 1867^ of the House of Commons or its members taking formal proceedings with respect to attacks in the newspapers on their parliamentary conduct. The follow- ing are the only instances : In 1873 Mr. Elie Tass^, one of the translators in the service of the house, was brought to the bar, and examined as to his connec- tion with an article in the Courrier d' Ouatouais, reflecting on cer- tain members. He admitted he was the writer, and subsequently the speaker infoi-med the house that Mr. Tass^ was dismissed.- In the same session the house resolved that an article in the St. John Freeman, of which Mr. Anglin, a member, was editor, was a libel on the house and certain members thereof; but no ulterior proceedings were taken as in the O'Connell case of 1838.^ Vn. Proceedings of Select Committees.— It is an old order of Parliament that " the evidence taken by any select com- mittee of this house, and the documents XDresented to such committee, and which have not been reported to the bers individually and collectively, see: Carlisle Examiner, rejecting on chairman of a committee, 150 E. Hans. (3), 1022, lOGG, 1198, 1313, 1318, 1404. Fall Mall Gazette, reflecting on Irish members, 215 E. Hans. 530- 542. Mr. Lopes, member for Frome, reflecting on Irish members ; (former precedents are here cited,) 222 E. Hans. (3), 313-335. ]Mr. Evelyn Ashley, meniber for Poole, attacking Dr. Kenealey. Mr. Disraeli and others pointed out tliat the words complained of were not spoken in the house, and that Dr. K. was not at the time a member, and consequently could not raise a question of privilege. 222 E. Hans. (3), 1186-1204. ' But many cases will be found in the old legislative records of Canada : Isaac Todd and E. Edwards, Lower Can. J. (1805), UO, 64, 118, 118, 120, 15(3 ; Mr. Cary, of (Quebec Mercunj, lb. 82, 88, !>4 ; Ariel Bowman and E. ^'. Sparhawk, /6. (1823), 54, 89; K. Taylor (1832-3), 500, 501, 524,528; W. Lyon Mackenzie, Upp. Can. J. (1832) 33, 34, 35. - Can. Com. J. (1873), 133-4 ; Pari. Deb. 66-67. =*Can. Com. J. (1873), 167-169; Pari. Deb. 80-84. An amendment was proposed that it was not advisable to interfere with the freedom of the press, but it was negatived. In the session of 1878 a Mr. Preston, one of the sessional clerks, was suspended for writing a letter in a nowspaiior reflecting on Mr. AVhite, of E. Hastings ; the attention of tlie sjR^aker was privately directed to the mattt^r, and Iio acted inmiediatoly aftt»r making the necessary ini^uiry. Can. Hans. (1878), 2369. 13 IIU POWERS AM> PRIVILEGES:. house, ought not to be i)ubli.shed by uny member of such vommittee or by auy other person." ' As committees are generally open to the press and the public, the house is now rarely disposed to press the foregoing rule.- It is always within the power of a com- mittee to conduct its proceedings with closed doors, and in that way prevent the hasty publication of its proceed- ings until thev are formally reported to the house.'^ Vin. The assaulting, thi-eatening or challenging of Members.— The assaulting, menacing, or insulting of any member in his coming to or going from the house, or upon account of his behaviour in Parliament, is a high infringement of the privileges of the house — in the words of the English resolution " a most outrageous and dangerous violation of the rights of Parliament and a high crime and misdemeanour." * It has also been resolved that "to endeavour to compel members by force to declare themselves in favour of or 1 21st April, 1837, E. Com. J. ^ Times and Daily Neivs, 1877, for publishing proceedings before select ■committee on foreign loans. INIr. Disraeli and others took the ground that, though a breach of pri^•ile•ge had be«n committed, yet it was inadvis- able to act rigidly in the matter, since the printers appeared to have acted •only in the discharge of their duties in printing the proceedings of a committee which were open to the pubhc. The order for the attendance ■of the printers was subsequently discharged. 223 E. Hans. (3), 787, 790 793, 794, 795, 810, 1114, 1130, 1224. ' In the English order adopted in December, 1882, for the appointment of two standing committees, it is provided that " strangers shall be ad- mitted, except when the committee shall order them to withdraw." S. O. xxii. *Ees. of April 12th, 1733; 22 E. Com. J. 115; 38 lb. 535, 537 ; 79 Ih. 483. 3Ir. L're, a Canadian reporter, was reprimanded in 1850 by the speaker, for using rude and offensive language to ]Mr. Christie, pp. 160, 164, Leg. Ass. J. In 1879 Mr. J. A. MacdoneU insulted Mr. Huntington, and attention having been called to the facts iu the house, he was ordered to attend at the bar, but in consequence of the lateness of the session the order could not be serv-ed. Can. Com. J. pp. 423, 436 ; Hans, pp. 1980-2 ; 2044. The house, however, in the following session, dealt with the matter. Can. Hans. (1880), pp. 44, 82 ; Jour. 24, 58-9. DISOBEDIENCE TO ORDERS. 195 against any proposition then depending or expected to be brought before the house," is a breach of priyileGrc which should be severely punished.' The terms of these resolutions are intended to prevent any outside interference whatever with members in the ■discharge of their duties.- They include challens-es to members.'* IX. Disobedience to orders of House —The house has also frequently decided that the following matters fall within ■the category of breaches of privilege : 1. Disobedience to, or evasion of, any of the orders or rules which are made for the convenience or efficiency of the proceedings of the house.^ 2. Tampering with a witness in regard to the evidence to be given by him before the house or any committee of the house.'' 3. Assault or interference with officers of the house, •while in execution of their duty.'' 4. All attempts to influence the decision of a committee on a bill or other matter before it for consideration." 1 Ees. of June 1st, 1780. '^ 213 E. Hans. (3), 543, 560. In this case a letter was written by a public official calling on a member to remain in the house on the third reading of a particular bill; but it was shown that, though the letter was most objectionable, it did not really refer to members, but to ]X)rsons outside ; and consequently no further action was taken after a letter in apology had been read from the person wliose conduct was arraignexJ. ■' 38 E. Com. J. 535, 537 ; 74 E. Hans. (3), 280. Can. Leg. Ass. J. (1S54-5 j, 352-353. *4 Lords' J. 247. 87 E. Com. J. 360 ; 88 Ih. 218 ; 90 lb. 504 ; Ul lb. 33.S ; 92 lb. 282. 104 E. Hans. (3), 452 ; 249 lb. 989. ^Sess. O. ; May, 104. 12 E. Hans. (1), 401. In this case a clergyman was ordered to be immediately taken into custody for tampering with a witness in an inquiry before committee of the whole touching the conduct of the Duke of York. Also, 146 lb. (3) 97. «19 E. Com. J. 366, 370 ; 20 lb. 185. rx)W. Can. .L (1823-4), 113-4. " In 1879 Mr. C. E. Grissell and Mr. J. Saudi lands Ward were ordorotl to attend at the bar for attempting to influence the dwision of the com- mittee on the Tower high level bridge (Metropolis) Ijill in the iuterost of 19f) POWERS AM) PRIVILEGES. X. Attempts to bribe Members.-Ii is one oi' the standing orders oi" the House oi" Commons oi' Canada as well as of England : " That the offer of any money or otlicr advantage to any member of tills house for the promoting of any matter wliatsoever, depending or to be transacted in Parliament, is a high crime and misdemeanour, and tends to the subversion of the constitution."^ XI. Privileged Persons not Members.— Both houses will always extend their protection and privilege to all persons who are in attendance in obedience to the orders of the house, or are engaged in business before the house or some of its committees." In many cases the house has given orders that such persons having been arrested by process from the courts of law, should be delivered out of custody.^ Precedents are found for the granting of this protection to persons attending to prefer or prosecute a private bill or other business in Parliament ; ^ or to the solicitor of a party ; ^ or to prosecute a petition ; ^ or to claim a seat as a member ; " or attending as a witness before the certain parties from whom they expected to receive some pecuniary- advantages for their services. Mr. Ward was ordered into custody and subsequently released ; Mr. Griesell evaded the order, but was afterwards arrested and imprisoned in Newgate. See E. Hans, vols., 247, 248, 249 for 1879. ' English Ees. of 2nd May, 1695. The English Commons have always- severely punished members for receiving bribes ; 9 E. Com. J. 24 ; 11 Ih. 274; 5 Pari. Hist. 880-911, cases of Sir John Trevor, speaker, and others. In 1873 a Mr. John Heney was brought to the bar of the Canadian house on a charge of ottering ISlr. Cunningham, of Marquette, a sum of money for his vote ; but no proceedings were taken, as Parliament was suddenly prorogued. Can. Com. J. 1873, 2nd sess.. 135-9. •-' 1 Lex. P. 380 ; 1 Hatsell, 9, 11, 172 ; 1 E. Com. J. 5025 ; 2 Ih. 107 ; 9 Ih. 02 ; 13 Ih. 521 ; 18 Ih. 371 ; 21 J ^. 247 ; 74 Ih. 223. 4 Lords' J. 143-1. ^ 48 E. Com. J. 424. '1 E. Com. J. 702, 700, 921, 924 ; 20 Ih. 797 ; 27 Ih. 447, 537. 88 Lords' J. 189 ; 92 Ih. 75, 70. »9E. Com. J. 472; 24/6.170. 6 2 E. Com. J. 72. '3976.83; 48/6. 420. CONTEMPT AND COMMITMENT. 19Y house or a committee ; ' witnesses as well as counsel have been protected from actions of law for what they may- have stated before committees.^ It is also provided in the statute defining the privileges of the two houses of the Canadian Parliament that, in case a person is prosecuted for x>u])lishing any parliamentary report or paper, either by himself or by his servant, pro- ceedings can be stayed by his laying before the court, a certificate from the speaker or clerk of either house, as the case may be, stating that such report or paper was published under the authority of Parliament. It is also enacted that the defendant may, in a civil or criminal proceeding for printing an extract from a parliamentary paper or report, give in evidence, under the general issue or denial, such report, and show that the extract was published bond fide, and without malice ; and if such shall be the opinion of the jury, a verdict of not guilty may be entered for the defendant.'* XII. Punishment of a Contempt of the Privileges of Parliament. — A contempt of the privileges of the house will be pun- ished according to its character. In some cases the house will not deem it necessary to proceed beyond an admoni- tion or a reprimand, but occasions may arise hereafter, as in the past, when it will be found necessary to resort to the extreme measure of imprisonment.^ 1 1 E. Com. J. 8()3 ; 8 Ih. 525 ; 9 //). 20, 366 ; 12 Ih. 304. ■^ 11 E. Com. J. 5i)l, 613 ; 100 lb. 672, 680, 697 ; 81 E. Hans. (3), 1436 ; 82 Ih. (3), 431, 494. •'Tlieso provisions are snl)stanlially those of 3 ct 4 Vict., c. 9, Imp. Stat., which were rendered necessary by the famous case of St(«!l-. Han- sard, out of which a conflict arose l)et\veen the courts and I'ariiamiHit a.s to the privileyres of the latter. This act, says May, " removeil one ;.'ri>nnd for disputing the authority of P., but has left tiie general question of privi- lege and jurisdiction in the same uncertain state as before." See chap, f), May, for full details as to cases of conflict l)et\veeix courts and I'arlia- ment in matters of privilege. ^For latest case of imprisonment in Newgate, 249 V.. Hans (3), 989. 198 POWERS AND PIIIVILEGKS. Xin. Power of Commitment— By the decisions ol' the Jiing- lish courts of law, it is clearly established that the power of commitment for contempt is incident to every court of justice, and more especially it belongs to the high court of Parliament ;' — that it is incompetent for other courts to question the privileges of the houses of Parliament on a commitment for an offence which they have adjudged to be a contempt of those privileges ; — that they cannot inquire into the form of the commitment, even supposing it to be open to objection on the ground of informality ;- — that when the houses adjudge anything to be a contempt or a breach of privilege, " their adjudication is a convic- tion, and their conviction, in consequence, an execution."^ Sir Erskine May, having cited the various authorities on this point, lays down the following broad principle : " The power of commitment, with all the authority which can be given by law, being established, it becomes the keystone of parliamentary privilege and contempt ; and if the warrant recite that the person to be arrested has been guilty of a breach of privilege, the courts of law cannot inquire into the grounds of the judgment, but must leave him to suffer the punishment awarded by the Commons House of Parliament by which he stands com- mitted.'"' Yery many cases are recorded in the journals of the legislatures of Canada, previous to 186Y, of the exercise by those legislatures of the extreme power of commitment for breaches of i3rivilege.^ Though doubts have always ' Ellenlxtrough, C. J., Burdett r. Abbott, 1-1 East 1. Can. Sup. Court E., vol. ii., p. 177. 2 Lord C. J. Abbott, re Hobhouse, 2 Chit. R. 207. ^'Grey, C. J., in Brass Crosby's case, 19 Howell, St. Tr. ll;]7 ; 3 Wils. 188, 203. * May, 82. It has eveii been decided that a pei'son so committed cannot be committed to bail. 1 Wils. 200, Wright, J., in jNIurray's case. 5 Low. Can. J. (1817), 462, 476, 486,502, Mr. Monk, for contempt. lb. (1833), 528, Mr. Taylor, member, committed for attack on Speaker Papi- neau, in Quebec Mercury. lb. (1835), 24, 29, 30, 56, Mr. Jessopp, collector of customs, for not presenting certain returns on order of the house. Leg. COMMITMEXT FOR CONTEMPT. 199 been entertained as to the powers of those legishitiires in this particular, they never failed, when the occasion arose, to assert what they believed to be privileges incident to a legislative assembly. No cases have occurred since 186Y, of commitment by the dominion Parliament for contempt. The privileges, however, of the dominion houses are expressly provided for in the Act of Union, and it is always possible for them to vindicate their rights in the most ample manner. XIV. Duration of Power of Commitnieut.— All persons who may be in the custody of the serjeant-at-arms, or confined in goal under the orders of the house, must be released as soon as Parliament has been duly prorogued. Though the party should deserve the severest penalties, yet " his offence being committed the day before the prorogation, if the house ordered his imprisonment but for a week, every court would be bound to discharge him by habeas corpus.'''' ^ XV. Procedure in case of a Breach of Privilege.— The house will never proceed summarily against a person charged with an offence against its authority or privileges, but will give him an opportunity of defending himself.^ Ass. J. (184()), 119, 150, 15()-7, AV. Horton ami T. D. Warron. for iiut n'tiirii- intr a commission issued by house. Il>. (184D) 14S, 282, 2!»2, .lolm Miller, rcMurning otlicor, for evadinirsummons of house. See inde.x of journals of 18.54-5, under head of letrislative assembly, for cases of return ing oliicors com- mitted to gaol for misconduct at certain elections. Also, I^'.g. Ass. J. (1858), 439, 440, 441, 444, 446,488, 505, 940, 945, returning officers guilty of frauds. Leg. Ass. J. (1866), 257-265, Mr. Lajoie assaulting ^Ir. Dorion. A motion to commit him was voted down. ' Lord Penman, in giving judgment in Stockdale r.«. Hansard. is:'9 (283), p. 142, shorthand writers' notes. But a [)crson, not sullii-iently jninislied one session, may be again committed in the next until the iiouso is satis- fied. 249 E. Hans. (3), 989. '^ A person must be first examined to sec whetlicr lin lias been guilty of contempt before ordering him into custody. 14<> K. Hans. (3), 101-2 ; 247 lb. 1875. 200 POWERS AND PRIVILEGES. Whenever a (^oiii|)l:iiiil is made against a person who is not a membor, the; usual course is to make a motion that the ofF(Midiiig- party or parties do attend at the bar of the house at a fixed time/ When the order of the day has been read at the appointed time, and the serjeant-at-arms has informed the house that the person summoned is in attendance," he will be called in and examined as to the offence of which he is accused. Then he will be directed to withdraw, and the house will consider whether he has excused himself or whether he is guilty of the offence. If the house come to the latter conclusion, he will be ■declared guilty of a breach of the privileges of the house, and ordered into custody.-^ Or if it be shown that he is innocent he will be discharged from further attendance.* The accused may be heard by counsel if the house think fit to grant his prayer.'"' An offender may be discharged at any time upon causing* a petition, expressing proper contrition for his offence, to be presented.'' Sometimes ^ 64 E. Com. J. 213 ; 82 Ih. 395, 399 ; 113 Ih. 189 ; 129 lb. 181. 213 E. Hans. '(3), 1543 ; 248 Ih. 971, 1100 ; May, 107. Can. Com. J. (1873), 133 ; lb. (1879), 423. Or in very aggravated cases he has been immediately ordered into the custody of the serjeant-at-arms. Can. Com. J. (1873) 135, 139, 2nd sess. But it is more regular to examine him and find wliether he is guilty of an offence before taking him into custody. 146 E. Hans. (3), 103-4- - If the Serjeant report that the person cannot be found, the speaker will be instructed to issue his warrant. Can. Com. J. (1873), 133. The Serjeant or his deputy will serve the order on the person whose attend- ance is reciuired, if he be within reach ; otherwise, it may be sent by post to the residence of the individual; case of Mr. Macdonell, Can. Jour. (1879) 436. Also, Mirror of P. (1840), 720, case of Mr. Howard. If it be found he is wilfully evading the order of the house, he will be sent for in custody of the Serjeant. Mr. Howard, 95 E. Com. J. 30. Mirror of P. (1840), 722, vol. XV. Also, 21 E. Com. J. 705 ; May, 186. 146 E. Hans. (3), 98. Case of Mr. Grissell in 1879, 248 E. Hans. (3), 1163. * 113 E. Com. J. 192. 150 E. Hans. (3), 1066-1069. m3E. Com. J. 193. ' Leg. Ass. J. (1852-3), 216, 509, 580. Ih. (1854-5), 631, 639. Xo re-cord of counsel's remarks ai)pears in the journals. Leg. Ass. J. (1855), 677, &c. « Leg. Ass. J. (1858), 945. 113 E. Com. J. 202-3. 248 E. Hans. (3), 1536, 1632. SUSPENSION AND EXPULSION OF MEMBERS. lOI the house may deem it most expedient to refer a com- plaint to a select committee, and to stop all proceedinii's until it make a report.' If the examination of a person before the house cannot be terminated at one sitting-, he will be ordered to attend at a future time, or he will be continued in the custody of the serjeant-at-arms.^ "Wh(^n the offence is contained in a newspaper, the lat- ter must be brought up and read at the table, and then the member complaining- must conclude with a motion founded on the allegation that he has brought forward.'^ When a member has reason to complain of a speech made by another member outside the house, he must In-ing up the paper, but he should previously, as a matter of cour- tesy, give notice of his intention to the member com- plained of, and ask him formally whether the re^^ort is correct, before proceeding further in the matter.* XVI. Suspension and Expulsion of Members.— The right of a legislative body to suspend or expel a member for what it is sufficient cause in its own judgment is undoubted. Such a power is absolutely necessar}^ to the conservation of the dignity and usefulness of a legislative body. In a previous chapter^ cases have been cited of the exercise of the power of expulsion by the Parliament of the dominion as 1 112 E. Com. J. 232. 146 E. Hans. (3), 99. The reference to a committee appears to be in oases where there is need of more inquiry, in order to reconcile conflicting statements. It is no longer the practice to refer breaches of privilege to committee of privileges, except the house think it necessary, ]May, 106. In 1879 a question of privilege (^Ie,ssrs. AVard and Grissell for attempting to interfere witii a select committo^>) wa.s referred on the ground that there were essential facts \vhich it wasdi^ira- ble for the house to know before dealing at once witli the matter, but strong objections were even then taken as to the nece.'^sity or expediency of such a course. 247 E. Hans. (3), 1878-1886. ^Can. Com. J. (1873), 139, 2nd session. But in this ca.se, it would have been sufficient to have ordered him to attend, as no examination had boon made into the charge- »113 E. Com. J. 189. 184 E. Hans. (3), 16(>7. 2l!i fh. 3'.'4-ti. ^74 E. Hans. (3), 139 ; 222 //-. 1186 ; 236 ///. .")42. ^Chap. II., s. 13. 202 POWERS AM > l']lIVILFj:i:s. well as ])y thi^ old Icgislaiuri's ol" CaiiiKLi, and conse- quently it is only necessary hero to mak(; this brief reference to the subject. The minor punishment of suspension m now generally reserved in the English house for aggra- vated cases of contempt of the authority of the chair and of wilful obstruction of the public business.' XVn. Power to summon and examine witnesses.— Procedure.— The Senate and House of Commons have undoubtedly the right, inherent in them as legislative bodies, to summon and compel the attendance of all persons, within the limits of their jurisdiction, as witnesses, and to order them, to bring with them such papers and records as may be required for the purposes of an inquiry. When the evidence of any person is shown to be mater- ial in a matter under consideration of the house, or a com- mittee of the whole, a member will move that an order be made for his attendance at the bar on a certain day. In the Senate, as in the Lords, the order should be signed by the clerk of the parliaments." In the Commons the order is signed by the clerk of the house and served by the Serjeant or his deputy when the witness is Avithin or near the city of Ottawa ; if not, he will be informed by post or telegraph, or in special cases by a messenger." When the order of the day for the attendance of a wit- ness has been read in due form, he will be called to the bar and examined in accordance with prescribed forms.* When the witness appears at the bar' of the house, each question will be written out and handed to the speaker, who, strictly speaking, should read it to the wit- ' Chapter on debate, s. xxv. ■^ May, 472. ■' Same practice in the Enghsh House of Commons. Ih. 472-3. * Can. Com. J. (1874), 8, 10, 13, 14, 1 7, 18, 32, 37, 38. Pari. Debates in Mail and Times, 1873, p. 38, show the procedure on such occasions. ^Members are examined in their places (Leg. Ass. J. 1847, p. 4); the speaker in tlie chair ; lb. p. (>. The bar is always down during the examination of a witness not a member. 2 E. Com. J. 2(> ; 2 Hatsell, 140. WITNESSES. 208 ness ; l3nt practically it is the custom to allow on certain occasions a considerable degree of latitude for the con- venience of the house, and questions put directly by mem- bers have been supposed to be put through the speaker.' When the witness has received the question, he should read it over and answer it succinctly and audibly. One of the clerks assistant, who is provided with a seat at the bar, will take down the answer and read it aloud to the house. In case a member objects to a question on any ground, he must state his objection, and the speaker will decide."- If the evidence of a witness cannot be completed in one day, his- further attendance will be postponed till a future time, and he will be ordered to attend accordingly."* All the evidence given by a witness at the bar is printed in the journals of the house with the names of the mem- bers asking the questions.' If a witness should be in custody of any officer of the law, the speaker will be ordered to issue his warranty which will direct the said officer to bring the witness before the house at the time required.' A witness who neglects or refuses to obey the order of the house will be sent for in custody of the serjeant-at-arms.'' Any person refusing to obey this or any other order may be declared guilty of a contempt of the house and brought before it in custody that he may be dealt with according to its will and pleasure." "Witnesses who refuse to answer proper questions will be admonished and ordered to answer them.^ If they refuse, they may be committed until they express their willingness to answer." » 146 E. Hans. (3), 97. See Sen. Hans. [ISSi'], 1-7. ■'Can. Com. J. (1874), 10-13 ; 33-39. In Kn-rland the shcrt-liand writer of the house attencLs on sncli occasions. ='7/). 13. '///. 10-13. *93 E. Com. J. 210, 353 ; 90 lb. 193 ; 97 Ih. l.>L>7 ; 99 Ih. 89. «95 lb. 59 ; Mirror of P. (1840), vol. 15, p. 721. 'lOti E. Com. J. 148. "88/6. 218. •' 90 y/.. 501,5C4. 204 POWERS AND PRIVILEGES. A witness is always coiisidca'cd under the protection of the house, and no insulting questions ought to be addressed to him.^ On the other hand it is the duty of a witness to answer every question in a respectful manner, and should he not do so the usual course is for the speaker to repri- mand him immediately and to caution him to be more careful for the future.^ If the otfence is clearly manifest, the speaker can proceed at once to reprimand or caution the offender ; if not, the witness may be directed to withdraw, and the sense and direction of the house may then be taken upon the subject.^ In all matters touching its privileges the house may demand definite answers to its questions ; but in case of inquiries touching a breach of privileges, as well as what may amount to crime at common law, the house, " out of indulgence and compassionate consideration for the parties accused," has been in the habit of telling them that they are under no obligation to reply to any questions so as to criminate themselves/ In case it is necessary to change the time of attendance of a witness, the order will be discharged or postponed, and a new order made for his future apf)earance.^ "When the evidence of a witness is concluded for the time being, he will be ordered to withdraw and remain in further attendance if required." If his testimony be not required the order will be read and discharged^ Persons desiring that witnesses may be heard in their behalf must petition the house to that effect, and the house may, or m.ay not, as it thinks proper, grant the prayer.* A witness 1 11 Pari. Reg. 232, 233, 234 ; 13 Ih. 232, 233. HI E. Hans. (1), 662. Also, Cav. Deb. Can. 170, 171. ^ 9 E. Hans. (2), 75. * 146 lb. (3), 101-2. * 95 E. Com. J. 253 ; Can. Com. J. (1874), 17, IS. « Can. Com. J. [1874], 39. ' lb. 18. » Leg. Ass. J. [1855], 656. PRIVILEGES 01 LOCAL LEGISLATVRES. 205 has been allowed the assistance of counsel when his evidence may tend to criminate himself.' The experience of Parliament has shown that in the majority of cases, requiring mature deliberation and inquiry, select committees are the best tribunals for examining witnesses ; and accordingly it w^ill be found, on reference to parliamentary records, evidence is always taken, whenever practicable, before committees.- The procedure in such cases is explained in the chapter de- voted to the functions of select committees. XVin. Privileges of Provincial Legislatures.— The question of the extent of the privileges of the legislative assemblies of the provinces of Canada is not one within the scope of this work, but those who wish to pursue the subject may con- sult the authorities given in the notes, and particularly the judgment of the supreme court of Canada in the case of Landers vs. "Woodworth. Mr. Woodworth, a member of the house of assembly of the province of Nova Scotia, on the 16th of April 18*74, charged the provincial secretary of the day — without being called to order for doing so — with having falsified a record. The charge was subsequently investigated by a committee of the house, who reported that it was unfounded. Two days later the house resolved that in prefening the charge without sufficient evidence to sustain it, Mr. Woodworth was guilty of a breach of privilege. On the 30th of April, Mr. "Woodworth was ordered to make an apology dictated by the house, and, having refused to do so, was declared, by another resolution, guilty of a contempt of the house, and requested forthwith to withdraw until such apology should be made. Mr. AVoodworth declined to withdraw, whereupon another resolution was passed ordering the removal of ^Ir. AVood- worth from the house by the serjeant-at-arms, who, with ' Mr. Bell, returning oflScer, Pari. Deb., 1873, p. 38. * For the practice with respect to divorce bills in the Senate, see last chapter on private bills. 206 POWERS AND J'lUVII.EflES. his assistant, enrorccd the order and rcniovod Mr. Wood- worth, who soon afterwards brought an action of trespass for assault against the speaker and certain members of the house, and obtained a verdict of |500 damages. The supreme court held, on appeal, affirming the judgment of the supreme court of Nova Scotia, that the legislative assembly of Nova Scotia, had, in the absence of express grant, no power to remove one of its members for con- tempt unless he was actually obstructing the business of the house ; and Mr. Woodworth having been removed from his seat, not because he was obstructing the business of ihe house, but because he would not repeat the apology required, the defendants were liable. Chief Justice E-ichards, in the course of his opinion, stated that under the practice in the English Parliament or in the legis- lature of Nova Scotia, so far as he was informed, the making, by one member against another, of an unfounded charo-e which has been inquired into by the house, does not constitute a breach of privilege. If the subject-matter of the inquiry turns out not to be true, there was no autho- rity or precedent shown where a member can be charged with being guilty of a breach of the privileges of the house for so doing. If when the house thinks the inquiry ouo-ht not to be made, and refuses to take it up, the member persists in bringing it forward, so as to obstruct the business of the house, it may be that he might then become liable to the censure of the house, and if he persisted in the interruptions unreasonably, he might, to cjuote the words used in Doyle v. Falconer^ " be removed or excluded for a time, or even expelled." But the house, having thought it a matter which required their atten- tion, took it up and ordered an investigation, and after that, he failed to see how they could properly declare that what the member had done was a breach of their privileges. Judge Ritchie, in delivering his opinion, said ' L.R., 1 P.C, App., 328. Can. Suji. Court Rep. II., 1S4. ritlVILKGKS OF LOCAL LEOLsLATURES. 207 ■that a scries of authorities, binding on the court, ( learly established that the house oi' assembly of Nova Scotia had no power to punish for any offence not an immediate obstruction to the due course of its proceedings, and the proper exercise of its functions, such power not being an essential attribute, nor essentially necessary for the exercise of its functions by a local legislature, and not belonging to it as a necessary or legal incident ; and that, without prescription or statute, local legislatures have not the privileges which belong to the House of Commons of Grreat Britain by the lex et consuetudo Parliamenti. The allegations and circumstances shown in the case in ques- tion afforded, in his opinion, no justification for the plaintiff's removal ; he was not then guilty of disorderly conduct in the house, or interfering with or in any way obstructing the deliberations or business, or preventing the proper action of the house, or doing any act rendering- it necessary, for self preservation or maintenance of good order, that he should be removed.' The legislatures of Ontario and Quebec, immediately after the confederation of the provinces, passed acts to define their privileges and immunities." These acts gave the respective houses such privileges, immunities, and powers as are held by the Senate and House of Commons. The Ontario act was considered ultra vires hj the English law ofiicers, and consequently disallowed by the governor- general in council.^ The same course was taken in the case of the Quebec act.^ Subsequently other acts w^ere passed ' Can. Sup. C. Rep. II., 158-215. Kielly r. Carson (4 Moore P. C. C. 63) and Doyle r. Falconer (L.K. 1. P.C., App. 328) were commented upon by the court and followed. The learned Chief .hi.stico cited thcjse and otlu'-r cases bearing on the (juestion, viz., Beaumont and Baretti (1 3Ioore I'.C.C, p. 59) ; Fenton and Hampton (11 Moore, 347) ; Cuvillicr r. iMonro (4 L.C.K., p. 146) ; Lavoie'6 case (2 L.C.R., p. 99) ; Dill v. Murphy (1 Mooro P.C, C.N.S., 487); cm parte Dansereau, Low. Can. Jurist, vol. xix., pp. 210-248. - Ont. Stat., 32 Vict., c. 3. Quebec Stat., 32 Vict., c. 4. =* Sess. P., JS77, No. 89, pp. 202-12 ; Todd, 365. * Sess. P., p. 221. 208 I'owj'jRs AXI> i>iti\iiJ':r;ics. in the two legislatures deliiiiiig the character and extent of their respective privileges.' These statutes embrace privileges claimed and enjoyed by English members of Parliament, such as iVeedom from arrest on civil process, and other immunities set forth in this (;hapter. The Ontario statute is more comprehensive than the Quebec act, but both are practically the same with respect to the power to compel the attendance of witnesses, the produc- tion of papers, and the protection of persons acting under the authority of the legislature. These acts were left to their operation though their constitutionality in certain respects was questioned by the dominion government.^ However, the court of queen's bench, Quebec, decided that the Quebec statute was within the competency of the legislature.^ The supreme court of Canada, in the decision just mentioned, has also affirmed the right of the legisla- tures to pass statutory enactments conferring upon them- selves such powers and privileges as may be necessary for the efficient discharge oi their constitutional functions.^ In 1876, the Nova Scotia legislature passed a statute conferring upon both houses the same privileges as shall for the time being be enjoyed by the Senate and House of Commons of Canada, their committees, and members for the time being.^ The constitutionality of this act was also questioned by the minister of justice, but it was neither amended nor dis- allowed.'^ In 18t4, a Manitoba statute to the same effect was disallowed,' but subsequently another act was passed and left by the dominion government to come into opera- tion.^ The principle asserted in the judgment of the 1 Ont. Stat., 39 Vict., c. 9, or chap. 12 Eev. Stat. Quebec Stat., 33 Vict,. chap. 5. - Sess. P., 1877, No. 89, pp. 108-14, 201. •' L. C. Jurist, vol. 19, p. 210. * Sup. Court Rep., vol. ii., pp. 158-215 ; Landers, ct al. v^. "Woodworth. ^N. S. Stat, 1870, chap. 22. « Sess. P., 1877, No. 89, pp. 110-114 ; Todd, 469-470. ' Man. Stat., 1873, c. 2. Sess. P., 1877, No. 89, pp. 44-47- >* Man. Stat, 1870, c. 12. Sess. P., p. 106-9. PRIVILEGES OF LOCAL LEGISLATURES. 209 supreme court, just cited, " whilst it does uot debar the Crown from interposing a veto upon an act which should attempt to legalize unwarrantable claims, does in fact render it difficult to object to any powers, proposed to be conferred by statute, that they exceeded the lawful powers and constitutional competency of a legislature to grant." In this respect the court " recognizes the possession in the provincial legislatures of a wider discretion than had been heretofore allowed, either by the dominion govern- ment or by the crown law officers in England." ^ ^ Todd, Pari. Gov. in the C!olonies, pp. 470-71. 14 CHAPTER V. RULES, ORDERS, AND USAGES. I. Origin of the Rules, Orders, and Usages of the Senate and House of Commons. — II. Procedure in Revising Rules. — III. Necessity for a Strict Adherence to Rules. — IV. Sessional Orders and Resolutions. — V. Use of the French Language in the Proceedings of the Houses. I. Origin of the Rules, Orders, and Usages of the Canadian Parlia- ment—The Senate and House of Commons regulate their proceedings under certain rules, orders, and usages, which are derived, for the most part, from the i)ractice of the British Parliament. It will also be seen on reading this chapter that Canadian legislatures have adopted since 1*792 the wise principle of referring in all cases of doubt and perplexity to the procedure of the Imperial Parlia- ment. But whilst Canadian parliamentary practice is generally based on that of England, certain diversities have grown up in the course of years ; and in some par- ticulars the practice of the two houses is not only simpler and better adapted to the circumstances of the country, but also calculated to promote the more rapid progTess of the public business.^ The great principles that lie at the basis of English parliamentary law have, however, been always kept steadily in view by the Canadian legisla- tures ; these are : To protect the minority and restrain the improvidence and tyranny of the majority, to secure ^ Mr Raikes in an article in the '' Nineteenth Century," November, 1879, suggests new arrangements in reference to bills which have been practically in operation for years in Canada. ORIGIN OF THE RULES. 211 the transaction of public business in a decent and orderly manner, to enable every member to express his opinions within those limits necessary to preserve decorum and prevent an unnecessary waste of time, to give full oppor- tunity for the consideration of every measure, and to pre- vent any legislative action being taken heedlessly and upon sudden impulse.' It is true that the English House of Commons has, within a few months, adopted very stringent rules which seem in a considerable degree at variance with the old principles of parliamentary procedure. The cldture has been borrowed from the French system, and other mea- sures have been formally taken with a view to prevent organized obstruction. But these new orders which cer- tainly impose restrictions on freedom of speech, and give increased power to the speaker, and to the majority, have been forced on the house by a very exceptional, if not revolutionary state of affairs. No systematic obstruction has prevailed in the Canadian House of Commons, where all x^arties continue to value those i^rinciples of English procedure which seem the best strength of a parliamen- tary system. Elsewhere the reader will find the new English orders, not because they enter into Canadian practice, but because they should appear, as a matter of course, in a work of this character." The history of the rules and orders, which now form the basis of Canadian parliamentary practice, must be gathered from the journals of the two houses, since the days when legislatures were first convened in Canada. In the legislative councils of Upper and Lower Canada, the rules were from the first based on the practice of the house of Lords, as far as the constitution of the house and the circumstances of a new country permitted ; and the same course was pursued in 1841 by the legislative ^ Hearn, Gov. of England, 545-7. ^ S60 chapter on debate, last section. 212 RULES, ORDERS AND USAGES. couucil of United Canada,' and in 18G7-8 l>y the Senate^ whose standing orders now provide : " 112. In all unprovided cases, the rules, usages, and forms of proceedings of the house of Lords are to be followed." The first action taken in the legislative assembly of Lovv^er Canada w^as in 1Y92, vv^hen the lieutenant-governor sent a message recommending " the framing of such rules and standing orders as might be most conducive to the regular despatch of business." The house immediately adopted a code of rules based for the most part on those of the Imperial Parliament." The legislative assembly of Upper Canada w^hich met for the first time at Niagara, followed a similar course.^ The legislature of the united Canadas also adopted a code in conformity with that of the Imperial Parliament.* Again, when the Parliament of the dominion met for the first time, after the passage of the Union Act of 1867, one of the first proceedings of the House of Commons was necessarily to appoint a committee to frame rules for the government of procedure in that house. The committee subsequently reported the rules and standing orders- which now regulate the proceedings of the Commons, and which are substantially those of the legislative assembly of Canada.'^ Rule 120 now orders : " In all unprovided cases, the rules, usages, and forms ox the House of Commons of the United Kingdom of Great Britain and Ireland shall be followed." 1 Leg. C. J. [1841], 28. App. 2. ^ I. Christie's Low. Canada, 130-139. In the journals of 1792 (vol. i., p. 48) we find the following entry : " Resolved that as the assembly of Lower Canada is so constituted after the model and usage of the ParHanaent of Great Britain, it is wise and decent and necessary to the rights of the people, as well as to the interests of the Crown, tliatthis house follow and observe, as nearly as circumstances icill admit, tlie rules, orders and usages- of the Commons House of Parliament." Also, pp. 26, 86, 124, &c- ^ Upp. Can. J. [1792], in MS. in the Parliamentary Library. * Leg. Ass. J. [1841], 29, 40, &c. ^ Can. Com. J. [1867-8], 5, 16, 43, 115, 125, 133. REVISING RULES. 213 n. Procedure in revising rules and orders. — "Whenever it is necessary to appoint a committee in the Commons to revise the rules and standing orders of the house, it is customary to place it under the direction of Mr. Speaker, the motion being : " That a special committee of — members be appointed to assist Mx. Speaker in revising the rules of the house, &c."' When this committee has reported, its proceedings will he ordered to be printed,^ generally in the votes and pro- ceedings'*; and after some time has been given to members for the consideration of the proposed changes, the house will resolve itself into a committee of the whole on the report. When the rules or amendment to the rules are reported from the committee, they must be formally con- curred in like any other resolutions ; and when that has been done they regulate the procedure of the house,-^ All the rules and standing orders are printed from time to time in a small volume, which in some cases also includes the British North America Act, 18G7, and acts in amend- ment thereof.'^ In the Senate it is also thej^ractice to refer the question of revising the rules to a select committee.^ In 1875 Mr. Speaker Christie was authorized by that house to examine during the recess the rules and forms of jiroceedings and 1 Can. Com. J. [1867-8], 16, 133. lb. [1876], 58. 2 lb. [1867-8], 43. ^ lb., 1876, March 6, V. and P. All the rules were printed (with the proposed amendments in brackets) in a convenient form before they were considered in committee of the whole. The rnle-s and standing orders, as amended in committee of the whole and adopted by the hduse, .should be given in the journals; 108 E. Com. J., 756, 770, 791 ; Can- Com. J. [1867-8], 115. This was neglected in 1876, though several amendments were made in committee of the whole. In the English house, when au -order is to be repealed, it is first read and then rescinded ; the new stand- ing orders will next be proposed and agreed to; 182 E. Hans. (3) 603. * Can. Com. J. [1867-8], 115, 125. lb. [1876], 216. * Can. Com. J. [1867-8], 133. «Sen. J. [1867-8], 60. 214 RULES, ORDERH AND USAGES. suggest to the house at the next session such amendments as he might deem advisable/ The speaker's report with a draft of the propos(;d amended rules, was submitted and referred to a select committee in the early part of the session of 18^6. This committee reported certain amend- ments to the speaker's draft, which were considered on a future day. The report was adopted with some modifi- cations and amendments. It is not the practice therefore for the Senate to go into committee of the whole on amendments to the rules.-^ By the 111th rule of the that house, the British North America Act, 1867, all acts in amendment thereof, as well as the commission and royal instructions to the governor-general, are printed in a book with the rules for the convenience of the members. m. Necessity for a strict adherence to rules. — Each house is bound by every consideration of self-interest and justice to observe strictly its rules and standing orders, and to rebuke every attempt to evade or infringe them.^ The political party which controls the house to-day may be in a different position to-morrow, and is equally in- terested with the minority in preserving the rules of the house in all their integrity. " So far the maxim is- certainly true, and founded on good sense," says Hatsell,. " that as it is always in the power of the majority by their numbers to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves from similar attempts from those in power, are the forms and rules and proceed- ings which have been found necessary from time to time, and are become the standing orders of the house ; by a strict adherence to which the weaker party, can alone be 1 Sen. J. [1875], 256. - lb. [1876], 23, 119, 168. Also [1867-8], 143. ^ See eulogj' on Parliamentary Law in Hearn, Gov- of England, pp- 545-8. Bentham, certainly an impartial oritic, '' recognizee, in this bye- corner, the original seed-plot of English liberty." ADHERENCE TO RULES. 215 protected from those irregularities aud abuses which these forms were intended to check, and which the wantonness of power is but too often apt to suggest to large and suc- cessful majorities." Consequently the Senate and House of Commons never permit their rules and standing orders to be suspended, unless by unanimous consent ; but they may be formally amended or repealed on giving the notice required in the case of all motions.^ The Senate,- like the House of Lords, has standing orders on the subject : " 17. ]Sro motion for making any order of the Senate a stand- ing order can be adopted, unless the senators in attendance on the session shall have been previously summoned to consider the same, " 18. !No motion to suspend, modify, or amend any rule or part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part of rule proposed to be siispcnded, modified or amended, and the purpose thereof.' But any rule may be suspended without notice by the consent of the Senate;* and the rule proposed to be suspended shall be precisely and distinctly stated ; and no motion for the suspension of the rules upon any petition for a private bill shall be in order, unless the same shall have been recommended by the committee on standing orders."^ The proceedings of the two houses of Parliament are regulated by statute, by rules and orders adopted by them- selves, and by those usages which have grown up in the course of time and consequently become a part of their own practice, or are derived from the common law of Parliament by which, as we have just seen, they have con- 1 80 E. Hans. (3), 158 ; 182 lb. (3), 591 ; 224 lb. 4S, 1()4. Can. Com. J. (1868), 144. Remarks of Sir J. A. Macdonald, Can. Hans. (187S), 3-4. Can. Com. J. (1877), 111,258, 227 (1 and 19 K. susixMidod); lb. (1883), 128, decision of ^h: Speaker Kirkpatrick. •^Min. of P. (1807-8), 111 ; lb. (18(19), 107 ; Jour. G9. Deb. (1878), 292. ^ Sen. Hans. (1882), 705-0. :Min. of P. (1883), 359, 363. * Sen. Hans. (1882), 103. ^ See Commons standing orders respecting private bills No. 55. '216 RULES, ORDERS AND USAGES. eented to be guided iu all matters oi' doubt. A statute regulation supersedes and cannot be abrogated by any order of the house to whi(;h it appli(3s/ For instance, on one occasion Mr. Speaker Cockburn pointed out the fact : "The constitutional rule contained in the 54th section of the Imperial Act is one that, being absokitely binding, should be neither extended nor restrained by impUcation, but should, at all times, be most carefully observed by the house. Consequently unless the governor-general first recommends any vote or motion for the appropriation of public money, it cannot be received by the house."^ An express rule or order of the house, whether standing or occasional, supersedes every mere usage or precedent. But in the absence of an express rule or order, what can or ought to be done by either house of Parliament is best known by the custom and proceedings of Parliament. The unwritten law of Parliament in such a case has as much 'eiSect as any standing order.^ It must also be borne in mind that in the interpretation of the rules of standing orders the house " is generally guided, not so much by the literal construction of the orders themselves as by the consideration of what has been the practice of the house with respect to them."* IV. Sessional Orders and Resolutions.— The house passes, in the course of every session, certain orders, which are intended to have only a temporary effect on its proceed- ings, or to regulate the business of the session. These orders generally relate to the times of adjournment, the arrangement of business, or the internal economy of the ^ Gushing, 790. 2 Can. Com. J. (1871), 50. ■'Cashing, 790; 4 Hatsell, 491, note; 229 E. Hans. (3), 1625 (Mr. S. Brand) ; 4 Inst. 15 ; 1 Black. Com. 163. Optimus Leguminterpres consuetvtdo, 2 Eep. 81, Coke on Litt. 186a, note ; Sedgewick, 255. * Mirror of P. 1840, vol 16, p. 1108-9. USE OF THE FRENCH LANGUAGE. 217 liouse, or to the presentation of certain papers in subse- quent sessions.^ Up to the session of 1870, certain resohi- tions relative to the offer of money to members were formally proposed and agreed to at the commencement of every session, but when the rules were revised that year, these resolutions were placed among the permanent orders.- Though resolutions strictly expire with the ses- sion in which the are adopted, there are certain resolutions and orders, concerning matters of order and j)rartice, which have been observed as binding without being renewed in future sessions. In such a case it is the prac- tice of the speaker to call attention to the resolution, and to give the house another opportunity of considering whether the resolution should continue to be observed."* V. The Use of the French Language.— The use of the French language in the proceedings of the legislature has, from the earliest days of the parliamentary history of Canada, received the sanction of custom and law. At the first session of the legislative assembly of Lower Canada, it was resolved that no motion should be debated or put to the house, unless it was first read in English and French. As the speaker of that day, Mr. Panet, was not well con- 1 Can. Com. J. (1867-8), 59, 80, &.c. Ih. (1877), 111, 227, 2.kS ; //>. <1882), 55. - Can. Com. J. [1876] 110 supra p. 196. Still renewed every session in Eng- land ; Jour, for 1877, pp. 3-4. The order relative to votes and proce^'il- ings, however, was still to be renewed every session (Can. Com. J., 1S77, p. 12; 129 E. Com. J., 8) ; but this was not done in 1878 and l'<79, and now it has a place among tlie standing orders, though there is nothing on tlio record to sliow how it came there. » May, 194, 268 ; Mr. S. Brand., p. 79 Rep. of Com. on Public B., 1S7S. Exclusion of strangers, 227 E. Hans. (3), 1420; 240 lb., 478; 131 E. Com. J., 79, 348. Mr. Speaker Anglin's attention was called in 1878 to the fact that a resolution of 1874 relative to the management of the refR'shment rooms of the house was not carried out. Ho said, after some remarks from several members, that lie would at once renew his orders in afi'ord- ance with the wish of the house as expr(\ssed in tlio n'-solution. Can. Com. J. [1874], 14. Private MSS., March 5, 1S78. 218 RULES, ORDERS ANT) USAGES. versant with English, it was subsequently resolved that in all cases when the speaker could not speak both English and French, " he should read in eith(!r of the two languages most familiar to him, while the reading in the other language should be by the clerk or his deputy at the table." It was also decided to have the journals and bills printed in English and French. Every member had a right to introduce a bill in his own language, but it was then the duty of the clerk to have it translated.' The rules then adopted, it will be seen a little further on, are substantially those which now regulate the procedure of the Parliament of Canada. When the two provinces of Canada were united under one Parliament, it was provided by the 41st section of the Act of Union," that " the language of the legislative records, of what nature soever, shall be in the Eniylish lausruaiie only," and though translations might be made, no copy of them " could be kept among the records or be deemed in any case to have the force of an original record." This law naturally created great dissatisfaction among the French Canadians, and it was finally repealed by the Imperial Parliament after an address to the queen had been passed by both houses.^ By the 133d section of the British North America Act, 18G7, it is expressly provided : " Either language may be used by any person in the debates of the houses of the Parliament of Canada; and both these- languages shall be used in the respective records and journals of those houses The acts of the Parliame nt of Canada and of the Legislature of Quebec shall be printed and published in both those languages." 1 I. Christie's Lower Canada, 132^ ; Low. Can. J. [1792], 92, 100, 148, ikc. The journals were printed with corresponding pages in the two languages. ^ 3 and 4 Vict., c. 35. m and 12 Vict., c. 56, s. 1, Imp. Stat. Leg. Ass. J. [1S45], 289, 290,. 300, 305, 317. USE OF THE FRENCH LANGUAGE. 219 And by rule 33 of the House of Commous, it is ordered : " When a motion is seconded, it shall be read in English and Fi-ench by the speaker, if he be familiar with both languages ; if not, the speaker shall read the motion in one language, and direct the clerk to read it in the other before debate." And rule 93 provides : All bills shall be printed before the second reading in the Fi-ench and English languages." These rules are always strictly observed in the House of Commons. It is the duty of one of the clerks at the table in both houses — for though the Senate^ has no stand- ing orders on the subject, yet it is governed by custom and law — to translate all motions and documents whenever it may be necessary. The votes and journals of both houses, and all bills and sessional papers, are invariably printed in the two languages. Provision is also made by law for the use of the French language in Quebec," Manitoba'^ and the North-West Territory.'* 1 See Report of Select Committee, Sen. J. [1877], 113, 136, 208, 256. 2 B. N. A. Act, 1867, s. 133. Quebec Leg. Ass. Rules, 33, 93. 3 33 Vict., c. 3, s. 23. * 43 Vict., c. 25, s. 94. CHAPTER VI. MEETING, PROROGATION, AND DISSOLUTION OF PARLIA- MENT. I. Meeting of Parliament. — II. Proceedings in the Senate. — III. Election of Speaker of the Commons. — IV. Consideration of the Speech. — V. Proceedings in Sessions subsequent to the first. — VI. Prorogation. — VTI. EfJect of Prorogation. — VIII. Dissolution. I. Meeting of Parliament.— The suminonirig, prorogation, and dissolntioii of Parliament in Canada are governed by English constitutional usage. Parliament can only be legally summoned by authority of the Crown •/ but the British North America Act of 1867 provides, with respect to the dominion of Canada, that there shall be a session " once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session, and its last sitting in the next session."^ A subsequent section also provides that " every House of Commons shall continue for five years from the day of the return of the writs for choosing the house, — (subject to be sooner dissolved by the governor-general), — and no longer."'^ Apart, indeed, from statutory enactments, the practice of granting supplies annually renders a meet- ing of Parliament every year absolutely necessary.^ Par- liament is summoned by the Queen's proclamation, by 1 2 Hatsell, 296. 2 Sec. 20, B. N. A. Act, 1867. ^ Sec. 50, lb. See supra, p. 60 for statement showing average duration of each Parliament since 1867. * Mav, 44. PROCEEDINGS IN THE SENATE. 221 and with the advice of the privy council/ It is the prac- tice to prorogue Parliament for intervals of forty days, and when it is the intention to assemble the two houses, de facto, the proclamation will require senators and members of the House of Commons to appear personally : " For the despatch of business, to ti-eat, do, and act, and conclude upon those things which in our said Parliament of Canada, by the common council of our said dominion, may by the favour of God be ordained." ' The Parliament of Canada meets as a rule in the winter months. The first session was held in November, 186Y, and adjourned to March, 1868. In 1869 and 1872 the houses assembled in April ; in 1873 and 1874, in March ;. in 1873 there was a special session in October, on account of ministerial difficulties. In 1880 the houses assembled in February, and again in December, to consider the Canada Pacific Railway contract. The practice in other years has been to assemble in February,'^ but in view of the general sentiment of the house, it is now arranged that Parliament will be summoned hereafter as soon as possible after the commencement of the year. n. Proceedings in the Senate.— At the opening of a new Parliament, the senators will assemble in their chamber, at the hour appointed ; and after prayers, if there is then a speaker, it will be his duty to present to the house the usual communication from the governor-general, inform- ing them of the hour when he will proceed to open the session. New members will, on this occasion, be admit- ^ Jour. [1879], v-x. ^ Infra, p. 236. See diflforent proclamations Avhich appear at commence- ment of Journals of Senate and House of Commons. Also, ajtix-ndix at end of this work for text of proclamation for a meeting for business. ^ See address moved by Mr. Brown in the legislative assembly of Canada, in 1853, declaring that the month of February was the most con- venient joeriod for the assembling of Parliament. Jour. [1852-3], GOO, GUI,. 750. 222 MEETING OF I'MILIAMKNT. ted and introduced. The house will theu adjourn during pleasure, and resume as soon as his Excellency or the deputy governor presents himself in the chamber.' In case there is a new speaker, as soon as the Senate has met, the clerk will read the commission appointing him ; and then he will be conducted to the chair at the foot of the throne by two prominent m(;mbors — one of them generally the loader of the government in the house — the gentleman usher preceding.^ The mace which lay before under the table, will then be placed thereon,^ and prayers will be read by the chap- lain. It is usual then to present certificates of the appointment of new members, and to have them formally introduced. The house will next be informed of the hour when his Excellency or the deputy governor will come down ; and the house will then adjourn during pleasure or until that time. As soon as his Excellency or the deputy governor is seated in the chair on the throne, the speaker will command the gentleman usher of the black rod to proceed to the House of Commons and ask their attendance in the Senate chamber.^ The proceedings when the Commons present themselves at the opening of a new 1 Sen. J. [1878] 15-17. lb. [1883] 1-23. The proceedings at the ope.ning, when there is a speaker, are the same as in the old legislative council of Canada, when the speaker was also nominated by the Crown. Leg. Coun. J, [1852] 25-27. The proceedings in 1878 were similar to those at oi)eniiig of a new Parliament as the Commons had to elect a speaker. 2 Sen. Jour. [1879] 16 ; Ih. [1880] 12. ^ The late Mr. Fennings Taylor, for many years deputy clerk, informed the writer that the mace used in the senate belonged to the old legislative council of Canada. On the night of the 25th April, 1849, when the Par- liament building at INIontreal was burned by the rioters, it was saved by Edward Botterell, at that time a messenger, and subsequently a door- kee^jer of the legislative council and senate. It was placed by him for security in a neighbouring warehouse, and was found, when required, quite uninjured. * Sen. J. [1874] 11-17; lb. [1879] 15-19; I}>. [ISSO] 12-14. For proceed- ngs in the Lords when a new chancellor is ajipointed before the opening of a new Parliament, see 194 E. Hans. (3) 2-3. PROCEEDINGS IX THE SENATE. 223 Parliament — or of a subsequent session — will be described in a later page, where explanations are given of the Com- mons' proceedings. When the speaker is a new member, the clerk must first present the usual return from the clerk of the crown in chancery, and the former will then take the prescribed oath with other new members who may be present. His appointment as speaker will then be formally notified in the manner just stated.' In case of the appointment of a new clerk, it is the duty of the speaker to announce it to the Senate. The commission will be read forthwith, and the clerk sworn at the table. The appointment of other crown officers may also be announced at the same time.- Whenever a new speaker and a new clerk have been appointed, as in 186*7, the commission of the former will be first read, and he will take his seat in due form. The speaker will then announce the appointment of the clerk, so that his com- mission may go on the journals.' We may now take up the proceedings at the stage where the speech has been duly delivered by the gov- ernor-general, and the Commons have returned to their chamber. The speaker of the Senate, after the retirement of his Excellency, and the introduction of a bill pro forma will report the speech which will be ordered to be taken into consideration immediately, or on a future day, the day following, should it be a sitting day, being generally chosen. All the members present will then be appointed a committee " to consider the orders and customs of the house and privileges of Parliament." ^ When the order of 1 Sen. J., 18G7-8, INIr. Cauclion ; Ih., 187:5, Mr. Clumvcau. '^ lb. [1883] 1-20 ai)poiiitmout of clerk and masters in chancery. Also, Supra, p. » lb. [18G7-8] 55 ' K. I.; Jour. [1879] 22-23; Lords' J. [1877] 11. To tlii.s couunittoo is referred every matter alTecting the privileges of the house and its mem- bers. In 1880, a senator made a charge against the ollicial reiwrters, 224 MEETING OF J'ARLIAMENT. the day for the consideration oi" liis Excellency's speech has. been reached, two members will formally propose and second the address in answer to the same. Grenerally^ two new members, whose political sympathies are in accord with the policy of the government of the day, are chosen for this purpose. The practice in the two houses with respect to the address was similar up to 1870,' when it was simplified in the Senate in conformity with the latest practice of the House of Lords. It is now only necessary to move the address directly, without going through the formality of proposing a prior resolution as in the House of Commons. When the address has been agreed to, it is ordered that it be presented to his Excel- lency by members of the privy council who have seats in the Senate.^ m. Election of Speaker.— When a new Parliament meets, for the despatch of business, on the day appointed by procla- mation, the members of the Commons assemble in their chamber at an hour of which they have been previously notified by the clerk, for the purpose of taking the oath and signing the roll containing the same. The clerk of the crown in chancery is required to be in attendance on this occasion at the table of the house and to deliver to the clerk a roll containing a list of the names of such members as have been returned to serve in the Parliament, then about to meet for the transaction of business.^ The following oath will then be administered at the table by certain commissioners (generally the clerk, the clerk- and it was referred to the committee, on a motion made not by him, but by two other members. This was a new precedent, but nothing came of the reference as tlie senator in question liad not asked for it and had consequently notliiug to submit. Sen. J. [1880] 139, 158 ; Hans. pp. 243- 46, 267, 280. 1 Sen. J. [1867-8] 69-72. •■' Ih. [1877] 24, 34; lb. [1878] 24 ; Ih. [1879] 25-30; lb. [1883] 35-36. Lords' J. [1877] 10, 11. ^ Can. Com. J. 1867-8, 1873, 1874, 1879, 1883, p. 1. ELECTION OF SPEAKER. 225 assistant, sorjeaut-at-arms and law-clerk) aiipointed by dedimus potestatem, as provided by the British North America Act, 1867 : " I do swear that I will be faithful and bear true allegiance to her Majesty Queen Victoria."^ When all the members present have been duly sworn, they will repair to their seats and await a message from the governor-general. It is generally customary, how- ever, to swear in the members at a convenient time in the morning, and then the members re-assemble a few minutes previous to the hour at which his Excellency is to come down to open Parliament. The members being all in their seats, and the clerk, with one or two assistants, being in his place at the head of the table, the usher of the black rod presents himself at the door of the Commons and strikes it three times with his rod. He is at once admitted by the serjeant-at-arms, and advances up the middle of the house, where he makes three obeisances, and says in English and French : " Gentlemen, (or Mr.Speaker, in subsequent sessions)his Excel- lency the Governor-General (or the deputy governor) desires the immediate attendance of this honourable house in the Senate chamber." - The gentleman usher then retires, without turning his back upon the house, and still making the customary obeisances. The house will then at once proceed to the Senate chamber,"^ where the members of the Commons will be informed by the speaker of the Senate : * B. N. A. Act, s. 128 and 5th schedule. In the English Commons, the speaker first takes the oath, and then the memhers. Consequently the ceremony is attended with the proper solemnity. ]\Iay, 204. In tho Canadian house, tho ceremony is attended with some confusion through the eagerness of members to be sworn immediatelj'. Pari. Deb., 1S73, p. 1. - Can. Com. J., 1874, 1875, 1878, 1879, 1883, p. 1. Tarl. Deb. [1874]. Tlio procedure in such cases is similar to that of tho English Parliament. •■' Previous to the session of 1880 members generally preceded Mr. Speaker and oflBcers, but at the commencement of that session arrango- 15 226 MEETING OF PARLIAMENT. "His Excellency tlic Governor-General (oi- deputy governor as in 1878 and subsequent sessions) does not see fit to declare the causes of his summoning the present Parliament of the dominion of Canada, until a speaker of the House of Commons shall have been chosen according to law, but to-mori"OW, at the hour his Excellency Avill declare the causes of his calling this Parliament! (or "the causes of calling this Parliament will be declared," in case a deputy governor is present.) The Commons haviug returned to their chamber, will proceed at once to the choice of a speaker. The clerk presides at these preliminary proceedings, and will stand up and point to a member when he rises to speak. A member will propose the name of some other member then present in these words : " That do take the chair of this house as speaker." This motion must be duly seconded, and put by the clerk, and in case there is no opposition, it will be resolved Nemine contradicente "That do take the chair of this house as speaker." The clerk having declared the member in question duly elected, his proposer and seconder will conduct him from his seat to the chair, where standing on the upper step he will " return his humble acknowledgments to the house ments were made to give precedence to IMr. Sj^eaker and prevent, if pos- sible, confusion and difficulty in entering the Senate chamber. Precedence of members in the English house in going up to the Lords is determined by ballot. Eng. J., 1851, p. 439, 443, 445. May, 220. Also, 118. Eng. Hans. (3) 1940-2, 1946. Mirror of P., 1828, vol. i., p. 13. These references will show how difficult it has also been found in England to arrange an orderly procedure on such occasions. 1 Can. Com. J. [1873] 1,2; Ih. [1878] 1 ; lb. [1S79] 1. Sen. J. [1874] 15 ; Ih. [1878] 17; Ih. [1879] 19. Until the cause of summons has been formally declared by the queen or her representative, neither house can proceed upon any business whatever. The siieaker's election is the only business which can be done and that is no exception to the rule, since the Commons receive express authority for performing this act, without which the House of Commons is not completely organized. 2 Hatsell, 307, 327. 1 Todds' Pari. Gov., 248. The s^jeaker of the Senate, however, is sworn and takes his seat, and new senators are admitted as soon as the Senate meet. Sen. Jour. [1879]. 15-19. ELECTION OF SPEAKER. 227 for the great houour they had been pleased to confer upon him by unanimously choosing him to be their sj)eaker."' In case there is opposition, and two or more candidates are proposed, the clerk will continue to point to each member as he rises, and then sit down ; and when the debate is closed he will put the question first proposed ; and if the majjority decide in favour of that motion, the speaker elect will be immediately conducted to the chair ; but if it be otherwise, the second motion will be sub- mitted to the house ; and if it be resolved in the aitirma- tive, the member so chosen will be conducted to the chair in the customary way.^ It is very unusual to divide the house when only one member has been proposed, as was the case in 1878, but still some instances can be found in the parliamentary history of England and Canada. ' It has never been the practice in the Canadian or English Parlia- ments for a member proposed as speaker to vote for his own election.' In the Canadian House of Commons, the leader of the 1 Can. Com. J. [1867-8] ; lb. [1873] ; lb. [187-1] ; Ih. [1883] 2. The person proposed should always be present, and should be properly a member upon whoso seat there is no probability of a question. 2 Hatsell, 217. For remarks of speaker on such occasions, see 218 E. Hansard 10. Can. Pari. Deb. [1874] 1. Can. Hans. [1878] 12; lb. [1883] 2. The Enghsh practice is a little different ; no question is put by the clerk. 12'J E. Com. J. 5. May, 200. 2 May, 200. 90 E. Com, J. 5 ; 94 lb. 274. There are no cases since 1SG7 of more than one candidate being proposed for the chair, but many in- stances can be found in the journals of the old legislative assembly. Leg. Ass. J. [1848] 1, 2; lb. [1854], three candidates, ^Messrs. Cartier, Sicotte and J. S. Macdonald ; 11). [1863] 2nd. session. ■' Mr. Speaker Walibridge, 1863, 2nd session. Leg. Ass. See also Jour, of 1852 and 1858. Hatsell, vol. ii., 218 n., gives some old cases from Euglisli Iiarliamentary records. ^ See for illustrations 6f Canadian practice : Low. Can. J. 1797, 1809, 1825, 1835. Can. Leg. Ass. J. 1844, 1848, 1852, 1854, 1858, 1862, 1863 (2 sess.). Can. Com. J. 1878. In 1854 a candidate voted, but only after the house had refused to accept him, and on a division for another member projiosed as si)eaker. INIr. Turcotto voted himself into tlio chair of the Quebec Leg. Ass. in 1878. 228 MEETING OF PAJIIJAMENT. government generally proposes the first candidate for speaker, and another member of the cabinet seconds the motion.' In the English house, a private member is now always chosen to make the motion, so that it may not appear that the sjx'aker is the " friend of the minister rather than the choice ol' the house."" It is usual ibr leading members on both sides of the house, in England as in Canada, to congratulate the speaker elect in appropriate terms.'^ Mention is always made of this fact in the English, but not in the Canadian journals.^ When the speaker has made his acknowledgments to the house, the mace will be laid on the table, where it always remains during the sitting of the house, while the speaker is in the chair .'^ Then the house adjourns until the following day, or to such time as the governor-general 1 Can. Com. J., 1867-8, 1873, 1874, 1878, 1879 and 1883.- See Can. Hans. [1878] 2. lb. [1883] 1. 2 May, 199-200 ; Opinion of Mr. Hatsell. See 129 E. Com. J. 5 ; 218 E. Hans. (3) 6-14, 1874 ; wlien Mr. Brand was chosen speaker on motion of Chaplin and Lord H. Cavendish. Also, remarks of Sir J. A. Mac- donald as to advantages of adopting the same practice in Canada. Can. Hans. [1878], 2. '' 218 E. Hans. (3) 10, &c. Can. Pari. Deb. [1874] 1. * 129 E. Com. J. 5. ^ Hatsell says : When the mace lies upon the table it is a house; when under, it is a committee. When it is out of the house, no business can be done ; when from the table and upon the Serjeant's shoulder, the sj^eaker alone manages. Before the election of speaker, it should be under the table, and the house cannot proceed to the election of a new speaker without the mace. 2 Hatsell, 218. The mace remains in the custody of the speaker until he resigns his office. It accompanies him on all state occasions, see supra, p. 166. The mace now in use belonged to the old legis- lative assembly of Canada, and was carried away by the rioters on the 25th April, 1849, when the Parliament House was burned down at [Mont- real, after the assent of the governor-general. Lord Elgin, to the Rebellion Losses Bill. It was subsequently recovered, however, and was lying on the floor of the hall when the assembly met on the 26th in the Bonsecours market. Two of the gilt beavers were missing, having been wrenched oS by the rioters. The legislatures of Nova Scotia, New Brunswick, and Prince Edward Island have never used a mace. See Canadian Monthly for August, 1881, article, by Mr. Speaker Clarke on the mace. ELECTION OF SPEAKER. 229 •will formally open Parliament. At the hour fixed for this purpose the speaker will take the chair, and read prayers before the doors are opened/ After which he will await the arrival of the " black rod " who presents himself in the manner previously described. When that functionary has delivered his message desiring the attendance of the Com- mons, the speaker elect, with the house, will proceed to the Senate chamber, where he will acquaint his Excellency that the house had " elected him to be their speaker, and will humbly claim all their undoubted rights and privi- leges." On behalf of his Excellency, the speaker of the >Senate will reply that " he freely confides in the duty and attachment of the House of Commons to her Majesty's person and government, and upon all occasions will recognize and allow their constitutional privileges, etc."^ The choice of speaker by the Canadian Commons, it will be seen by the foregoing form, is not " confirmed " and " approved " as in the English house.'^ In the old legis- latures of Canada previous to 1841 the speakers always pre- sented themselves for, and received, the approval of the gov- ernors ;* but a difficulty arose in 1827 in the legislature of Lower Canada in consequence of the refusal of Lord Dal- housie, then governor-general, to accept Mr. Papineau as speaker. The assembly passed resolutions declaring that the course followed by the governor-general was unconsti- tutional inasmuch as the act of Parliament under which the legislature was constituted " did not require the approval of the person chosen as speaker by the person administering the government of the province in the name of his Ma- jesty." The assembly also expunged the proceedings irom their journals, as had been done by the English Commons ' See chapter vii., s. 10. ^ Sen. and Com. J. 18G7-8, 1873, 1874, 1879, 1883. For the formula when a speaker is elected during a Parliament and no reference to ])rivilei,'cs is made, see Journals of 1878, and Supra, p. 187. 3 129 E. Com. J. 5 ; IMay, 201. * Low. Can. Ass. J. [1792] 20 ; ri>p. Can. Ass. J. [1792] .'j. 230 MEETTNCl OF VARLTAMENT. in 1678 in the famous case of Sir E. Seymour.' No compro- mise beini;- possible under the circumstances, the governor- general prorogued Parliament. In a subsequent session, the choice of Mr. Papineau, as speaker, was " approved " by Sir James Kempt, who had succeeded Lord Dalhousie as governor-general.- The form of approval continued to be observed in the legislatures of Upper and Lower Canada until the union of the two provinces'^n 1841, when it was discontinued in the first session of the Parliament of Canada as the act of union was silent on the point.^ In the legislatures of Nova Scotia, New Brunswick and Prince Edward Island the lieutenant-governors continue as for- merly to ratify the choice of the assembly ; ' but in the legislatures of Ontario, Quebec, British Columbia and Manitoba, no " approA^al " is given, the same form being used in those bodies as in the Parliament of the dominion.*^ 1 4 Pari. Hist. 1092; May, 203. ^ III. Christie, 142, 218. It appears that Mr. Papineau had reflected very strongly in his addresses and manifestoes upon the governor-general. lb. 140. ^ The speaker, on these occasions, generally said : " It has pleased the house of assembly to elect me as their speaker. In their name I there- fore pray that your Excellenc}' may approve of their choice." To which the speaker of the legislative council replied : " I am commanded by H, E. the governor-in-chief to inform you that he allows and confirms the choice that the assembly have made of you as their speaker." Low. Can. Ass. J. [1835] 21. It is interesting to note, however, that this formal mode of confirming and approving the choice of speaker was not followed in the first session of the first parliament of Lower Canada. On this occasion the representative of the Crown simply stated that he had "no doubt that the house had made agood choice." Low. Can. Ass. J. [1792] 20- * 3 and 4 Vict., c. 35, s. 33. Leg. Ass. J. [1841] 2, 3. * N. S. Ass. J. [1883] 5, 6- K B. Ass. J. [1879] 11, 12. P. E. L Ass. J [1877] 5. As far back as 180G, Sir John Wentworth, governor of Nova Scotia, refused to ratify the choice of AV. Cottnam Tonge as speaker by the assembly, which body, while expressing regret at the use of a prerogative long disused in Great Britain, acquiesced and elected Mr. Wilkins. See " Lower Canada "Watchman " which gives a list of precedents of refusal of the Crown to accej^t sjieakers in England and her dei:)endencies. « Ont. Ass. J. [1880] 4; Quebec Ass. J. [1882] 3; B. C. Ass. J. [1872] 2 ; Man. Ass. J. [1880] 0. COXSIDERATIOX OF THE SPEECH. 231 IV. Consideration of the Speech.— On Teturnino' from the Senate chamber the speaker will resume the chair and — the members of the Comi]j,ons being all assembled in their respective places — will inform the house that the usual privileges had been granted to the house by the governor- general.' One of the first proceedings will be the presentation by the speaker of reports of judges and returns of the clerk of the crown in chancery respecting elections. It is then the invariable practice in the Commons, as in the Senate, before the speaker reports the speech to the house, to introduce a bill, and to move that it be read a first time only pi'o forma. This practice is observed in assertion of the right of Parliament to consider immediately other business before proceeding to the consideration of the matters expressed in the speech.- It is then the practice for the speaker, standing on the upper step of the chair, to report that " when the house did attend his Excellency the Grovernor-G-eneral this day, his Excellency was pleased to make a speech to both houses of Parliament, of which he had, to prevent mis- takes, obtained a copy." The house rarely calls upon the speaker to read the speech, as printed copies are always distributed immediately among the members ; but it is entered on the journals as read." The premier, or other member of government in his absence, will move that the speech be taken into consideration on a future day, generally on the following day, if the house should meet at that time.* On some occasions, to suit the convenience 1 Can. Com. J. 1867-8, 1873, 1874, 1879, 1883, p. 3. ^ Low. Can. J., vol. 9, p. 30. Can. Com. J. (1867-8) 3, and all subsequent sessions. 129 E. Com. J. 12. Sen. S. O. I. ; Sen. J. (18(i7-8) 60, itc. ^Nlay, 47, 222. 2 Hatsell, 82. The resolution of the 22nd March, 1603, orders this procedure: " That the first day of every sittinjz, in every Parliament, some one bill, and no more, receiveth a fii"st reading for form's sake." » Can. Com. J. (1877) 10 ; lb. (1883) 15. ' * J 6. (1877)10; 76.(1883)15. 232 MEETING OF I'ARUAMICNT. of the house, \vheii important matters arc to come up for debate, aud time is required for the consideration of certain papers, the speech is not taken ud for several days.' It may, however, be immediat(3ly considered — and this is in accordance with the English i)ractice — after it has been reported to the house.^ When the speech has been ordered to be taken into con- sideration on a future day, it is the practice to move the formal resolution providing for the appointment of the select standing committees of the house, and to lay before the house the report of the librarian, or other papers;^ It is not deemed courteous to the Crown in the Canadian houses to discuss any matter of public policy before con- sidering the speech. In 1878, Mr. Barthe introduced a bill in reference to insolvency, bu.t withdrew it in deference to the wishes of the house until the address was adopted.^ Of course circumstances may arise when the liouse may consider it necessary to act otherwise.^ It is the usual practice in the English Commons to ask ques- tions, move addresses for papers, and to present petitions Avhile the address is under consideration,'' and in the ses- sion of 1882, when the debate was T)rolonged, public bills were introduced and discussed on the motion for leave before the address was agreed to.~ When the clerk has read the order of the day for taking into consideration the speech of the governor-general- ^ Can. Com. J. 1873. October sess., p. 119 ; matters relative to the •Canada Pacific Railway were then considered, and Sir J. A. Macdonald, premier, resigned. 2 129 E. Com. J. 13 ; 237 E. Hans. (3) 7, 59. The practice in the Enghsh Parliament is invariable. In 1822 an attempt was made to defer the consideration of the speech for two days, but without success. II. Todd, 295. 6 E. Hans. N. S. 27, 47 ; 72 lb. 60. =* Can. Com. J. (1867-8) 5 ; lb. (1873) Oct. sess. 119 ; lb. (1878) 14. * Can. Hans. (1878) 18-19. = 2 Hatsell, 308. « 137 E. Hans. (3) 156-158 ; E. Com. J. 1876. 2 Hatsell, 309 ; May, 48-9. ^ 266 E. Hans. 326, 342; 137 E. Com. J. 11, 16, &c. CONSIDERATIOX OF THE SPEECH. 233 as soon as the speech has been reported by the speaker, in case it is immediatel)^ considered — a resolution will be proposed for an address in answer. The government -choose two members to move and second the address, gen- erally two of the junior members/ In the English Commons these members appear in uniform or full dress ; but in the Canadian house this formality is very rarely observed. This resolution is read and agreed to like other resolu- tions." As a rule the question is put separately upon each paragraph of the resolution." When a paragraph has been again read and the question proposed by the chair, a general debate may take place on such paragTaph ;* or amendments may be proposed thereto.'' Members who have spoken on one paragraph may speak again on the question being proposed on a subsequent paragraph, which is obviously a distinct question.*' When the house has agreed to the resolution, it is referred to a select committee to prepare and report the draft of an address." This is simply a formal proceed- ing — the address having been previously drafted by the law clerk. When it is reported by the chairman, the members of the committee will rise and stand uncovered, whilst the clerk reads the first paragraph pro forma — the ' Can. Hans. (1878) 39, Mr. ^Nla.sson's remarks. 2 Can. Com. J. (1876) 54 ; Ih. (1877) 15 ; lb. (1883) IS. ^ lb. (1867-8) 11 ; lb. (1873) October session, 126 ; lb. (1875) 56. * lb. (1867-8) 11 ; lb. (1870) 16 ; lb. (1878). * lb. (1873) October s&ssion, 126, 128. The procedure in the EngHsh vCommons appears to be different ; the resolution is not read twice, but amendments may be proposed to any paragraph in the same form as amendments to other questions, when the speaker has projwsed the question for agreement in the resohition. ]\Iay, 223. 105 E. Com. J. 6 ; 129 lb. 13. « Pari. Deb. 1867-8. Remarks of Sir J. A. Macdonald as to the right of Mr. Howe to address the house a second time. Also, Can. Hans. (1878) Dr. Tupper, 95, 306. In the English house a general debate may take place on every amendment moved to a particular paragraph. 102 K Hans. (3) 7-1-219. ■ Can. Com. J. (1883) 15. 234 MEETING OF I'AIIIJAMKNT. reading of the whole address being unnecessary. The ad- dress is read a second time and agreed to, and amend- ments may be again proposed to any paragraph, on the second reading of the address ; but none may be moved after the question has been put from the chair for agree- ing with the committee in the address.' But under Canadian practice no amendments are ever proposed at this stage ; they are always i)rpposed on the resolution for the address. As soon as the address has been agreed to, it is ordered to be engrossed and presented to his Excellency by such members of the house as are of the queen's privy council.^ The next proceeding will be to move immediately that the house resolve itself on some future day into a committee to consider of supply and ways and means.'^ It may not be inappropriate to observe here that of late years there has been a disposition shown in the Canadian as well as in the British Parliament to limit the debate on the address as far as possible. The address is now framed in such terms as may avoid the necessity on the part of the opposition of moving any amendment or opening up a prolonged debate.^ It is felt that the ques- tions mentioned in the speech can be more conveniently discussed when the house is in full possession of all the information necessary to the consideration of any important subject. Sometimes, however, the house may be called upon to express its opinions at length, and to vote on an amend- ment to the address, which involves the fate of the gov- ernment of the day.^ But under ordinary circumstances 1 May, 200; 129 E. Ck)in. J. 29. Can. Com. J. (1867-8) 15 ; Ih. (1877) 17. 2 lb. (1876) 54, 55; lb. (1883) 18, 20. The practice of " engrossing " is no longer followed in the English Parliament nor in the Senate. Sen. J. (1883) 36. 137 E. Com. J. (1882) 46, 47, 54-2. =» Can. Com. J. (1877) 18 ; lb. (1883) 20. * Can. Hans. (1875) Sir J. A. Macdonald, p. 12 ; Can. Hans. (1878) remarks of the premier, Mr. Mackenzie, p. 36. lb. (1879) 16. 232 E. Hans. (3) 73, Marquess of Hartington. * Can. Com. J. (1873 October session), 120. In 1878 a very lengthy riiOCEEDINGS IN SUBSEQ VENT SESSIONS. 235 the desire is to pass the address with as little dela}' as possible, and to confine the debate to a general review of the policy of the government, without taking up those specific subjects on which the necessary information is not yet before the houses/ It is felt desirable to allow the address to pass without a division and " be in point of fact the unanimous and respectful expression of the deference with which the houses receive the first commu- nication of the session " from the sovereign or her repre- sentative.^ But of course whilst there is a growing disposition on the part of the houses in Canada and England to limit debate on the address, yet it is always open to any number of members to avail themselves of the great latitude that they have at this stage of discussing public matters. In the session of 1882, the address was debated in the English House of Commons for several days, in fact even to an inor- dinate extent ; ^ but the sense of the house is obviously opposed to these prolonged discussions, which are not likely to occur except under su.ch exceptional circum- stances as have existed for some time past to complicate the debates of the English Parliament. V. Proceedings in Subsequent Sessions.— In sessions, subse- quent to the first, the two houses assemble at the time appointed, with the speaker in the chair of each. Prayers will be read in each house, and new members may be introduced in the Senate in the manner described in chap- ter two. The Senate will then adjourn during pleasure^ ilebato took place on tlio address. The. tariff \vas one of the princiiial topics of discussion, and the ineouvenicnee of discussing it at that stago was evident from tlio fact that the same subject came u{) again on the liudget. In 1879 tlie atldress was agreed to in the afternoon of one day. In 1883 the debate did not continue l)eyond one sitting. ' II. Todd 2i)5-7 ; 2:52 K Hans (3) 45, 54, 5fi, 73. - 144 E. Hans. {?>) 22-44. I>ord Derliy, and Earl of Clarendon. •' The debate commenced on the 7th Fob. and did not close until the 18th. 236 PROROGATION OF PARLIAMENT. and, oil resuming-, the Commons will be summoned with, the usual formalities as soon as his Excellency, the Gover- uor-Creneral, has tak<'n his seat on the throne. The Com- mons being present at the bar, the governor-general will open Parliament with the usual speech, and the Commons •will then return to their house.' Before the speaker has announced the speech, it will be his duty to inform the house immediately of any notifications of vacancies in the representation, and to lay before it any returns, reports, or papers relative to the seats of members — all of which must be entered on the journals." The speech will then be taken up as in the manner previously described. VI. Prorogation.— The pro :-eedings at the prorogation of Parliament may now be briefly described. As soon as the business of the two houses is concluded, or so nearly concluded that there can bo no doubt as to the time of prorogation, it is customary for the governor-general, through his secretary, to inform the speaker of each house that he will proceed to the Senate chamber at a certain hour to close the session.'' On the day, and at the hour appointed, the two houses assemble, and as soon as his Excellency has taken his place on the throne the speaker of the Senate will command the gentleman usher of the black rod to proceed to the House of Commons and acquaint that house : — " It is his Excellency's pleasure they attend him immediately in this house." The ser- jeant-at-arms in the Commons will announce the message in the usual words : " A message from his Excellency, the Grovernor-G-eneral ;" and the speaker will reply : " Admit the messenger." The black rod presents himself in the way already described, and informs the house : ''I am commanded by his Excellency the G-overnor-G-eneral. to 1 Sen. J. (1877) 13-18 ; Com. J. 1871, 1877, &c. "" Can. Com. J. (1875)1-52 ; Ih. (1877) 1-9, &c. ^ Sen. J. (1878) 291 ; Ih. (1883) 282. Com. J. (1870) 352; lb. (1883) 435. PROCEEDINGS IN THE SENATE. 237 acquaint this honourable house that it is the pleasure of his Excellency that the members thereof do forthwith attend him in the Senate chamber." "When the messenger from the Senate has retired, the speaker will proceed with the Commons to the Senate chamber, and take his proper place at the bar. The clerk of the crown in chancery will then proceed to read the titles of the bills, and when these have been assented to, or reserved in the manner hereafter described,^ the speaker will make the usual speech in pre- senting the supply bill, to which the royal assent will be given in the prescribed words.- Then his Excellency the Grovernor-G-eneral, will proceed to deliver the speech cus- tomary at the close of the session. When his Excellency has concluded reading the speech in the two languages, the speaker of the Senate will say : " It is his Excellency the Grovernor-G-eneral's, will and pleasure that this Parlia- ment be prorogued until , to be then here holden ; and this Parliament is accordingly prorogued until ." The Commons then retire, and the ses- sion is at an end according to law.'^ At the end of a session, as we have just seen, the speaker of the Senate announces his Excellency's will and pleasure that Parliament be prorogued, but subsequently this is done in the " Canada Gazette," through the clerk of the crown in chancery.^ The governor-general may, however, with the advice of his council, summon Parlia- ment for the transaction of business at any time after the issue of the proclamation of prorogation.'^ When Parlia- ment has been dissolved and summoned for a certain day, it meets on that day for the despatch of business, if not previousl})^ prorogued, without any proclamation for that ^ Chap, on Bills. ^ Ih. on Supply. ' Sen. J. (1883) 292-98. Can. Com. J. (1883) 438-11. * See proclamations at commencement of Journals. Also, "Canada Gazette," Aug. 18, 1883. '" Journals (1879) ix-x. 238 PROROGA TION OF I'A IlIJA .VENT. purpose, the notice of such meetiii;^ being comprised in the ])rochunation oi" dissolution and the writs th(m issued.' The o-ovcrnor-g-enia-al will 1)0 always guided by British constitutional practice with respect to the prorogation and dissolution of Parliament, and when he declines the advice of his responsible ministers in such matters he intimates that he has no longer confidence in them and virtually dismisses them from his counsels." In old times of English parliamentary history, it was not unusual for the Crown to signify its pleasure that Parliament should be adjourned till a certain day ; but even then it appears that the house did not think itself bound to obey the sovereign's commands.''' But no case of this kind has occurred in England since 1814 ;' and none can now ever arise under the constitutional system which makes the ministry responsible for the acts of the Crown. In Canada, such cases have never occurred. "When it is sometimes found necessary, as in 1873, to have a long adjournment, ministers must assume the responsi- bility, and persuade the house as to the necessity of such a course.^ VII. Effect of Prorogation.— A prorogation necessarily puts an end, for the time being, to the functions of the legisla- tive body, as an adjournment is a continuation from day to day of the functions of each of its branches.'^ The legal effect of a prorogation is to conclude a session ; by which all bills and other proceedings of a legislative character depending in either branch, in whatever state they are at 1 May, 51. ^ See reply of Lord Dufferin in 1873 to a deputation of members of Par- liament Avho called on him to prorogue the houses contrary to the advice of his privy council. Com. J. (1873, 2nd. session) 31-32. =* 2 Hatsell, 317-321. May, 51. * 49 Lord's J. 747 ; 69 E. Com. J. 132. '" Despatch of Lord Dufferin ; Com. Jour. 1873, 2nd. sess., p. 16. ^ Cushing, 519. DISSOLUTION. 239 the time, are entirely termiRated, and must be commenced anew, in the next session, precisely as if they had never been begun/ In like manner a prorogation has the eflfect of dissolving all committees, whether standing or select.^ In the case of private bills, however, relief has been fre- quently granted to the parties concerned in promoting or opposing such measures, when a session of Parliament has been brought to a premature close on account of the exigencies of political conflict. This has been done by the adoption of resolutions, permitting such bills to be re- introduced in the following session, and by means of pro forma and unopx^osed motions advanced to the stages at which they severally stood when the prorogation took place.^ But such a procedure is only justifiable under cir- cumstances of grave urgency, and in view of an abrupt and premature termination of the session.' The House of Commons in England has never agreed to proposals that have been sometimes made to give the statutory power to either house of suspending a public bill, and resuming it in the ensuing session at the precise stage where it had been dropped.' Vni. Dissolution.— Parliament was formerly terminated on the demise of the Crown in Canada as in England.'' The legislature of Canada, in 1843, passed an act providing 1 2 Hatsell, 335. May, 49. 1 Blackst., 180. 2 5 Grey, 374 ; 9 lb., 350. Can. Com. J. [1873, 2nd. sess.] 16. ^ 1 Todd's Pari. Gov. in England, 247 n. 86 E. Com. J. (1831) part 2, p. 525. Mirror of P. (1841) 2303, 2346 ; 144 E. Hans. (3) 2209 ; 153 lb. 1528, 1607. Leg. App.J., August sess. oflS63, pp. 91, 93, 282, 288; 1865, Jan. seSB., pp. 226, 246. Todd's Private Bills 62, 63. * 180 E. Hans. (3) 692, 851. ^ 1 Todd's Pari. Gov. in England, 247 n. Coin. Pap. 1861, vol. xi, p. 439. " The Jjeg. Ass. of Lower Canada, on 24th April, 1820, on death of Geo. Ill ; on August 30, 1830, on death of Geo. IV. In Queen Anne's reign the rule that Parliament was ipso facto dissolved by the death of the sovereign was relaxed, and it was permitted to sit for 6 months afterwards ; and this restriction was swejit away by the Reform Act of 1867, so that the 240 ^fAxylCIi of DissoLvrxa parliament. that " no rarliamcnt of this province, summoned or called by our Sovereign Lady the Queen, or her heirs and succes- sors, shn.U determine or be dissolved by the demise; of the Crown, ]mt shall continue to meet, notwithstanding such tttnnise.' ' This act was re-enacted in the first session of the rarliament of the dominion of Canada.^ Parliament may be dissolved at any time by the Crown, under the advice and consent of the privy council. It is the rule in Canada as in England, when it is intended to dissolve Parliament, first to prorogue it to a certain day ; and then, at some intermediate period, to issue a proclamation discharging the members of both houses from their attend- ance on that day, and formally dissolving Parliament;^ demise of the Crown will in future have no effect whatever on the con- tinuance of the Parliament then in being (30 and 31 Vict., c. 102, s. 51). Taswell-Langmead, 735-6. ' 7 Vict., c. 3, s- 1. Cons. Stat, of Canada, c. 3. 2 31 Vict, c. 22, s. 1. ^ See Journals for 1873, 1S74, 1879, 1883, at beginning of vols. The reasons of this old English usage, according to Hatsell, (II, 383) are pro- bably those suggested by Charles I in his speech, in 1628 : — " That it sliould be a general maxim with kings, themselves only to execute pleasing things, and to avoid appearing personally in matters that may seem harsli and disagreeable." CHAPTER VII. ORDER OF BUSINESS. I. Days and Hours of Meeting. — II. Adjournment over Holidays and Festivals. — HI. Long adjournments— IV. Decease of Senators and Members. — V. Meeting at an earlier hour — Two sittings in one day. — VI. Protracted Sittings.— VII. Proceedings at six o'clock and half-past seven p.m. — VIII. Adjournment during pleasure. — IX. Quorum in both Houses. — X. Prayers. — XI. Order of Daily Business. — XII. Calling of Questions and Orders. — XIII. Arrangement of Orders. I. Days and Hours of Meeting.— The Senate and House of Commons meet every day at three o'clock in the afternoon, except on Saturdays.' The houses sometimes meet on Saturdays, or at an earlier hour, towards the close of the session, when the work of the committees is nearly concluded, and there is a general desire to facilitate the progTess of public business. The leader of the ministry in either house should always give notice of his intention to ask the members to sit on Saturdays ; and the motion should also state the order of business ; that is to say, whether government or private measures are to have pre- cedence.^ n. Adjournment over Holidays.— The houses generally adjourn over certain statutory holidays and festivals, or holy days observed by religious bodies. These days are : Ash-Wed- nesday ;^ Ascension Day ;' Corpus Christi f Annunciation f ' Sen. R., 3, and Com., R. 1. 2 Can. Com. J. (1877), 227 ; Ih. (1878), 186, 220 (earlier hour). ^ lb. (1870), 31 ; Ih. 1871, 1875, 1876, 1877, 1878, 1879, 1881. * lb. 1869 ; //). 1873 ; lb. 1878 ; lb. 1883. * Ih. (1869), 137. « lb. (1870), 107; Ih. 1873 ; Ih. 1878 ; lb. 1879 ; lb, 1880. 16 242 OUDKIl OF BUSINESS. Good Friday ;' Easter Monday f Queen's Birthday.' The House of Commous has sat on Easter Monday, when it has been necessary to close the business of the session expedi- tiously.' It is the practice to make the following formal motion, in case of a proposed adjournment, some time in the course of the day before the speaker leaves the chair : "That when this house adjourns this day, it do stand adjourned till next."^ In 18V2 the houses adjourned over the day appointed to give thanks for the recovery of the Prince of Wales. '^ TTT Long Adjournments.— During the first session of the Par- liament of the dominion, the houses adjourned from the 21st of December to the 12th of March, in order to give full opportunity to the government to consider and complete all the measures necessary to the inauguration of a new constitutional system. In such, a case, it is usual for the governor-general to come down on or before the day of adjournment, for the purpose of assenting to all the bills that have passed the two houses." In 1873 the houses adjourned from the 12th of May to the 13th of August in order to receive the report of a committee appointed by the Commons to inquire into certain m.atters connected with the construction of the Canadian Pacific Railway.* ^ Can. Com. J. (1870), 181, invariable every session. ^ lb. (1870), 196 ; lb. (1883), 147. » lb. (1867-8), 122 ; lb. (1872), 163 ; lb. (1883), 435. The Senate in 1883 met on the Queen's Birthday on account of the urgent state of the pubUc business. The house adjourned during pleasure on the previous day and met on the Queen's Birthday by general consent. Sen. Hans., pp. 657, 658. No entry consequently is made of the meeting on. that day. Jour, p. 288. * The house sat on Easter Monday in 1877 and 1878. ^ Can. Com. J. (1867-8), 122 ; lb. (1877), 25. In case it is decided not to sit in the evening for some special reason, it is usual to make a formal motion to that efi'ect before the speaker leaves the chair at 6 o'clock. Can. Com. J. (1880-1), 92 ; Gov.-Gren's levee, Hans. p. 485. 6 Sen. J. (1872), 24 ; Com. J., p. 8. ' Can. Com. J. 1867, Dec. 21. « lb. (1873), 423, 436, 437. DECEASE OF MEMBERS. 243 There was a secoud session of Parliament during the autumn of the same year. Again in December, 1880, the houses met for the purpose of considering the contract for the construction of the Canadian Pacific Railway, and adjourned from the 24th of the month to the 4th of January, 1881. The houses did not sit on the Epiphany when they resumed business. IV. Decease of Members.— It was the practice in the Senate up to a very recent date to adjourn the house out of respect to a deceased senator ;^ but this is now done only in very exceptional cases. The house adjourned, for instance, on the death of Mr. Christie, formerly speaker, and two senators were named to attend the funeral.- The Senate has also more than once adjourned to show respect to the memory of a distinguished member of the House of Commons.' But though the Senate does not now adjourn under ordinary circumstances, a member may refer in appropriate terms to a deceased senator.^ It was formerly also the usage for the House of Com- mons to adjourn when it was informed of the decease of a member.^ In 1868, the house adjourned on the news of the assassination of Mr. McGree, whilst on his way home from the Commons.'' The house has also adjourned to give an opportunity to members to attend the funeral of some distinguished person, who was not at the time a member.^ The old practice of adjourning the House of Commons on the death of a member has been discontinued ■' Sen. Deb. (1871), 6-8 ; Ih. (1872), 14 ; lb. (1873), 233-235, &c. Jour. (1872), 29, &c. ■^Sen. Hans. (1880-81), 44-45 ; Jour. pp. 3!), 40. On this occasion Mr. Scott referred to the practice of the Senate. ^ D'Arcy McGee, 18()7-8. Sen. J. p. 213 ; Sir George E. Cartior, 1873, Debates, p. 284 ; Jour., p. 30(). * Sen. Hans. (1880), 211 (death of Sen. Seymour.) s Can. Com. J. (1870), 114, 175 ; Pari. Deb., p. 718. "Can. Com. J. (1867-8), 186. ' Ih. (1869), 100 ; H. J. Friol, :\rayor of Ottawa. 244 ORDEii or r.rsiNESS. siiico 18Y1,' and hash(MMi only revived in a very excep- tional case — that of Mr. Helton, a very prominent and respected member, w^lio died suddenly during the session of 1880."- In a subsequent session the oxpediency of adhering to the practice of the English Parliament except imder extraordinary circumstances was strongly urged by leading members on both sides of the house.' V. Two Sittings on one Day.— If it is intended to meet earlier next day, a formal motion should be made previous to the adjournment of the house, as in the case of holidays or church festivals.' Sometimes the house adjourns at six until half-past seven o'clock, in order to have two sittings on the same day ;' in some cases, three distinct sittings have been had on one day.'' When election committees met before the passage of the act providing for the trial of controverted elections by the judges, the house was frequently adjourned for a few minutes in order to enable those committees to assemble in accordance with law.'^ VI. Protracted Sittings.— The House of Commons sits very frequently after midnight, and when it does so the fact must be recorded in the journals.^ It has been attempted several times to limit the sitting of the house to a certain hoiir every night, but the motion has been withdrawn ' Pari. Deb. 1872, p. 181 ; remarks of Sir J. A. Macdonald, on the occa- sion of the death of Mr. J. Sandfield Macdonald who had himself urged a change of practice in this particular. ■' Can. Com. J. (1880), 137 ; Hans. p. 649. ^ Can. Hans. (1880-1), 223-4. For recent cases of adjournment of the English house ( death of Mr. Wykeham Martin in the library, in 1878, &c.,) see ]May, 241-2. Both houses adjourned after the assassination of Lord Cavendish and Mr. Burke ; 269 E. Hans. (3), 315, 319. * Can. Com. J. (187(i), 226 ; Ih. (1871), 221, 256, 275, 298; Ih. (1878), 220. ^ Ih. (1867-8) 59, 80, 315 ; lb. (1878), 292. The same course has been followed in the Senate. Jour. (1880), 234. 8 Leg. Ass. J. (1866), 355. . ' Can. Com. J. (1867-8), 207, 218, 301. Cons. Stat. c. 7, 6. 79. 8 Can. Com. J. (1877), 98. Ih. (1878), 283, etc. PROTRACTED SITTINGS. 245 wlien leading members on both sides have shown that it is practically impossible to carry it out on all occasions/ In 18^*7, a sort of understanding was arrived at that the house should adjourn at or near midnight, whenever it could be done without interfering with the progress of business be- fore the house ; but even this understanding could never be carried out." In the old Canadian legislature the house satin 1858 from 3 o'clock on the afternoon of May 25 till 6 o'clock in the evening of the following day. On this occa- sion Mr. Speaker decided that the orders of the 25th of May must be proceeded with after 3 o'clock p.m. on the 26th of May, as there had been no adjournment since the previous day, and no new meeting of the house under the first rule.^ In the following year, the house sat still longer, for nearly 39 hours, with two intermissions at six o'clock p.m, on each da5^^ The House of Commons also sat from three o'clock on Friday to six p.m. on Saturday evening, on the occasion of an exciting debate with respect to the constitutionality of the action taken by Lieutenaut-Grovernor Letellier de St. Just in the winter of 18 Y8, when he dismissed the de Boucherville ministry in the province of Quebec^ The English Parliament has occasionally met on Sun- days, but only in cases of grave necessity.*^ On one ^ Can. Hans. (1877), Feb. 19 ; lb. (1878), 393-5. 2 Ih. (1878), 393. ' Speak. D. 28. Journals, pp. 50G-515. * Seigniorial Tenure Resolutions, April 14 and 15, 1859. * April 12th and 13th, 1878. On this occasion the house was a scene of •great disorder ; the oi)position l)eing determined to debate the ension act (Ireland), Feb. 18th, 1866. Tlio house sat into Sunday, on 3rd -Inly, ISSO, and on several occasions since then. 246 ORDER OF BUSINESS. occasion sinre 186Y the Commons of Canada sat over Saturday until nearly one o'clock on Sunday morning.' Vn. Proceedings at 6 o'clock and half-past 7 p.m.— As soon as six o'clock arrives during a sitting, and it is intended to continue business in the evening, the speaker leaves the chair, and resumes it at half-past seven o'clock. The rules of the two houses on this point are the same : ^ "If at tlic hour of six o'clock p.m., the business of the house be not concluded, the speaker shall leave the chair until half-past seven " No record is made of the fact in the journals, for the mace is left on the table, and the house is considered still in session. If the house is in committee of the whole, the speaker takes the chair at six and makes the usual announcement : " It being six o'clock, I leave the chair."^ The speaker will take the chair at half-past seven o'clock, and call on the chairman to resume. In case private bills are fixed for the first hour after half-past seven (R. 19) they must be first disposed of, and then the committee resumes. ^ VJ-U. Adjournment during Pleasure.— The Senate and Com- mons also sometimes suspend a sitting during pleasure, or with an understanding that they resume at a cer- tain hour. This is done constantly at the close of a session, whilst one house is waiting for messages from the other.^ As the house is technically in session — the mace being on the table as at six o'clock — no entry is made of the fact in the Commons' journals \^ but it is always recorded in the Senate minutes.^ But every formal motion ^ Can. Com. J. (1870), 237 ; interest bill. *Sen. R. 4; Com., 2. =* Can. Com. J. (1874), 113 ; Ih. (1878), 118-121; Ih. (1883), 153, 223. * Sen. J. (1867-8), 100, &c. See mpra, 242 n. (Queen's Birthday). 5 May, 241. «Sen. J. (1877), 309. QUORUM. 241 for adjournment — even for half an hour' — must be entered as well as the time at which the House of Commons ad- journs every sitting after midnight.- IX. Quorum —By the 3oth and 48th sections of the British North America Act, ISGY, it is provided that the presence of at least 15 Senators and 20 members of the House of Commons, including the speaker, shall be necessary to constitute a meeting of either house, for the exercise of its powers. Both houses have standing orders on this matter. Under the orders of the Senate, it is provided : "5. If thirty minutes after the time of meeting, 15 senators, including the speaker, are not present, the speaker takes the chair, and adjourns the house till the next sitting day ; the names of the senators present being taken down by the clerk." ^ " 6. When it appears, during the sitting of the Senate on notice being taken that fifteen senators, inchiding the speaker, are not present, the senators who may be in the adjoining rooms being previously summoned, the speaker adjoui*ns the house as above, without a question first put." The standing orders of the House of Commons are as follows : " 1. The time for the ordinary meeting of the house is at three o'clock in the afternoon of each sitting day ; and if at that hour there be not a quorum, !Mr. Speaker may take the chair and adjourn." " 4. Whenever the speaker shall adjourn the house for want of a quorum, the time of the adjournment and the names of the members then present, shall be inserted in the journal." Accordingly when the attention of the speaker has been called to the fact that there is no quorum present, he will proceed at once to count the house, and if there are not 1 Can. Com. J. (1870), 13. 2 lb. (1877), 237 ; lb. (1878), 224 ; lb. (1883), 317. 137 E. Com. J. 440. ' In the House of Lords, only three lords may constitute a quorum, May, 235. 248 ORDER OF BUSINESS. twenty members present, including himself, the clerk will take down the names, and the speaker will then adjourn the housi; without a c[U(\stion first put until the usual hour on the next sitting day.' If it should appear, after a division, that a quorum is not present, the house should be adjourned immediately ;- but when it is found in committee of the whole that twenty members are not in the house, the committee must rise, and the chairman report the fact to the speaker, who will again count the house, and when there is not a quorum, he must adjourn the house forthwith ; while the house is being counted the doors remain open and members can come in during the whole time occupied by the counting.'^ A " count out " will always supersede any question that is before the house ; and if an order of the day for supply, or for the reading or committal of a bill be under consideration at the time, and there is no quorum present, the house must be asked at a subsequent sitting to reyire the question that may have lapsed in this way/ A " count out " is of con- stant occurrence in the English House of Commons f but only one case has happened in the Canadian Commons since ISG'T.' X. Prayers.— Like ihe old legislative councils of Canada, the Senate have always opened their proceedings with prayers, and a chaplain is appointed by the governor- general for that purpose." He reads the prayers as soon 1 Can. Com. J. (186&), 243. 2 23 E. Com. J. 700 ; Ih. 845. ' May, 237. * 131 E. Com. J. 391, 329 ; forfeiture relief bill, ordered to be considered on a future day. 235 E. Hans. (3), 203 ; 131 E. Com. J. 282-3, Com. of supply. 137 Ih. 18, 297, 306, 483. ^ On Tuesdays and Fridays, sess. of 1873, 14 times ; Pari. P. 1873, vol. 53, p. 1. In 1882, 20 times ; Jour. vol. 137. ^ In 1869, Jour. p. 243. Several cases can be found in the journals of the legislative assembly of Canada (1858), 231 ; (1861), 342 ; (1865, Aug. Sess.), 110. ' Supra, IX 160. PRA YERS. 249 as the speaker takes the chair, and before his Excellency presents himself in the chamber at the opening of Parlia- ment/ The old legislative assembly of Canada never com- menced its proceedings with prayer ; ^ and it was not until the session of 187Y that steps were taken in the Canadian House of Commons to follow the example of the British house in this particular. On motion of Mr. Mac- donald of Toronto a committee was appointed to consider the subject, and it reported a form of prayer which appears in the appendices to this volume and is read by the speaker every day, before the opening of the doors. The report '^ which was adopted neni. con. recommends that " the aforesaid form of prayer be read by Mr. Speaker in the language most familiar to him." * Mr. Speaker Blan- chet read the prayers in English and French on alternate days. In accordance with English practice, at the commence- ment of a new Parliament, the speaker reads prayers on the day following his election, and before the causes of summons are announced. ^ In subsequent sessions the prayers are said as soon as the Commons meet in their chamber, before going up to the Senate in obedience 1 Sen. J. (1874), 13 ; lb. (1878), 14 ; 76. (1879), 16 ; lb. (1883), 13. The clerk assistant has read the prayers in the absence of the chaplain. '■' But the legislative assembly of Upper Canada had a chaplain who read prayers daily, Upp. Can. J. (1792), 8. The P. E. Island, New Bruns- wick, and Nova Scotia legislatures have also had a chaplain for many years. But in 18S1 the si)oaker was authorized in the Nova Scotia as- sembly to discharge the duties of chaplain and a form of prayer was adopted, N. S. Jour. (1881), 5. In the New Brunswick assembly, prayers are read by the speaker in the absence of the chaplain. K. 38. 3 Can. Com. J. [1877], 26, 42. * This was added at the instance of tlie Frcnch-s]Xiaking members of the house. Hans. [1877], 95. 5 May, 204, 219 ; 121 E. Com. J., 9 ; 129 lb., 5. Can. Cora. J. [1879], 2; lb. [1883], 2. Mr. Anglin read prayers after his return from the Senate •Chamber in 1878, when he was re-elected speaker. 250 ORDER OF BUSINESS. to the command of her Majesty's representative.^ In case of a vacancy in the office of speaker during a session of Parlia- ment, prayers are only read after the; election of a new speaker and before the house proceeds to the upper chamber.^ XL Order of Business. — It will now be fou.nd most conve- nient to give some explanations of the manner in which the business of the houses is transacted every day. The order of daily business after prayer in the Senate is as follows, under rule 12 : Presentation of petitions. Heading of petitions. Presenting reports of committees (not inchided in rule.) Notices of motions (this includes questions). Motions (of which notice has been given). Orders of the day. Orders of the day for the third reading (rule 45), take- precedence of all others, except orders to which the Senate may have previously given priority. The orders (rule 13) which, at the adjournment, have not been proceeded with, are considered as postponed until the next sitting day, to take precedence of the orders of the day, unless otherwise ordered. The orders are taken in their regular order, though government orders, by consent, are generally allowed the precedence. Motions and orders are generally allowed to stand in the Senate when not taken up after being called. They are rarely dropped in the absence, or without the consent, of the member who has them in charge. In the House of Commons, as soon as the speaker takes the chair, he calls the house to order, and then standing up, proceeds to read the authorized form of prayer,^ all 1 May, 219 ; 137 E. Com. .1., 1 ; Can. Com. J. [1882], 1. In lSSO-1 it was necessary to follow the precedent of 1878, on account of the early arrival of the governor-general. - 127 E. Com. J., 23, 24 ; election of 3Ir. Speaker Brand. ^ See appendix. OBDER OF BUSIXESS. 251 tlie members Tising and remaining' with their heads un- covered, until the prayers are concluded. Then the speaker orders that the doors be opened, unless it is pro- posed to discuss some matter of privilege or of internal economy with closed doors. The routine business is next taken up in the order prescribed by rule 19 : Presenting petitions. Heading and receiving petitions. Presenting rej)orts by standing and select committees. Motions. The same rule also arranges the order of business, after daily routine, on the following days : Monday. Private bills. Questions put by members. Notices of motions. Public bills and orders. Government notices of motion. Government orders. Tuesday. Government notices of motions. Government orders. Public bills and orders. Questions put by members. Other notices of motions. Private bills. Wednesday. Questions put by members. Notices of motions. Public bills and orders. (From half-past seven o'clock, p.m.) Private bills for the first hour. Public bills and orders. Government notices of motions. Government orders. 252 ORDER OF BUSINESS. Thursday. Questions put by members. Public bills and orders. Notices of motions. Government notices of motions. Government oi-dei's. Fill DAY. Government notices of motions. Government orders. Public bills and orders. Questions put by members. Other notices of motions. ( From half-past seven o'clock, p.m.) Pi'ivate bills for the first hour. Each member of the Senate aud House of Commons is provided every day vvath a f)rinted sheet, in v\"hich the business of the day is arranged in accordance with the rules and orders. In the Commons a special order paper is provided ; in the Senate the business of the day is stated at the end of the minutes of proceedings. Xn. Calling of questions and orders.— Up to the session of 1876, when the rules were amended, questions and notices of motion were constantly allowed to stand in case mem- bers were absent or were not prepared at the moment to proceed with them ; but great inconvenience and loss of time resulted from so irregular a procedure,^ and the con- sequence was the adoption of the following rule : " Questions put by members, notices of motions, and orders (other than government notices of motions and ordei's), not taken up when called, shall be dropped. Dropped orders shall be set down in the Order Book, after the orders of the day for the next day on which the house shall sit." ^ Can. Haus. [1S75], 1088. ARRAXGEMEXT OF ORDERS. 253 This rule is now rigidly enforced. If a member is absent when the speaker calls the question or notice of motion which the former has pnt on the paper, it disap- pears, and he must again give notice if he wishes to pro- ceed Avith the matter.' In case, however, of an order of the day, it will go down to the foot of the orders of the next sitting day, in accordance with the foregoing rule. XIII. Arrangement of Orders.— The orders of the day are divided into "government orders" and "public bills and orders." All government measures appear in the former ; all motions and bills in the hands of private members appear in the latter. The 24th rule regulates the order in which such questions are to be taken up : " All items standing on the orders of the day, shall be taken up according to the precedence assigned to each on the Order Book; the right being resei-ved to the administration of placing government orders at the head of the list, in the rotation in which they are to be taken on the days on which government bills have precedence."- Public bills and orders are always taken up in their regular order ; but it has generally been the practice to call government orders according to the convenience of ministers. It is, of course, open to any member to object and enforce the above rule.^ As soon as an order of the day has been called by the speaker, and read by a clerk at the table, the member having charge of the bill or question, will make the motion he proposes in reference thereto ; and no other 1 Can. Hans. [1876], 907. lb. [1878], 393. It is usual, however, to per- mit motions to remain on the paper, when the government desire it. This understanding was arrived at by the committee who revised the rules in 1876. Remarks of Sir J. A. Macdonald on Mr. Dewdney's motion, Hans. [1878], 1878. Mr. Christie's motion in respect to the observance of the Sabbath, February 24, 1879. Also, Can. Hans. [1879], 1762-3. 2 This is identical with the English S.O., No. xlii. ^ Can. Hans. [1875], 108S. lb. [1877], 842 ; Sir J. A. :Macaonald. 254 ORDER OF BUSINESS. member has the right to interpose unless with his consent/ When an order has been read, however, a petition may be presented in connection with the subject under consider- ation ; but not (ifler a motion in relation thereto has been proposed in due form.^ The following are the standing orders of the Commons with respect to the arrangement of bills on the order paper : "20. Orders of the day for the third reading of bills shall take precedence of all other orders for the same day except orders to which the house has previously given priority." ^ "21. Bills reported from committees of the whole house, with amendments, shall be placed on the orders of the day, for con- sideration by the house, next after third readings." "22. Bills reported after second reading from any standing or select committee, shall be placed on the orders of the day following the reception of the report, for reference to a committee of the whole house, in their proper oixler, next after bills reported from committees of the whole house. And bills ordered by the house, for reference to a committee of the whole house, shall be placed, for such reference, on the orders of the day following the order of reference, in their proper order, next after bills reported from any standing or select committee." " 23. Amendments made by the Senate to bills originating in this house, shall be placed on the orders of the daj^, next alter bills reported on by standing or select committees." If a bill on the order paper is taken up and the debate thereon adjourned, it does not go to the foot of the list of the next day, but keeps the proper place to which it is entitled under the rules just cited, with respect to the precedence of bills at different stages.* In this respect 1 May, 285. 159 E. Hans. (3), 26. 2 185 Ih., 1091-93. 3 Also, Sen. R., 45. * Orders of the day, Mr. Charlton's Bill (No. 13), respecting adultery, <&c., 20th and 21st March, 1883. The debate was adjourned on the ques- tion for the consideration of the bill as amended ; and it was kept at the head of the list, two bills for the third reading alone having precedence under the 20th rule. Hans., p. 287. PRECEDENCE GU'EN TO ORDERS- 255 bills occupy a more favourable positiou thau ordiuary motions, which, when the debate is adjourned, go to the foot of the order paper/ Sometimes towards the close of the session, bills reported from select or standing committees are placed immediately (by general consent only) on the order paper for considera- tion in committee of the whole.^ The houses frequently agree to give precedence to an important question, and in that case a special order will be made. For instance, the order for the second reading of an insolvency bill on a particular day has been discharged, and made the first order on a subsequent day, ' Sometimes the house will give precedence to several orders at the same time, when they refer to the one question.^ Or it may consent to suspend rule 19 in order to take up a question. ' Motions in the hands of private members are sometimes taken out of their regular place and placed on the govern- ment orders for consideration. This was done in 18*73, in the case of a motion for the adoption of a report rela- tive to parliamentary printing.'' In 1879, a notice of motion was given precedence on the order paper.' Public bills and orders are also sometimes given precedence over notices."* It may sometimes hapj)en that a public bill will be considered of sufficient importance to cause it to be ^ Orders of the day, Mr. Casey's motion respecting a claim for gravel, 30th April and 1st May, 1883- Rule 27 regulates motions {infra p. 257) and gives precedence to certain stages of bills. '' Can. Com. J. [1877], 188. ^ Can. Com. J. (1877), 39 ; lb.. 233. In the latter case a day set apart by the rule, and generally devoted in its entirety to notices of motions, was given up to the consideration of an important question. Also, Sen. J. (1867-8), 179, 280. lb. (1880), 85-6. A question respecting an election l)etition has been given precedence as a matter of privilege. Com. Jour. (1880-1), 164-5. * Can. Com. J. (1874), 20 ; re Louis Kiel, expelled. s lb. (1867-8). 247. « lb. (1873), 370. ' Mr. Fortin's motion resjxjcting fisheries ; Can. Com. J. (1879), 337. » Can. Com. J. (1879), 311-2, 337. 256 OUDEIi OF BUSINESS. placed on the government orders, in the name of a minister. This was done in the session of 1878, on the recommen- dation of the committee on banking and commerce, in the case of a bill, introdnced by Mr. Blake, to make provision for the winding up of insolvent incorporated fire or marine insurance companies.' The same course was taken with reference to two other equally important measures — one to amend the act respecting the adulteration of food and drugs ;^ the other respecting crimes of violence."* Such motions, however, can only be made with the general assent of the house.' As a rule, the public bills and orders must be moved in their proper order, thoiigh the house may sometimes consent towards the close of the session, when there is little prospect of going through all the private business, to take a bill out of its order and advance it a stage, but this is only done when there is no intention to debate the bill.' If it is wished to transfer a bill from the public bills and orders, the regular course is to give two days' notice of a motion to that efiect.'' The rule which requires a strict adherence to the order paper is absolutely necessary to prevent surprises. So rigorously is it enforced in the Imperial Parliament that even when it has been admitted that a day has been named by mistake, and no one has objected to the appointment of an earlier day, the change has not been permitted.^ It is quite irregular, even if a member proposes to conclude ^ Can. Com. J. (1878), 148. 2 Ih., 198. 3 lb., 232. Also, Insolvency Bill, 1879. p. 271. * See chapter xi., s, 3. 5 Building Societies' Bill, April 2-4, 1878. « Railway Passenger Tickets Bill. Votes and P. (1882), 374 ; Jour., p. 334. In this case the government took charge of the bill. In an ordinary case the motion goes on the list of private business, and towards the end of a session a member may never reach it. " May, 281-2 ; 118 E. Com. J., 237 ; 172 E. Hans. (3), 246 ; Can. Com. J. (1875), 177. ORDERS XOT DISPOSED OF. 257 with a motion, to introduce and attempt to debate a subject which stands on the orders for another day.^ Under a rule of the house : " 26. All orders undisposed of at the adjournment of the house shall be postponed until the next sitting day, without a motion to that effect." But if the house be adjourned before an order of the day under consideration is disposed of, or a motion has been made for the adjournment of the debate thereon, " it is not treated as a droj^ped order, but being superseded must be revived before it takes its place again on the order book." " If a motion is not made for the second reading or other stage of a bill, it does not go on the orders, and it will be consequently necessary for the member in charge to take the first opportunity he has for placing it on the paper. The house will always give its consent to this formal motion which is not unfrequently necessary in the Senate, in the case of Commons' bills coming up in the absence of the member who is to promote its passage.'' If a member rises to propose a motion of which he has given notice, and the speaker leaves the chair at six o'clock before he has concluded his speech, and proposed his motion, it will remain in the same place on the order paper.* But it is more usual when the member cannot conclude his speech in time, to hand it to the speaker at once, so that it may be formally proposed and entered on the public bills and orders under the 2Yth rule. " K at the hour of 6 p.m., on a Wednesday or Thursday, or at 1 219 E. Hans. (3), 1002, 1053^ ; 225 lb., 1824. 2 May, 284. 119 E. Com. J., 131, 256 ; 120 lb., 225, 352 ; 121 lb., 78 ; 122 lb., 377, 404. ■' Sen. Hans. (1883), 179, 226 ; Jour., pp. 134, 146. * Reciprocity Treaty ; Order Paper, March 15, 1875. On :May 13, 1874, Mr. Bowell rose to move a motion rcs{Xicting dismissals from ollicc, but before he had concluded and handed his motion to the six^akor six o'clock was announced. The motion remained in tlio same place. Pari. Deb., 97, 105. 17 258 ORDER OF BUSINESS. the time of the adjournment of the house, a motion on the notice paper be under consideration, that question shall stand first on the order of the following day next after orders to which a sf)ecial precedence has been assigned by rule or oi-der of the house." ^ Towards the close of the session, with the view of advancing the most important business, the government usually appropriate to themselves one or more of the days devoted to notices of motions, public bills and orders, and other matters in the hands of private members. They must, however, give formal notice, and obtain the consent of the house to a motion, the effect of which is to suspend the nineteenth rule, cited on a previous page.- ^ Can. Com. J. (1876) ; Financial Depression Committee, 65, 66. See Orders of the Day, Chinese question, 29th and 30th March, 1883. Monday (a notice of motion day) is not included in this standing order. When on that day a motion has been under consideration, it has been the practice to move an adjournment of the debate previous to tlie adjournment of the house. Can. Com. J. (1871), 51 ; lb. (1872), 135. ■' Can. Com. J. (1877), 111, 227, 258 ; lb. (1878), 59, 118, 186, 226, 262 ; lb. (1879), 156, 252, 380, 413 ; lb. (1883), 387. See Sen. J. [1882] 318 for an instance of " urgency " being given to government measures in tlie Senate. CHAPTER VIII. PETITIONS. I. Presentation and reception. — II. Form. — III. Irregularities. — IV. Peti- tions for pecuniary aid. — V. For taxes or duties. — VI. Urgency in certain cases. — VII. Printing. — VIII. Reflections on House or mem- bers. — IX. Petitions to Imperial authorities. I. Presentation and Reception.— The ordinary daily busines.s iu the two houses commeuces with the presentation and reading of petitions/ of which a great number on various questions of public policy or individual concern are pre- sented in the course of every session. The subjects em- braced in these petitions are of A^ery varied interest. Whenever there is a great question agitating the public mind, the table of the House of Commons especially is immediately covered with petitions on that subject,- No doubt the privilege is often abused and unscrupulous or energetic agents labour to deceive Parliament ; but not- withstanding such abuses of a highly prized privilege, Parliament affords every opportunity to individuals to bring before it in this way their opinions and grievances, and is often able to obtain from such expressions valuable information which enables it to remedy personal wrongs, or mature useful legislation on some great question of general import. ' Supra p. 251. Sen. R., 12 ; Com. R., 19. ^ See index to Son. and Com. J. for 1S74, Prohibitory Liijuor Law ; and Protection to Native ^Manufactures in lS7(i. Also, ( 'an. Hans. (1S77), llL'S, showing number of petitioners from each i)rovint-i» in favour of prohibi- tion ; a total of 500,000 names in 1874. 260 FErmoxs. The ruloK in the two houses with respect to pr-titions are virtually the same, and whenever there is a diflerence in practice it will be pointed out in the course of the fol- lowing remarks on the Commons' procedure which is strictly carried out. Routine business in the Senate and Commons com- mences with the presentation of petitions.' When the speaker has called the house to order, after the doors have been opened, he will proceed to ask for the presentation of petitions. Then the members who have any such to present will rise, and after briefly stating the purport of the document in accordance with the rule, they will send it to the table, where it is taken charge of by one of the clerks. Every member should be careful to endorse his name on the back, as confusion sometimes arises when many petitions are presented at the same sitting. The rules of the House of Commons are as follows : " 84. Petitions to the house shall be presented by a member in his place, who shall be answerable that they do not contain im- pertinent or improper matter." ^ " 85. Every member offering to present a petition to the house shall endorse his name thereupon, and confine himself to a state- ment of the parties from whom it comes, the number of signa- tm'es attached to it, and the material allegations it contains. Petitions may be either wi-itten or printed ; provided always that the signatures of at least three petitioners are subscribed on the sheet containing the prayer of the petition." '' 86. Every petition not containing matter in breach of the privileges of the house, and which, according to the rules' or practice of this house, can be received, is brought to the table by direction of the speaker, who cannot allow any debate, or any member to speak upon, or in relation to, such i3etition ; but it may be read by the clerk, at the table, if required ; or if it com- plain of some present personal grievance, requiring an immediate 1 Sen. E., 12 ; Com., 19. 2 228 E. Hans. (3), 1320 ; 229 lb., 586. 3 These are substantially the S. 0. adopted in 1S42 in the English Com- mons ; May, 618. PRESENTATION AND RECEPTION. 261 Temedy, the matter contained therein may be brought into imme- diate discussion. A senator, iu presentiRg a petition, may briefly explain its general purport, biit other members may not proceed to discuss its contents/ The practice of the House of Lords appears different. A member may not only make a. long speech on the presentation, but a debate may follow on the subject-matter." In the House of Commons every petition is deposited in the journal's office, in charge of an officer, whose duty it is to see that it is properly endorsed and in accordance with the rules of the house.^ It is brought to the table to be read and received two days after the pre- sentation. A list is made up of the petitions that have to be received every day, and given to the speaker, with a memorandum of any infringement of the rules govern- ing the reception of such documents. The clerk assistant reads the brief endorsation and the speaker puts the ques- tion — " Is it the pleasure of the house to receive these petitions " — when the reading of the list is completed. In €ase of any irregularity, he will state it to the house, and rule that the x^etition cannot be received.^ It is the duty of every member presenting a petition to make himself, in the first instance, acquainted with its terms, and see that it is, in its language and expressions, consistent with the Tules and orders of the house.^ 1 Sen. Deb. (1876), 93, 96. lb. (1880), 293. 2 140 E. Hans. (3), 706-15 ; 808-14. In the English Commons all debate on the presentation of petitions was first forbidden in 1839 ; May's Const Hist., II., 09 ; 94 E. Com. J., 16 ; 45 E. Hans. (3), 156, 197. The Lords did not, however, change their practice. ' In the English Commons all jxjtitions " after they shall have l)eon ordered to lie on the table, are referred to the committee on pnhlic peti- tions, without any question being jnit." S. 0. 79 ; ]\Iay, 618, 620 ; 132 E. Com. J., 41, &c. *Can. Com. J. (1877), 27; lb. (1879), 21, 32, etc. Se« "petitions" in index to journals. * 228 E. Hans. (3), 1320. 262 PETITIONS. In case of opposition to the reception of a petition, a debate may take place as soon as the speaker has formally proposed the motion that it be received. In such a case it is usual for the member who has charge of the petition to move its reception.' This procedure has its inconve- niences since members may be ignorant of the nature of the petition, until the motion is made for its reception ; and it has, therefore, been found advisable under special circumstances to adjourn the debate on the question until a future day." Petitions which have been duly read and received frequently form the basis for a reference of a question to a committee. In such cases, notice is given of a motion on the question.^ If a member has a notice of motion on the paper with respect to a petition he cannot move in the matter until the notice is reached in due order.^ Nor on a motion for the adjournment of the house can he debate a petition which he would be restrained from discussing by the rules of the house.^ If he wishes to present a petition signed by himself, he must give it to another member to bring up.*^ The speaker of the Commons cannot present a petition, but must avail himself of the services of a mem- ber on the floor.^ But it is quite competent for the speaker of the Senate to do so, since he may speak in the debates.^ 1 Can. Com. J. (1867-8), 339-10. 2 Ih. (1880-81), 89. 3 V. and P. (1882), 216, 442 ; Jour., pp. 354-5. * Can. Com. J. (1875), 177. ^ 59 E. Hans. (3), 476. dishing, p. 462. This rule is always enforced, though no decisions appear in the Canadian journals. The clerk com- municates with the member and has the error rectified. « 109 E. Hans. (3), 233. ' Mr. Speaker Addington pointed out that if this were permitted the speaker would be compelled to make motions and take such part in the proceedings as would not be competent for him in other cases. 32 Pari. Eeg. 2 ; Cushing, p, 462. Mr. Speaker Blanchet, Can. Hans. (1879), 1453-4. « Sen. J. (1880-81), 95. FORM OF PETITIONS. 263 n. Form.— Every petition to the two houses should com- mence with the superscription : To the Honourable the (Senate or House of Commons) in Parliament assembled : Then should follow the formula. " The petition of the undersigned • humbly sheweth." The petitioner or petitioners will next proceed to state the subject-matter of the petition, in the third person throughout, and com- mencing each paragraph with the word " that." The con- clusion should be the " prayer " — without which no peti- tion is in order. This prayer should tersely and clearly express the particular object which the petitioner has in view in coming before Parliament. And the petition should then close with the formal words : " And your pe- titioners as in duty bound will ever pray." The signa- tures of the parties interested should be written on the sheet containing the prayer. m. Irregularities.— A large number of petitions are not received every session on various grounds of irregularity. The house will refuse to receive a memorial containing no prayer.^ Every petition should have the signatures of "at least three petitioners on the sheet containing the prayer."^ But this rule is never interpreted as precluding a single petitioner from approaching the house ; it simply ^ Can. Com. J. (1876), 180. Can- Hans. (1879), 1453-4. But a docu- ment, although termed a memorial, if it is substantially a petition pro- perly worded and concludes with a prayer, may be received as a petition according as the house may think proi)er. 240 E. Hans. (3), 1681-2 ; Blackmore's Sp. D. (1882), 158. 2 Can. Com. J. (1873), 131, 243, &c. ; Ih. (1877), 70, 88, &c. The reason of this rule may be understood by reference to a statement of Lord Claren- don (Hist, of Rebellion, II., 357) that, in 1640, " wlien a multitude of hands was procured, the petition itself was cut off, and a now one framed suitable to the design in hand, and annexed to the long list of names which were subscribed to the former. By this means many men found their hands subscribed to petitions of which before they had never heard." 264 PETITIONS. refers to petitions signed by a number of individuals. Petitions from one person are constantly received in ac- cordance with the English rules which are more definite on this point.' The Senate rule is quite explicit : 3G. " Every petition is to be fairly written oi- printed, and signed on the sheet containing the prayer of the petition; and if there be more than three petitioners the additional signatures may be affixed to the sheets attached to the petition." A petition may be written in French or English.^ It may be printed,'^ but it must be free from erasures or interlineations/ and the signatures must be written," not printed, pasted upon, or otherwise transferred." It must not have appendices attached thereto, whether in the shape of letters, affidavits, certificates, statistical statements, or documents of any character.^ A member may, however, receive permission from the house to withdraw the appen- dix, when it is desirable that the petition, especially if it be one for a private bill, should be received with as little delay as possible."^ But in case the appendix is objected to, the member has no alternative except to present a new petition.'^ A petition forwarded by telegraph cannot be received inasmuch as " it has no real signatures attached to it." ^^ Petitions of corporations aggregate must be under their common seal ; and if the chairman of a public meeting 1 100 E. Com. J., 335 ; 109 Ih., 293 ; 66 E. Hans. (3), 1032 ; Can. Com. J. (1876), 294 ; Ih. (1877), 20, 61 ; May, 618. ^ Petition from Judge Loranger, and others relative to weights and measures in 1877, &c. ' Prohibitorj' Liquor Law, 1875 ; Welland Canal, 1877, &c. Sen. E,., 36. * 82 E. Com. J., 262 ; 86 Ih., 748. ^ Chenal Ecart^ Petitions, March 1, 1877, all printed. « 104 E. Com. J., 283 ; 105 Ih., 79. T Can. Com. J. (1876), 212 ; Ih. (1877), 113. 81 E. Com. J., 41, 82 ; 111 lb., 102. 14 Pari. Deb., N.S., 569. Sen. Hans. (1880), 294 (Mr. Penny). 8 Can. Com. J. (1879), 18. " 27 P:. Hans. (1), 395 ; 38 Ih., 662. Can. Com. J. (1876), 212, 213. '" Can. Sp. D., 192. Can. Com. J. (1872), 80. IRREG ULAR PETITIONS. 265 sign a petition in behalf of those so assembled, it is only received " as the petition of the individual, and is so entered in the minutes, because the signature of one party for others cannot be recognized."^ Aliens, not resident in this coun- try, have no right to petition Parliament.- In the case of applications for private bills, however, this rule is not rigidly enforced. It was agreed in 1878, at the suggestion of Mr. Speaker Anglin, to receive a petition from the Hartford directors of the Connecticut Mutual Insurance Company on the ground that it was a mutual company, partly composed of Canadians, and that it was the subject of parliamentary legislation, the company being required to make a certain deposit before doing business in the country.^ In 1883 a petition from certain persons in the city of Portland in the state of Maine, asking for an act of incorporation, was received on the ground that the subject- matter came within the jurisdiction of the house, as in the case already cited.^ The reception of such petitions may be considered an act of grace.' All petitions should be respectfully and temperately worded. The house will refuse to receive them if they contain any reflections on the queen or her representative in Canada,'' or on the action of parliament,^ or on any of its committees,** or on the courts of justice,'* or atfect " the 1 Sen. R., 37-38. :May, 610 ; 10 E. Com. J., 285. 2 Can. Com. J. (1877), 41 ; lb. (1880), 165. See English report on Boulogne-sur-mer petition in 1876, Pari. P. 232. But aliens resident in Great Britain and her dependencies have the right to petition. Mr. Sp. Brand, 228 E. Hans. (3), 1411-117; Blackmore's Sp. D. (1882). 158. ^ Can. Hans. (1878), 950. See also i)etition from American Associatiou of Breeders of Short Horns, Fell. 18, 1878. * Can. Hans. (1883), 138. Tlie necessity of offering every inducement to capital was referred to in the debate by the premier as a reason for allowing the reception of such petitions. ^ Mr. Sp. Brand, Friday, April 7, 1876, Eng. Hans. « 122 E. Hans. (3), 863. ■ ' 84 E. Com. J., 275. 8 129 lb., 209. 3 76 lb., 105 ; 129 lb., 276. 266 PETITIONS. legal and .social position of individuals." ' A document distinctly headed as a " remonstrance," even though it conclude with a prayer, cannot be received." Neither can any paper in the shape of a declaration be presented as a petition.'* Any forgery or fraud in the preparation of petitions will be considered a serious breach of privilege and severely punished.^ rv. Petitions for pecuniary aid.— In the first session of the Parliament of Canada the House of Commons initiated the practice of refusing to receive any petition for a grant of money out of the public revenues unless it has been first recommended by the Crown.'^ This practice is in con- formity with the following standing order of the English House of Commons : " That this houne will receive no petition for any sum relating to public service, or pi'oceed upon any motion for a grant or charge upon the public revenue, whether payable out of the consolidated fund or out of moneys to be provided by Parliament, unless recommended from the crown." ^ Since then a large number of petitions have been re- jected every session, when they have asked for remunera- tion for services performed;^ for arrears of salaries and pensions f for aid to construct or repair public works f 1 129 E. Com. J., 276. ^ May, 609 ; 70 E. Hans. (3), 745. But when headed as a petition and conchiding with a prayer, petitions have been received. 65 E. Hans. 1225. •■* Can. Hans. (1879), 1453-4; 60 E. Hans. (3), 640. * May, p. 611, gives numerous casjo. 106 E. Com. J., 193, 289 ; 120 Ih.,. 157, 336 ; Res. of 2nd June, 1774. '= Can. Com. J. [1867-8], 297. 245 E. Hans. (3), 1724. « 20th March, 1866. E. Com. J., 1874, British Museum ; 136 1 b., 99. The Enghsh rule apphes to petitions " distinctly praying for compensation, or indemnity for losses, out of the public revenues." May, 613 ; 90 E. Com. J., 487; 104 7&., 223. ' Can. Com. J. (1871), 65, 229 ; lb. (1883), 57. ^Ib. (1870), 67, 110 ; lb. (1871), 18 ; lb. (1878), 70. "^ lb. (1870), 40, 56, 191, 233; lb. (1871), 44, 135, &c. lb. (1877), 79. 92, &c. PETITIONS FOR AID. 267 for subsidies to keep them in an efficient condition ;^ for any remission of moneys due to the Dominion ;" for com- pensation for fosses incurred from pubfic worfis ;^ for subsidies to steamers owned by private individuafs or companies;^ for grants of pubfic fands to aid certain worivs \^ for compensation on account of fosses affeged to have been sustained through the operation of an act of Parfiament.'' But vi^hifst petitions that directly asfv for any pubfic aid or for any measures directly invofving an appropriation of pubfic money, are now never received, the house does not reject those whicfi asii simpf y for fegisfation, or for " such measures as tiie house may thinfj it expedient to tafie " with respect to pubfic worf^s. In the session of 1869, Mr. Speafiier Cockburn decided that petitions of such a character ougfit to be received, as they did not come within the express fanguage of the Engfisfi ruie just quoted. On this occasion the speaker suggested that " if it were the pfeasure of the house to excfude petitions of that cfass in future, the proper way wouid be to adopt a substantive rufe which woufd cfearfy shut out such peti- tions."'^ But no such rufe has ever been adopted, and it is now the invariaf^fe practice to receive petitions wfiich are expressed in generaf terms and do not directfy asfv for pecuniary aid for pul^fic works.*^ Such petitions are re- 1 Can. Com. J. (1870), 1G7. 2/6.(1871), 159. 3 Ih. (1873), 66. •■ Ih. (1878), 56. 5 Ih. (1882), 75. ® Can. Com. J. (1883), 47 ; Canada Temperance Act. ■' Can. Com. J. (1869), 22-3. Ho made these remarks on a petition " humbly praying the house to take such measures as will cause the obstructions to the navigation of the Ottawa River to be removed, etc" » Can. Com. J. [1877], 100, &c., Welland Canal ; St. Peter's Canal.. Ih. [1877], 27, 147, ex-serjeants of Volunteers; first jxitition not received ; second received, as it asked the house simply to take the facts into its favourable consideration. 268 I'lvriTiONS. ceived ou the same priiicipLi which allows the moving of resolutions expressive ol" the al^stract opinions of the house on matters of expenditure' No petition asking diiMM-tly for an appropriation from the public treasury can be properly received in the Senate. There is no rule or usage of the Lords or Senate, however, to prevent the presentation and discussion of a petition for pecuniary aid or redress, provided it be framed in general terms and does not ask for a specific sum of money.^ V. Petitions for Taxes or Duties.— Up to the middle of the session of 18^6, it was not the practice to receive petitions praying for the imposition of duties, on the principle ■which prevents private members from initiating and carrying out measures for taxation.^ On more mature consideration, however, it was seen that this pra-tice tended to prevent an unequivocal expression of public opinion on questions of taxation, especially as there was no express rule against the reception of such petitions. ■Consequently it is now the invariable practice to receive petitions asking for the imposition of customs and ex -ise duties/ It has also been decided that when a number of persons ask for a bounty to a particular industry on public grounds, it is regular to receive their petition. The objection to the reception of petitions for a bounty pro- ^ Hatsell [III., 241]. says the prayer should be general, and not pms -ribe the quantum of aid. 2 See remarks of Mr. Speaker Christie, Jour. [187-1], 03-1 ; Deb. (1871), 134-8 ; I. Todd's Pari. Gov., 433 ; 173 E. Hans. (3), 1622 ; 174 Th., 962. The petitions should conclude simply with asking the house to take the matter into its favourable consideration, or witli some such genei'al prayer. Sen. J. (1879), 108 (York Pioneers) ; I h. (1883), 63. 3 Can. Com. J. (1873), 146 ; Ih. (1875), 205, 241, 260, &c. ; Ih. (1876), 58, 76, 86, &c. * This decision was arrived at in 1876, when the rules were revised, but no record was made on the journals. Mr. Speaker Anglin stated it to the house on the presentation of a petition asking for the levj'ing of certain duties. Can. Com. J. (1876) 107, 130, &c., lb. (1877) 37, 54, 58, &c.; Ih. (1878) 150 ; Ih. (1879) 57, 65, 140, &c. CASES OF URGEXCY. 269 perly applies only to cases where an individual or indivi- duals, personally interested, ask for such a bounty as will be profitable and confined to themselves/ It is also usual to receive petitions from individuals for an exemption of a tax or duty on public grounds ;- but petitions from parties immediately interested in a remission of duties or other charges payable by any company or person, will be ruled out.'^ Neither will the house receive a petition praying for the compounding or releasing any debt due to the Crown ;^ but petitions may be considered when they pray for provision for compensation for losses contin- gent on proposed legislation.' Petitions against measures for the imposition of any tax or duty for the current service of the year, are always in order." VI. Urgency.— A member presenting a petition, has no right himself to read it at length, but he may have it done by a clerk at the table.^ Petitions may be at once read and received by common consent, chiefly in order to refer them to a committee ; if a member objects, it cannot be done,** In case of urgency, however, a petition may be immediately considered,'-' but the grievance must be such ^ Mr. Speaker Anglin on Coal Bounty, Can. Com. J. (1877) 27, 37. Such a petition, ho showed, stood precisely in the same jKisition as one asking for the imposition of taxes for general purposes. 2 Can Com. J. (1876) 70 ; lb. (1879) 300, Paper Machine. 3 Can. Com. J. (1875) 260 ; 92 E. Com. J. 372 ; 223 E. Hans. (3) 879. * 81 E. Com. J. 66 ; 83 lb. 212. * May, 613 ; 92 E. Com. J. 469. « Eng. S. 0. 80 ; 97 E. Com. J. 191. " Rule 86, Supra p. 260. No motion is necessary, and no mention of the fact is made in the journals. «Sp. Dec. 25; Can: Com. J. (1875) 152; Hans. 450-1. Ih. (1S76) 171, 204. In one case, the petition was received and printed forthwitli, hocauso it referred to the bill respecting marriage with a sister of a ileccased wife, then under discussion ; lb. (1880) 130. 9 Rule 86. Also Eng. S. O. 78. 270 PETITIONS. as to require a speedy and urgent remedy.' Petitions affecting the privileges of th(! house will at once be taken into consideration in accordance with parliamentary usage in all cases of privilege.^ VII. Printing.— Petitions are often ordered to be printed for the information of members by the committee on print- ing.'* It is frequently found convenient to print them in the votes and proceedings — a motion to that effect being duly made and agreed to.^ Petitions of a previous session have also been so printed.' VIII. Reflections on House or Members.— If it shall be found on inquiry that the house has inadvertently received a petition which contains unbecoming and unparliamen- tary language, the order for its reception will be read and discharged.*^ In the Lords, when a petition has been pre- sented and afterwards found to be out of order, on account of a reflection on the debates of the house, or on one of its members, the Lords, on being informed of the fact, have " vacated " the proceeding, and the member has been given leave to withdraw the petition.^ It has also been ruled in the English House of Commons that it is competent for a member to move, without notice, that the order for a peti- tion to lie on the table be discharged, if an irregularity has been committed with respect to such petition.^ If a petition contain a prayer which may be construed into a reflection on the action of the house, a member will be justified in declining to present it.^ ^ 139 E. Hans. (3) 453-5. Any previous notice will preclude its being a ■once considered ; 75 E. Hans. (3) 894, 1264. 2 Infra, p. ; 164 E. Hans. (3) 1178 ; 114 E. Com. J. 357. 3 Can. Com. J. (1867-8), 400 ; lb. (1880) 130 ; Ih. (1882) 192, 261. * V. and P., March 19, 1875 ; Can. Com. J. (1877), 25. 5 lb. (1877) 25 ; 112 E. Com. J. 155. « 131 E. Com. J., 200. ^ 220 E. Hans. (3), 600. 8 228 lb. 1395-1400 ; Blackmore's Sp. D. [1882], 155-6. » 262 E. Hans. 859-60. PETITIONS TO THE IMPERIAL GOVERNMENT. 2Y1 IX. Petitions to Imperial Authorities.— As a general rule the Parliament of England receives petitions from British subjects in all parts of the world. ^ In the times previous to the introduction of responsible government into Canada, the right of petitioning the House of Commons was very frequently exercised by the people of the several provinces in order to obtain remedies for certain gi'ievances ; but there are now in these days of self-government very few occasions when it is necessary to make such appeals to the Imperial Parliament. It may also sometime be thought expedient to petition the sovereign, and in such a case the constitutional procedure is to forward the peti- tion through the governor-general. The rules of the colo- nial service require that j)ersons in a colony, whether public functionaries or private individuals, who have any representations of a public or private nature to make to the British government " should address them to the gov- ernor whose duty it is to receive and act upon such repre- sentations as x^ublic expediency or justice to the individ- ual may appear to require, with the assistance in certain cases of his executive council ; and if he doubts what steps to take thereupon, or if public advantage may appear to require it, to consult or report to the secretary of state." Every individual has, however, the right to address the secretary of state, if he thinks proper. But in this case " he must transmit such communication, unsealed and in tri- plicate, to the governor or administrator, applying to him to forward it in due course to the secretary of state." Every letter, memorial or other document, " which may be received by the secretary of state from a colony otherwise than through the governor, will, unless a very pressing- urgency justifies a departure from the rule, be referred back to the governor for his report." This rule " is based on the strongest grounds of the public convenience, in order that all communications may be duly verified, as ' Mr. Sp. Brand, April 7, 187G. Blat'kmoro's Sp. D. [1882], 158. 272 PETITIONS. well as reported upon, before they reach the secretary of state." Potitions addressed to the queen, or the queen in council, memorials to public ollicers or boards in her Ma- jesty's government, " must in like manner be sent to the governor-general for transmission home.'" In 18Y8, a large body of Homan Catholics in Ontario, petitioned the queen with respect to a provincial act giving special privileges to the Orange society in the province of New Brunswick. This petition was forwarded through Mr. Isaac Butt, M.P., to the secretary of state for the colonies, who replied that, in accordance with the rules just cited, all such communi- cations should be transmitted to the colonial ojBBce through the governor of the colony whence they proceed. Accord- in o-ly the petition was duly sent back to the governor- o-eneral of Canada, for the information of the dominion and provincial authorities. ^ 1 Col. Off. Reg., 217, 218, 219, 220, 221, 222, 223. See C. O. List for 1883,. p. 268. 2 E. Com. P., 1878, No. 389 ; Todd's P. G. in the Colonies, pp. 356-7. CHAPTER IX. ORDERS AND ADDRESSES FOR ACCOUNTS AND PAPERS. I. Presentation of pape.rs. — II. Their character. — III. Form of motions. — IV. Distinction between addresses and orders. — V. Returns in answer. — VI. Carefulness in preparation. — VII. ^Motions for papers refused. — VIII. Printing of documents. — IX. Joint committee on printing. I. Presentation of Papers.— By reference to the index to the journals of the Canadian as well as English House of Commons, it will be seen that there are several pages ex- clusively devoted to entries under the general head of " accounts and papers." Here will be found an alphabet- ical list of all the accounts, papers, and documents rela- ting to the public service that may be ordered or laid be- fore the house in the course of a session. By rule 19, parts of Monday, Wednesday and Thursday are devoted to the consideration of notices of motions, which comprise mo- tions for such papers and returns as members require for their information on public matters. The number of pub- lic documents, asked for and ordered every session, vary from three to four hundred — the number having been steadily on the increase since 1867-8.^ The documents laid annually before Parliament are pre- sented either by message or by command of his Excellency the Grovernor-Greneral, or in answer to an address or order ^ The number asked for in 1877 was 293, and in 1882 it reached 411 — a number very considerably in excess of that of previous years. The figures by no moans represent the actual number asked for; at the end of the session of 1879 some 40 motions still remained to bo jiroposod, and the same is the case every year. 18 274 ORDERS AND ADDRESSES. of the house, or in pursuance of an act of Parliament. By- rule lOG " it is the duty of the clerk to cause to be printed and delivered to every member, at the commencement of every session of Parliament, a list of the reports or other periodical statements which it is the duty of any officer or department of the government, or any bank or other corporate body to make to the house, referring to the act or resolution and page of the volume of the laws or jour- nals wherein the same may be ordered, and placing under the name of each officer or corporation a list of reports or returns required of him, or it, to be made, and the time when the report or periodical statement ma}^ be expected." n. Character of Papers.— The returns laid on the tables of the houses every session by command of his Excellency, comprise the reports of the ministers of the several depart- ments of the government, public works, militia, post- office, marine and fisheries, etc., which are printed in the two languages in the shape of " blue books." Among the papers required by law are : lists of stockholders of banks, general statements and returns of baptisms, marriages and biirials in Quebec, reports of judges relative to the trial of controverted elections, and various other matters regulated by statute.^ The reports of the several departments of the government are laid annually before Parliament in ac- cordance with the statutes organizing suchdepartments.- Certain papers are also periodically laid before Parlia- ment by message from his Excellency the governor-gene- ral. The estimates of the sums required for the service of the dominion must always be brought down in this way, in accordance with constitutional usage.'^ Despatches from 1 See index to journals of Commons (accounts and papers), where an entry is made of the authoritj' under which everj' return is laid before Parliament. - See mpra pp. 5-4-6, where different statutes, organizing departments, are cited- " See chap, on Supply. CHARACTER OF PAPERS. 275 tlie secretary of state for the colonies are always sent down by the governor-general/ aud so are all papers relative to royal commissions and other matters affecting imperial in- terests or the royal prerogative." No documents can be re- gularly laid before the house unless in pursuance of some parliamentary authority. In the session of 1879, the speaker called the attention of the house to the fact that he had received a communication from the Reciprocity and Free Trade Association of England, with respect to the Canadian tariff, then the subject of discussion in Par- liament. He decided that individuals outside of the house could only approach it properly by petition, and that the do- cument in question was a mere declaration, and could not be presented by a member. He took this occasion of stating that no documents can be regularly laid before Parliament, unless by message from the governor-general, or in answer to an order or address, or in pursuance of a statute requiring their production." Every session papers are re- ceived by the speaker from municipal councils, foreign associations, and individuals, with respect to public mat- ters, but their receipt is simply acknowledged by officers of the house, since there is no authority to lay them be- fore Parliament. If it were permitted to lay such docu- ments indiscriminately on the table, much confusion and inconvenience would naturally follow, and the rules and usages that have long j)roperly governed the production of public papers would be evaded. III. Form of Motions.— Returns and papers are moved for in the form either of an address to the governor-general. 1 N. A. Boundary Com., 1877 ; Irish Relief Grant, 1880. 2 Northern R.R. Com., 1877. ' Can. Hans. (1879), 1453. In 1879, a communication from the senate of the legislature of the state of Michigan on the subject of proposed le^ris- lation was laid on the table of the upper house of the dominion Parha- ment on the ground tliat it was only courteoas to receive such a document from a cognate legislative body. Ueb. o71 ; Jour. 17<). This was a most unusual proceeding. 2*76 ORDERS AND ADDRESSES. or of an order of the house. A motion for an address should always commence with the prescribed words : «Mi-. moves Ihat :i Imrnhle address be presented to liia Excolk'iicy, tlio (Jovernor-ricncral, praying tliat his Excellency will cause to be laid before this house," etc. In the case of an order of the house, it is simj)ly neces- sary to make this motion : "Mr. moves that an order of the house do issue for," etc." IV. Distinction between Addresses and Orders.— Previous ta the session of 18t6, it was customary to move for all papers by address to the governor-general, but since that time the more regular practice of the English houses ha& been followed. It is now the usage to move for addresses only with respect to matters affecting imperial interests, the royal prerogative, or the governor in council. On the other hand, it is the constitutional right of either house to ask for such information as it can directly obtain by its own order from any department or officer of the govern- ment. It is sometimes difficult to make a correct applica- tion of this general principle ;^ but the following illustra- tions of recent practice will shoAV the distinction that should be drawn between addresses and orders : Addresses are moved for papers and despatches from the imperial government ; ^ for orders in council ;^ for corres- pondence between the dominion, British, and foreign governments,' or between the dominion and provincial governments,^ or between the dom,inion government and ^ May (623) states that the same difficulty exists in the English Commons. 2 Can. Com. J. (1877), 151; lb. (1878), 124. =* Ih. (1877), 36, 56 ; Ih. (1878), 63-4. * Ih. (1877), 21, 22, 35, 109 ; Ih. (1878), 44. 5 Ih. (1877), 204 ; Ih. (1878), 65 ; Ih. (1882), 166 (for a copy of a resolu- tion passed by a provincial legislature, and transmitted to his Excellency). DISTINCTION BETWEEN ORDERS AND ADDRESSES. 277 any companies, corporations, or individuals ;' for informa- tion respecting a royal commission;^ for instructions to ihe governor-general;^ On the other hand, papers may be directly ordered when they relate to canals and railways, post-office, cus- toms, militia, fisheries, dismissal of public officers, har- bours and public works, and other matters under the immediate control and direction of the different dex)art- ments of the government.^ Correspondence with persons in the employ of the government, and in the possession of a department are ordered.^ Petitions and memorials not in the possession of the house, but addressed to the gov- ernor in council, and including memorials for public aid, must be asked for by address ;" but i:)etitions addressed to & particular department are directly ordered." E-eturns of petitions of right and cases before supreme and exchequer courts are brought down on an address.*^ Returns relative to the trial of election cases before judges,'' and the ■expenses of returning officers and candidates at elections'" Are by address ; but the clerk of the crown in chancery will lay on the table, in obedience to an order, returns showing number of votes polled in electoral districts and other facts as to a general election.^^ Returns relative to 1 lb. (1877), 21, 22, 45, 191. But this is not done invariably. ■' lb. (1878), 65. ^ lb (1882), 326. * See index to journals for 1883 (" accounts and papers "). 5 Can. Com. J. (1878), 120 (Serj. Hart) ; 125 (Mr. Perloy). « lb. (1877), 93; lb. (1878), 124 ; lb. (1879), 59. On the same princii)lo memorials to the secretary of state for the home department in England have been asked for by address ; 129 E. Com. J. 95. ' Can. Com. J. (1882), 357. >" lb. (1878), 125 ; lb. (1880), SO. » 129 E. Com, J. 157. ^» 129 E. Com. J. 50, 64, 147 ; 137 lb. 258 ; Can. Com. J. ^879), 30. But the house has sometimes ordered them, though the strict English practice appears to be as above ; Can. Com. J. (1883), 168. " Can. Com. J. 1S-S3, April 9. 278 ORDERS AND ADDRESSES. th(^ administration of justice' and the judicial conduct of a judge^ are properly asked for by address. Papers in the possession of harbour commissioners — a body not directly under the control of the government — are also moved for by address.' Returns respecting confidential printing are by address, as such printing is done by order in council.' Papers relative to the exercise of the prerogative of pardon must be sought in the same mode." Memorials to heads of departments or bodies immediately under the control of a department are ordered by the house.*"' The house directly orders returns (and the clerk may lay them on the table) relative to business of the house ; for instance,, return of number of divisions, of public and private bills, of select committees, etc' The Senate does not observe the distinction drawn in the Commons between orders and addresses.*^ V. Returns in Answer.— As soon as these addresses and orders have been passed by the house, they are engrossed and forwarded immediately by the clerk of the house to the secretary of state, who will send them to the proper department or oflB.cer for the necessary answer. When the department or person, whose duty it is to furnish the information, has prepared it, he will return it to the sec- retary of state, who will take the earliest opportunity of 1 129 E. Com. J. 79, 98, 203 ; 132 lb. 392. 2 Can. Com. J. (1882), 25. 3 lb. (1878), 90. * lb. (1882), 25 ; infra, p. 288, n. » lb. (1882), 157. « 129 E. Com. J. 72, 80, 241, 366. ' 129 lb. 336, 369 ; Can. Com. J. (1878), 40, 54 ; 199, 208. » Sen. J. (1880-81), 188 (silver coin) ; 199 (public service) ; 285 (eel fish- ery) ; lb. (1882), 126 (P. E. Island) ; Ih. (1883), 257 (Militia). But the distinction is evidently observed in the Lords. For orders, see 114 Lords' J. 48, 53, 82, 88, 93, 109. For addresses, lb. 61 (Corresp. with gov. -gen. of India) ; 113 (Corresp. with United States Govt-); 129 (international com- mission) ; 158 (judicial proceedings). ANSWERS TO ORDERS AND ADDRESSES. 279 laying' it before Parliament through the medium of a minister of the Crown. It is the practice for each minister in the House of Commons to present the returns relative to his own department.' These returns are furnished by the departments of the government with as much speed as is practicable, but it often happens that a large number cannot be prepared in time to be laid before the house during the same session in which they are ordered. In such a case, returns are often presented during the following session,^ and papers have even been brought down several years after having been ordered.'^ A prorogation, however, nullifies the effect of an order, and the strict practice is to make a motion in the next session,' or read the order of the pre- vious session, and order the return immediately." But it is now frequently found most convenient to bring down in the following session all papers of general importance without a renewal of the order.'' All papers laid on the table are kept in the custody of the officers of the house, and may be consulted at any time in the journals' office. All the important papers are generally ordered to be printed, as it will be presently shown.^ When returns have once been presented to the house, it is in order to refer them to a standing or select committee.'^ VI. Carefulness in Preparation.— Every motion for a return should be A^ery carefully prepared so that the member may obtain the exact information he requires. In case a motion is vaguely expressed, or asks for more information 1 Can. Com. J. (1877), 12, 50, 354, 356; lb. (1883), 328. 2 lb. (1877), 38, 55, 62 ; lb. (1879), 39. '^ lb. (1877),'284. * May, 627. ^ 114 E. Com. J. 371. « Can. Com. J. (1882), 104, 142. " Infra, p. 289. " Can. Com. J. (1874), 103 ; Jb. (1876), 98 ; lb. (1877), 59. 280 ORDERS AND ADDRESSES. thau it is in the power of the government to give, or otherwise requires amendment, the member who makes it will generally be allowed to amend it with the unani- mous consent of the house ; and in such a case the speaker wall always again read the motion so amended. In this way the convenience of members, in exceptional cases, is consulted; but it is necessary, in ord(^r to save the time of the house, that each motion should be care- fully framed at the outset, as it cannot be changed (except by general consent) when it is once proposed by the chair in accordance with the notice. Returns are frequently laid on the table by a minister without a motion having been formally made for their x)rodaction. This is gene- rally done in cases where an important debate is at hand, or in progress, and as there is no time to make a formal motion, the government will give every informa- tion in their i^ower to the house. This, however, is a matter of courtesy and not obligatory on the part of a minister.^ Every care should be taken by the department or officer "whose duty it is to furnish the return, to have it strictly in accordance with the terms of the address or order. If a person neglect to furnish a return or frames it so as to mislead the house, it will be considered a breach of privi- lege, and he will be reprimanded or more severely pun- ished according to the circumstances of the case.^ Vn. Motions for Papers Refused.— Whilst members have every facility afforded them to obtain all the information they require on matters of public concern, occasions may arise when the government will feel constrained to refuse certain papers on the ground that their pi-oduction would be inconvenient or injurious to the public interests. A ^ Can. Com. J. (1874), consolidated fund exiienditiire, 76. ~ 90 E. Com. J. 575 ; 96 lb. 363, Mirror of P. lS-11, vol. 23, pp. 2014-5 ; SI Lords' J. 89 ; 82 lb. 89 ; May, 626. REFUSAL OF PAPERS. 281 liigh authority writes oil this point : " Considerations of public policy, and a due regard to the interests of the state, occasionally demand that information sought for by members of the legislature should be withheld, at the ■discretion and upon the general responsibility of mini- sters. This print iple is systematically recognised in all parliamentary transactions ; were it otherwise, it would be impossible to carry on the government with safety and honour." ^ Consequently there are frequent cases in which the ministers refuse information, especially at some •delicate stage of an investigation or negotiation ;"" and in such instances the house will always acquiesce when .sufficient reasons are ' given for the refusal. On this account, members will sometimes consent to withdraw their motions ; or in case only a part of the information .sought for can be brought down they will agree to such alterations as the minister may show to be advisable in the public interests. Sometimes the government may be obliged to withhold all information at the time, or they may be able to put the house in possession of onh'" a part •of the correspondence.* But it m.ust be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses. Papers have been refused on the ground that it would 1)6 wholly without precedentfto produce them.^ Estimates and reports of the engineers of the public works, in many ' 1 Todd'e Pari. Gov. in Enjrland, 278-85 ; 173 E. Hans. (3), 10.55 ; Mirr. of Pari. 1837-8, p. 658 ; Can. Hans. (1878), 1653. 2 Sen. Hans. (1880), 77, 469 (Sir A. Campbell); INIirror of P., 1841, p. 1032 ; 157 E. Hans. (3), 1177. •' Can. Hans. (1877), 58-9. •* 211 E. Hans. (3), 1725. 282 ORDERS AND ADDRESSES. cases, are considered confidential.' As a rule, the opinions of the law officers of the crown are held to be " private communications" when given for the guidance of ministers, and may be properly refused by the government." But there are occasions when it may be convenient to lay them before Parliament ; and that is a matter within the discretion of the government. If such a document is read in the house, it becomes a public paper, and may be called for.^ The practice of asking for reports from officers, addressed to particular departments of the executive gov- ernment, has also been considered most objectionable.* Certain papers have also been refused in the Canadian Commons on the ground that the " governor-general, act- ing as an executive officer of the imperial government, reserves to himself the right of withholding from Parlia- ment any documents, the publication of which might, in his judgment, be prejudicial to the public service. That with respect to communications from the secretary of 1 Can. Hans. (1878), 510, Lachine canal. Ih. [1879], 45, Carillon works.. Also p. 1080. Remarks of Sir C. Tupper, minister of public works, on the subject of presenting a report of the engineers on tenders submitted for the construction of the Canada Pacific R. R. — this report being to a certain extent confidential. It will be seen from the debate on this occa- sion that leading members like Mr. Holton and Mr. Mackenzie acknow- ledged that ministers could, in particular cases, with propriety refuse making public certain official papers. ^Ir. Mackenzie expressed his opinion that everything that referred to the giving out of contracts, of a technical and public nature ; everything except the moral and personal, reasons why any persons had been passed over, should be laid before the house; p. 1083. 2 Mirror of P. 1830, pp. 387, 1877-1879 ; 1840, p. 2120 ; 74 E. Hans. [3], 568. See reply of Lord Gosford to an address of the assembly, Lower Canada, Dec 11, 1835 ; Jour. 1835-6, p. 263. Tlie same rule applies to communica- tions between law officers of the Crown respecting particular trials ; or the judge's notes taken at a trial; Mirror of P. 1830, pp. 527, 1667-1688 ; 1 Todd, 357. Or to coroner's notes, which, as they partake of a judicial character, can be produced only with the consent of the officer himself;. Mirror of P., 1841, p. 2207. '^87 E. Hans. (3), 219, <&c. ; also, 149 Ih. 178. ■• 177 Ih. 961, 1402, 1455 ; 178 lb. 154. GOVERNOR-GENERAL'S DESPATCHES. 283^ state, marked 'private and confideutial,' it is not com- petent for the governor-general to give copies of such cor- respondence without the express sanction of the secretary of state. That this rule equally applies to letters written by the governor-general to third parties, communicating confidentially to them, or referring to the contents of private and confidential letters from the secretary of state, and to answers received by the governor-general to such letters." ^ Before leaving this point, it is useful to note here that the colonial ofiice has laid down certain rules for the guidance of governors in their communications with the imperial authorities. Where responsible government is established the governor is generally at liberty to com- municate to his advisers all despatches not "confidential." By a circular of 10th of July, 1871, despatches are reclassi- fied : 1. Numbered, which a governor may publish unless directed not to do so. 2. Secret, which he may, if he thinks fit, communicate, under the obligation of secrecy, to his executive council, and may make public if he deems it necessary. 3. Confidential, which are addressed to a governor personally, and which he is forbidden to make known without the express authority of the secretary of state." " Numbered" despatches are always laid before Parliament on the responsibility of ministers.' But it is " a general and reasonable rule that despatches and other documents forwarded to the imperial government should not be published until they shall have been received and acknowledged by the secretary of state, and that no con- fidential memorandums passing between ministers and the governor should be laid before the colonial parliament except on the advice of the ministers concerned." ' In 1878, Mr. Lanthier asked that the house pass an ad- ' Can. Com. J. [18G7-8], 275. - Col. Reg. 105-188 ; C. O. List, 1883, pp. 2Go-(J. 3 New Zealand H. of E. Jour., 1871, app. vol. I., p. 14 ; Pari. Deb. viii. 140. ■* See Todd's I'arl. Gov. in tlio colonics [pp. !>;WtO] where this (piestion is fully reviewed. 284 ORDERS AND ADDRESSES. •dross for certain plans and papers r(;lativo to the division line between Upper and Lower Canada. The premier (Mr. Mackenzie) objected to the adoption of the address, on the ground that the documents asked for were not in the possession of the dominion government, and that they "were wanted, according to the statement of the mover, for purposes of private litigation. The motion was then with- drawn in view of the strong objection taken by the gov- ernment to the production of the plans.^ In the same session the premier refused to bring down a statement in detail of the expenses of the governor-gene- ral during his visit to the Pacific coast, and contended that the house could find all the necessary information in the public accounts, and that it would be disrespectful to his Excellency to demand more than was given in these accounts. Prominent members did not doubt the right of a member to make such a motion, but only regretted that he had thought proper to press it. After considerable de- bate on the subject, an amendment was accepted to meet the difficulty in which the house was obviously placed." In the session of 18Y9, Mr. Williams moved for a copy •of all papers and correspondence that might have passed between Lord DufFerin (governor-general) and the mem- bers of the late Mackenzie administration on certain dis- m.issals from office. The premier (Sir John Macdonald) informed " the hon. member that the official correspond- ■ence between the governor-general and his advisers for the time being could not be brought to the house. If there was any such official correspondence on record, and his Excellency would allow its production, and the public interests would not be injured thereby, there could be no •objection to laying it before the house, but not otherwise."^ ' Can. Hans. [1878], 389-92. - Can. Hans. [1878], 510-25 ; see Sir Charles Dilkes's motion with res- pect to the civil list ; only two voted for his motion ; 276 against ; 210 E. Hans. (3), 251-318. * Can. Hans. [1879], 492. GROUNDS FOR DEMANDING PAPERS. 285- From discussions in the English Parliament it appears that the document, of which it is proposed to order a copy,, must be official in its character, and not a mere private letter or paper.' The papers asked for must relate to a sub- ject or matter within the legitimate powers and functions of Parliament. Where the production of papers was ob- jected to on the ground that the subject to which they related was one which belonged to the jurisdiction of the ordinary tribunals, and with which Parliament had no- authority to interfere, and that the only use which could be made of the documents would be as evidence against the claims of the party called upon to produce them, the motion was refused. " Neither is it a proper ground for the production of papers that they will either prove or disprove an assertion made by a member on some former occasion ;^ or that they will enable the mover to proceed individually upon a charge against a party, whom he de- sires to bring before some other body or tribunal.* It has, however, been distinctly laid down by eminent English authorities that the inquisitorial jurisdiction of Parliament could not be limited to such " public institutions " only as were the recipients of public money ; but " that when an institution is established to assist in promoting the culti- vation of the arts, or other strictly public object, it could not be denied that the house had a right to inquire into its affairs, even though it did not receive public aid."' And on a later occasion it was declared by Sir Eobert Peel that " where Parliament has given peculiar privileges to any body of men (as for example, banks or railway companies) it has a right to ask that body for information upon points 1 11 E. Hans. (1),271 ; Cashing, pp. 364-5 ; 11 Pari. Reg. 12S ; 74 E. Hans. (3), 865. ■' 15 E. Hans. (N. S.), 194-202. =* 22 lb. (1), 120. ne/ft. (3), 194-5. ^ Sir Robert Peel and Lord John Russell, in case of Royal Acai-leniy, Mirror of P. 1839, pp. 4238, 4503 ; 1 Todd, 281-2. 286 OllDKliS AM) ADDRESSES. \vhi(;li it (looms iiucossary lor tho X)ubli(; advantago to have generally understood." The great point to be aimed at in suoh inquiries he considered to be " that while you extract all the information tho public r(!quire to have, you should, at the same time, avoid all vexatious interference in the details of the business of the respective undertakings." ^ All the departments of the publii- service are kept most laboriously employed every session in furnishing in- formation required by members of the two houses. The expense entailed in this way is necessarily very large. The right of a member to obtain every information from the government within the limits previously described, is so undoubted that it seems almost beyond the power of a minister to keep the practice within narrower bounds and thereby save much public money. It is quite obvious, however, that no member should move for papers except on sufficient grounds. It is clearly laid down by the most eminent of English parliamentarians that it is incumbent upon the mover to state the reasons upon which his mo- tion is founded that the house may judge of the necessity, importance, and expediency of calling for the papers which are the subject of that'motion.- VIII. Printing of Documents.— All the pajjers and returns laid on the table of the house in the course of a session give a vast amount of information relative to questions of public interest. It is consequently usual to have all doc- uments of an important nature printed as soon as possible. The practice of the Senate with respect to the printing of public documents is the same as that of the Commons. Rule 84 of that house simply provides : " All papers laid on the table stand referred to the joint com- mittee on printing, who decide and report whether they are to be printed." 1 Mirror of P. 1840, p. 4840 ; also, 76. 1828, p. 825. 2 Lord Melbourne., Mirror of P. 1838, p. 5387. Also, 11 Pari. Reg. 132, 133 ; 2Cav. Deb. 237. Can. Hans. (1879), 1265-7. PRINTING. 2S1 But it is not iiiiiisual in the Senate for the chairman of a committee to move that certain papers be printed with- out reference to the printing committee, and the house has so ordered accordingly ; but this is only done for the immediate information of members.* As a rule the print- ing of all documents is left to the special supervision of the printing committee which regulates the number of documents and the mode of x)rinting for both houses. IX. Joint Committee on Printing.— The joint committee on printing which is composed of members of both houses, is appointed at the commencement of every session like the other standing committees." In the old legisla- ture of Canada the expenses of the public printing be- came so enormous under an exceedingh^ loose system, that it was at last found necessary to take measures to intro- duce greater economy into this service. In the session of 1858, an inquiry was instituted with this object in view, and a report was presented by a committee of the legisla- tive council, reviewing the whole subject, and very clearly showing the economical advantages that would result from certain i)roposed improvements. The report speci- ally recommended that, at the commencement of each ses- sion, a joint committee should be appointed, composed equally of members of both houses, whose duty it should be to determine what matter should be printed, as well as the manner of printing it.'^ This plan was favourably en- tertained by the legislative assembly, and in the session of 1859 the first joint committee on printing commenced its labours.* Under its authority the former practice of printing indiscriminately almost every document was abandoned, and a more economical system of printing only such documents and returns as are necessary for public 1 Sen. J. (1875), 176, 190 ; lb. (1878), 99, 129. '^ See chapter on select committees. =^ Leg. Com. J. (1858), 215-222. * I^g. Ass. J. (1861), 146. 288 ORDERS AND ADD I! ESSES. information was inaugurated. Step by step all the public printing of the country has been brought under perfect parliamentary control ;' and the result has been certainly satisfactory from an economic point of view. The joint committee has always had the management of the print- ing service of Parliament, as well as of all the officers and servants connected therewith. The salaries of the em- ployees are fixed by the committee, and any increases or diminutions are recommended to the houses for their sanc- tion." The printing service is performed by tender and contract under the direction of the committee, which re- ports its recommendations to the houses,'* which may or may not concur with the committee.^ The accounts are ^ The latest change was in connection with the Canada Gazette, and departmental printing. For very many years in old Canada the public printing was a monopoly ; but by the death of Mr. Stuart Derbishire in 1863, the queen's printership which was held by him under a royal patent became vacant. Mr. Malcom Cameron was appointed in his place, and carried on the departmental larintmg and the Canada Gazette in conjunc- tion with Mr. Desbarats, the surviving partner of Mr. Derbishire (Pari. Deb. 1863, p. 121 ; 1865, p. 16). The feeling, however, on both sides was to have a change also with respect to the Gazette and departmental printing (Leg. Ass. J. 1862, p. 316) ; and the dominion government, in 1869, at last took the question up, and the result was the passage of an act respecting the office of queen's printer, and the public printing (chap. 7, 32 and 33 Vict. Dom. Stat), which established a queen's printer for Canada, under whose superintendence the Canada Gazette, the statutes, and departmental print- ing must now be performed. All printing is done by public contract, except certain confidential printing which the government may by orders in council authorize to be done without tender — such orders and expendi- tures to be laid before Parliament at the next session. 2 Leg. Ass. J. (1860), 395, 462; Com. J. (1869), 156 ; lb. (1870), 243, 288 ; Can. Hans. (1878), 2253-4 ; Jour. pp. 131, 226. Sen. J. 142, 153. 3 Can. Com. J. (1867-8), 36, 38. lb. (1879), 303, 428 ; Sen. J. 177, 194. The contract is with the queen. * Can Com. J. (1869), 199, 224, 247, 265. In this case the committee re- ported in favour of certain tenders from Hunter, Rose & Co. ; but the house did not concur in the report, and referred it back with an instruction that the committee should accept the lowest tender, L B. Taylors. The committee then simply reported the lowest tender, and left the house to decide finally. PRINTING. 289 kept separate from those of the other services, and are checked by the clerk of the committee and paid only on his certificate.^ These accounts, with the report of an auditing sub-committee, and the certificate of the auditor- general, are duly laid every session before the houses.' In the session of IStS, objection was taken to a report of the committee, recommending an increase of salary, on the ground that a committee could not make such a recom- mendation. It was shown, howcA^er, to the satisfaction of the house that the committee had always exercised the power to nominate, and fix the salaries of, its employees, subject, of course, to the approval of the houses. The act respecting the internal economy of the house (31 Yic, c. 2t) provides that a certain sum shall be yearly voted by Par- liament and placed at the disposal of the committee for printing services. The committee simply distributes the moneys set apart by Parliament for this purpose.'^ The committee sits very frequently during the session, and the clerk lays before it all the returns according as these are placed on the table of the house, and then it decides what documents ought to be printed, and reports the result of its deliberations, so that members may know what has been done with the papers in which they are interested. All the important papers and returns are printed in the sessional papers — the reports of committees always in the appendix to the journals. ' A certain num- ber of printed copies of papers are distributed to each member. The committee has allotted to it "a joint room for the distribution of printed papers for both houses," and arranges the number of documents that are to be ' Leg. Ass. J. (18G0), 265- -Can. Com. J. (1878), 131-4 ; 16.(1879), 7.3,109; 76. (1883), 135-139 ;. Sen. J. (1883), 101-104. ^Can. Hans. (1878), 2201-2203 ; 2253-2254. Also, for now appointments by committee, see Jour. [1880], 54, G2 ; Ih. [18831, 79, 80. * Can. Com. J. [1876], 135, &c. 19 290 ORDERS AND ADDRESSES. annually given to members of Parliament and others/ It is usual to let the reports lie on the table for a day or two, and then to move for their adoption when "motions" are called during the progress of routine business. The motion for concurrence is generally allowed to be proposed without notice when the report only refers to the printing of documents, but objections may be taken on that ground at any time ; and it is the practice to give the necessary notice in all cases which are likely to provoke controversy and debate.^ "When a member wishes to direct the special attention of the printing committee to a paper, he may give notice of a motion that it be printed ; and this motion must go to the committee under the following rule : "94. On a motion for printing any paper being offered, the same shall be first submitted to the joint committee on printing for report, before the question is put thereon." This rule was not strictly enforced for some sessions after 186*7. Motions for the immediate printing of documents have been proposed and adopted, without reference to the committee, or the suspension of the standing order.^ Sometimes the rule has been suspended, and the order given immediately for printing — a regular proceeding in case of urgency.^ Members have also moved " to refer " certain papers to the committee, or to instruct it to consider the propriety of printing certain documents ; and such motions have been put from the chair.'^ No motions, however, for the printing of papers are now put from the chair, but are simply entered on the journals as referred 1 Can. Com. J. [1867-8], App. No. 2 (3rd and 13th Reports) ; lb. [1869], App. No. 2 ; lb. [1874], 271 ; lb. [1875], 118. The distribution of docu- ments was rearranged in 1878, pp. 220, 254, App. No. 3 ; Sen. J. pp. 218-230, 265. Number of votes and bills was increased in 1879, pp. 56, 78. ^ See Com. J. [1880], 364. Also, chapter on select committees. »Can. Com. J. [1867-8], 43 ; lb. [1870], 30 ; lb. [1873], 20, 49. * Can. Com. J. [1871], 20 ; lb. [1880], 160. Can. Hans. [1877], 686. ^ lb. [1876], 71 ; i6. [1867-8], 157 ; lb. [1882], 192. PRIXTING. 291 in accordance with the rule.^ If a member is not satisfied with the re^jort of the committee at any time, he can move against it on the motion for concurrence.^ Sometimes re- ports are only agreed to in part.^ The committee has frequently reconsidered previous decisions without a mo- tion formally proposed in the house to refer the matter back for further deliberation.^ At other times, the report has been amended on a motion first made in the house for reconsideration,'^ the more regular proceeding, since it gives power to the committee to revise its former judg- ment on a question.^ 1 lb. [1877], 47, 124, 132, &c.; lb. [1879], 353 ; lb. [1883], 391. Mr. Sp. Anglin questioned the propriety of any debate on such a motion. Can. Hans. 1877, Feb. 19 ; also, lb. p. G86. '^Can. Com. J. [1874], 304. ■' lb. [1867-8], 224 ; lb. [1879], 326. * lb. [1873], 415. » Can. Com. J. [1883], 236. * See chapter on select committees for remarks on this point. CHAPTER X. ADDRESSES, MESSAGES AND VOTES OF THANKS. I. Subject-matter of Addresses. — II. Addresses founded on resolutions. — III. Joint Addresses. — lA''. Addresses of Condolence and Congratula- tion. — V. On retirement of the Governor-General. — VI. Presentation. — VII. Messages from the Governor-General. — VIII. Addresses to Prince of Wales in 1860. — IX. Thanks to distinguished Persons. J. Subject-Matter of Addresses.— The procedure in the case of the address in answer to the speech at the commence- ment of the session has already been fully explained in a previous chapter of this work/ and it is now only neces- sary to refer to the subject of addresses generally, and to the mode of transmitting them to the sovereign or pre- senting them to the governor-general.^ The subjects on which the two houses may address the sovereign or her representative in this country are too numerous to be detailed at any length. They may relate to every matter of Canadian interest, to the administration of justice, to the commercial relations, or to the political state of the country, and in short to all subjects connected with the goA^ernment and welfare of the dominion. They may also contain expressions of congratulation or regret in reference to matters affecting the royal family or the governor-general. 1 Chap. VI. - But no address may be presented in relation to a bill or matter under the consideration of the house. 12 Lords' J. 72, 81, 88 ; 8 E. Com, J. 670 ; 1 Grey, 5 ; May, 515. ADDRESSES ON GENERAL SUBJECTS. 293 n. Addresses founded on Resolutions.— When au address to "her Majesty originates in the House of Commons, it is generally the practice to pass a resolution in the first place. This resolution may, or may not, be first considered in committee of the whole, as the circumstances of the case may demand. For instance, in 18Y7, the Commons passed a resolution in committee of the whole with refer- ence to the extradition from Canada of fugitive criminals.* In 18*75 the house passed a resolution respecting the New Brunswick School Act, without a committee of the whole, as is done in the case of the answer to the speech at the •opening of the session.- Again in 1867-8 an address was founded on a report from a select committee.^ The prin- ciple that should guide the house with reference to ;addresses of a general character appears to be this : "Whenever the question is one involving legislation, or affecting commerce, and requires considerable discussion •of details, it is advisable, and certainly convenient, to ask the house to go into committee of the whole to consider a resolution on which to base an address.* But in the case of all addresses which are passed nemine conlradicente, it is ■only necessary to propose a resolution in the house itself, without going into committee."^ In the Senate, however, it is not the usual practice to go into committee on resolu- tions for an address on a special subject.*^ The practice of the Senate with respect to addresses generally has more closely followed the practice of the English Parliament, where it has been much simplified of late years. In the •Commons the old practice continues to be followed to a large extent. ^ Can. Com. J. (1877), 237-9 ; also, Leg. Ass. (1859), 509. '' Can. Com. J. (1875), 197-203. 3 lb. (1867-8), 370, 377. *ifc. (1873), 187, naturalization ; Ih. (1878), 2.55, Canadian boundaritvs. * Can. Com. J. C1872), 292-3. Retirement of Lord Lisgar from the gov- ernor-generalship. « Sen. J. (1869), 184. 294 ADDRESSES, MESSAGES AND VOTES OF THANKS. When the resolution ibr an address has been agreed to by the house, "a select committee will be appointed to draft an address to her Majesty founded on the said re- solutions." The committee having reported the address, it will be read twice and agreed to, and ordered to be engrossed. The next step is to pass an address to the governor-general, requesting his Excellency to transmit the same to her Majesty — which address will be engros- sed and presented with the address to her Majesty by such members of the house as are of the queen's privy council of Canada.^ In the session of 1882 the House of Commons agreed to a joint address to her Majesty on the subject of the diffi- culties in Ireland as an amendment to the motion for the house to go into committee of supply." The address to her Majesty embodying the Quebec resolutions of con- federation were also passed without the formality of a previous committee.^ In the Senate, in 1882, an amend- ment was moved to the Irish address — an unusual pro- ceeding.* m. Joint Addresses.— When it is agreed in the Commons to transmit an address of the two houses to the queen, a message will be sent to the Senate requesting their Honours to imite with the house in the same. This mes- sage will be proposed as soon as the address has been passed by the house and ordered to be engrossed. When the 1 Can. Com. J. (1875), 201, 203. 2 Can. Com. J. (1882), 307, 334 ; Sen. J. 245-6, 270, 271. See 109 E. Com. J. (1854) 169 ; address on war with Russia, agreed to without reference to a committee. Also, 132 E. Hans. (,3), 307 ; Burke's »Speakers D., p. 3. Dr. A. Todd wrote me on this point : " JNIodern usage tends more and more to simplify and abbreviate procedure which is an additional reason for disjiensing with a committee to draft an address, when it can be reason- ably done by the house itself." ^ Leg. Ass. J- [1865], vol. 24, p. 67. The speaker decided that a com- mittee was not necessary, p. 74. * Sen. J. (1882), 262. JOIXT ADDRESSES. 295 Senate has received the message the address will be read by the clerk, and ordered to be taken into consideration, sometimes immediately, but more frequently on a future day. The address from the Commons always contains a blank : " "We, your Majesty's most dutiful and loyal sub- jects, the Commons of Canada." This blank will be filled up by the Senate with the words " Senate and," so that the address will read " the Senate and Com- mons of Canada in Parliament assembled," etc. It will then be ordered that the speaker do sign the address on the part of the Senate. The next step will be for the Senate to order an address to the governor-general, re- questing him to transmit the same to the sovereign. Then this address will be agreed to, signed by the speaker, and ordered to be communicated to the Commons by one of the masters in chancery for their concurrence. In this address there is also a blank to be filled up by the house, with the words, " and Commons," and a message will be sent to the Senate informing them that the Commons have agreed to the said address. When the message has been received by the Senate, they will order that " the joint address to her Majesty, and also the joint address to his Excellency, the Governor-General, be presented to his Excellency by such members of this house as are members of the privy council." ' In case the address originates in the Senate, it will be read at length at the table as soon as it is taken into con- sideration by the Commons. The blank after the words " the Senate " in the address, will then be filled up with the words, " and Commons " ; and the address con- curred in. An address will next be passed to the gover- 1 Can. Com. J. (1867-8), 225, 23G ; Ih. 66, 67, 68, 98, 108, 367 ; lb. (1869), 152, 153, 156, 168, 169 ; lb. (1871), 292, 293, 300. Can. Com. J. (1877), 237- 239, 240 ; Sen. J. 214, 215, 21(), 221, 229, 230 ; Com. J. 268 ; Son. J. 239, 240. In Can. Com. J. [1880], 57 ; Sen. J. 47, 48, Avill be seen tlio procedure in the case of the joint address to the governor-general on the subject of granting relief to Ireland. 296 ADDRESSES, MESSAGES AND VOTES OF THANKS. nor-g-oncral requesting him to transmit th(^ joint address to the queen. The Senate will then proceed to lill up the ?)lank in this address in th<^ usual way, and fommunif-ate the Tact to the Commons. The addresses will be i)resented to his Exi^ellency by such members of the Senate as are members of the privy council.' IV. Addresses of Condolence and Congratulation.— Addresses of congratulation or condolence to the sovereign are always passed nemine contradirente. Such addresses are moved im- mediately in the English houses without reference to a committee, and the same usage now obtains in the Sen- ate, but in the Canadian Commons the old practice, in reference to addresses, still continues." Again, if the houses wish to congratulate any members of the royal family on their marriage, or to condole with them on some sad be- reavement, they may do so in the form of a message.^ In ^ Sen. J. (1872), 28, 29 ; Cora. J. 16, 24 ; Sen. J. 36 ; Com. J. 29 ; Com. J. 1879, Feb. 21 ; Com. J. (1880), 78, 79, 82, 101 ; Ih. (1882), 330, 490. In the English houses such addresses are presented either by both houses in a body [74 E. Com. J. 279] ; or by two peers and four members of the House of Commons (114 E. Com. J. 373) ; or by committees [1 Ih. 877 ; 2 Ih. 462] ; or by the lord chancellor and speaker of the Commons (16 lb. -54) ; or by the lord chamberlain, or lord steward, and four members of -the Commons (130 Ih. 190, 326) ; but the Lords always learn her Majesty's pleasure, and communicate to the Commons by message, the time at which she has appointed to be attended (137 E. Com. J. 94). The same practice obtained in the old legislative council of Canada. Can. Leg. Ass. J. (1859), 145, 539, 587. ^ 113 E. Com. J. 31, marriage of the Princess Eoyal ; 116 Ih. 112, death of Duchess of Kent ; 123 Ih., attempted assassination of Duke of Edin- burgh, 142 ; birth of a princess, 309. Death of Princess Alice, Dec. 16 and 17, 1878, Lords' and Com. J. ; Leg. Coun. J. [1862], 57, 88, death of Prince Consort (joint address). Leg. Coun. J. [1863], 135; Leg. Ass. J. 167, marriage of Prince of Wales. Can. Com. J. (1867-S), 225, attempted assassination of Duke of Edinburgh. Can. Com. J. (1872), 16, 24, 29, restoration to health of Prince of "Wales. Can. Com. J. 1879, Feb. 21, death of Princess Alice (joint address). Joint address to her Majesty on her escape from assassination, Can. Com. J. [1882], 105 ; Sen. J. 73, 78, 79. 3 Can. Leg. Ass. J. (1863) 168. ADDRESSES OF CONGRATULATION, ETC. 297 England " certain members are always nominated by the house to attend those illustrious personages with the messages or resolutions ; one of whom afterwards ac- quaints the house, (in the Lords, in his place, or at the table ; in the Commons, at the bar), with the answers which were returned.'" A similar practice obtained be- fore the confederation of the provinces in the Canadian legislature. When the message had been agreed to, it was ordered that certain members do wait upon his Excellency the Groyernor-G-eneral with the message and request him to transmit the same to the proper quarter." Under the present practice, the house would order an address to his Excellency, which would be delivered to him ])y such members of the house as are members of the privy coun- cil.'^ No such message, however, it may be added, has been agreed to since 1867, the necessity for such a motion not having arisen. In 1882, the houses forwarded through his Excellenc}^ the Grovernor-General by the Atlantic cable messages of congratulation to her Majesty on her escape from an attempt on her life.* It is always usual for the two houses to present ad- • dresses to the governor-general, congratulating him in case of his elevation to the peerage.'^ In 1880, the houses passed an address congratulating the Marquis of Lome, then gov- ernor-general, and her Royal Highness the Princess Louise, on their escape from serious danger." V. Address on Retu'ement of Governor-General.— It is also the practice to pass a joint address at the proper time, express- ing regret at the termination of the governor-general's 1 May, 517-8 ; 53 Lords' J. 369 ; 95 E. Com. J. 95 ; 52 E. Hans. (3), 343 ; 136 E. Com. J. 130, 223. 2 Can. Ass. J. [1863], 168, 204. s Can. Com. J. [1867-8] 376 ; lb. [1869], 223. * Ih. [1882], 105 ; Son. J. 79. ^ Sen. .J. [1871], 25, elevation of Sir John Youn;j; to peerage as Baron Lisj^ar. « Sen. J. [1880], 53-54, 01 ; Com. J. 78, 79, 82. 298 ADDRESSES, MESSAGES AND VOTES OF THANKS. official connection with Canada. His Excellency will take the most convenient opportunity that offers of acknow- ledging^ such an address in suitable terms. In the case of Lord Lisgar, in 18*72, he did not send down a special message in answer, but deferred his reply until he deliv- ered the speech at the prorogation of Parliament.' In the next case, of the farewell address to Lord Dufferin, in 1878, it was ordered in each house to be presented by such members as were of the privy council. A member of the privy council subsequently informed the Senate that Lord Dufferin had appointed two o'clock of the afternoon of a later day, in the Senate chamber. The Commons were duly informed of the fact by message, and were accord- ingly able to be present at the reading of the address and answer. On a subsequent day, a member of the privy council presented, in each house, a copy of Lord Dufferin's reply, in order to give it a place in the journals." In 1883, the two houses passed a similar address pre- vious to the departure of the Marquis of Lome. On this occasion also, the address was ordered to be presented by members of the privy council. On the last day of the session, a few minutes before the formal prorogation, the speaker of the Commons informed the members present that he had just received intimation from his Excellency that the address would be presented in the Senate cham- ber. Accordingly, the houses having ad-journed during pleasure, the members of both assembled on the occasion of the reading of the address by the premier. Sir John Macdonald. His Excellency read his reply, which was duly reported to both houses, and entered on the journals. It was also ordered in the Senate to be printed in both lanffuao-es for the use of members.^ » Can. Com. J. [1872], 292, 293, 319, 336 ; Sen. J. 201-2. 2 Can. Com. J. [1878], 16-1, 165, 166, 171, 182 ; Sen. J. 183-85, 193. 3 Can. Com. J. [1883], 429, 430, 431, 436 ; Com. Hans. 1396 ; Sen. J. 288- 290, 292-293. PRESENTATION. 299 VI. Presentation of Addresses.— It was formerly the practice for the Canadian houses, separately, or jointly, to wait upon his Excellency the Governor-G-eneral with the ad- dresses in answer to the speech.^ When the address had been agreed to and ordered to be engrossed, it was resolved that it be presented to his Excellency by the whole house, and that such members as were of the executive council do wait upon him to know his pleasure, when he would be attended with the said address. One of the members of the executive council would then inform the house of the time when his Excellency would be ready to receive them with the address." At the hour appointed the houses adjourned during pleasure, and attended his Excellency, generally in the executive council chamber,'* but some- times at government house.^ The speaker, attended by the serjeant-at-arms with the mace, and by the members of the house, would proceed in carriages to the place of meeting. On being admitted into the presence of his Ex- cellency, the speaker read the address in both languages, the mover and seconder being on his left hand. His Excel- lency would reply, and then the house retired.^ In case of ' Upp. C. Ass. J. [1792], 6, 7 ; Low. Can. Ase. J. [1792], 58 ; Can. Ass. J. [1841], 67 ; lb. [1859], 61, &o. - In the old assem]:)lies of Uj)per and Lower Canada a deputation of members was ordered to attend his Excellency to learn the time and place for receiving the address. Tliis deputation would report the answer to the house. On December 26, 1792, wo find this entrj' in the journals of l-iower Canada : " The house is unanimous that the sj^eaicer set out at noon, preceded by the serjeant-at-arms bearing the mace, that the mem- bers follow to the chateau St. Louis, where Mr. Speaker will read the address, after which a member will read the same in English [Mr. Panet could not read English very accurately], that the clerk do follow the house at some distance in case of need, and that the house do return in the same order." 1 Low. Can. J. 58, 60 ; I Upp. Can. Ass. J. <>, 7; 1 Can. Ass. J. 67. •' Quebec Mcrcurij, I'arl. Deb. Feb. 28, 18()3. * Low. Can. .J. [1792], 60 ; Can. Lt^g. Ass. J. [1841], 69. ^ The governor-general replied only in English to the addresses to the old assembly of Lower Canada, and of the old Canada legislature. It was usual for the epeaker of the legislative council to read the speech to tlio 300 ADDRESSES, MESSAGES AND VOTES OF THANKS. a joint address, the speakers of the two houses would pro- ceed in state to the place of meeting, and would enter side by side into the presence of the 2:oYernor-genoral ; and the president or speaker of the legislative council would read the address to his Excellency in English and French.^ On returning to their respective houses, the speakers would always communicate the reply of which they had received a copy on leaving the presence of the governor-general. On such occasions the legislative councillors were in full dress, as is always the case with the senators when his Excellency opens and prorogues Parliament. The mem- bers of the assembly, however, presented themselves in their ordinary dress.'^ The practice of presenting the addresses in answer to the speech by the houses in a body continued up to 1867,^ "when the more convenient course was adopted of present- ing such addresses by members of the privy council.'' It had, however, for many years previous been the practice to present addresses on general subjects, through execu- tive councillors,^ or the speakers of the two houses,^ or by committees of the same.^ Addresses for papers and re- turns were formerly taken up by a committee, one of whom would sometimes report the reply.* It was soon, however, found for the convenience of the house to pre- sent such addresses by members of the executive council f two houses in French, after its delivery by his Excellency. It was not till the repeal of sec. 41 of the Union act of 1. [1874], 8; //>. [1875], 210 ; remarks of ^Ir. S^ieaker Christie as to practice. 308 MOTIONS IN GENERAL. the matter had been already disposed of otherwise. The Senate finally resolved that " the notice should not be re- ceived by the clerk," inasmuch as the subject-matter thereof "had already boon considered during the present session and referred to the committee on contingent accounts.'" It is not an unusual practice in the House of Lords — and the same has been sometimes followed in the Senate — to allow a member, in giving' notice, to make remarks of an ex- planatory character as to the nature of the motion, as to the reason for proposing it, as to the course the member intends to pursue,^ but no remarks of a controversial or argumen-^ tative character should be made, nor will any debate be permitted at such a stage, when the house has had no opportunity of considering the subject-matter of the motion." No notice need be given in the Senate of public bills.^ Neither has that body any special rule, like that of the House of Commons, requiring a seconder ; but it is the practice, nevertheless, to have a motion duly seconded.' As soon as a member of the House of Commons has prepared his motion, he will hand it to the clerk, or clerk assistant, whose duty it is to see that it is in order," ^ Sen. J. [1880], 201-2; Hans., pp. 370-5. See somewhat analogous Eng- lish case (cited by Mr. Dickej' in debate), 7th June, 1858, when Lord Kingston gave notice of certain questions. The lords resolved that the questions had been sufficiently answered, and would not jx^rmit the renewal of the subject. 2 141 E. Hans. (3), 1383 ; 145 lb., 1869 ; 149 Ih., 1193, 1700; 157 Ih., 930; 210 lb., 378. Can. Pari. Deb. [1870], 776. ^ 164 E. Hans. (3), 175. In fact, the necessity of giving notice precludes any debate ; such explanations as are made are given Avith the indulg- ence of the house. ^ R. 39 ; chapter on public bills. Private bills are brought in on petition. 5 Sen. J. [1878], 190, 191,193; lb. [1883], 227, &c. In the Lords any lord may submit a motion for the decision of their lordships without a seconder — the only motion requiring a seconder, by iisagc, being that for the address in answer to the queen's speech. 109 Lords' J., 10, 35, 70, 92, 93 ; May, 296. * The clerks at the table may amend notices if they are irregular. The proper and convenient course is for the clerk to direct the attention of the RULES RELATING TO MOTIONS. 309 and to insert it in its proper place in the votes and pro- ceedings. E-ule 31 orders : — "Two days' notice shall be given of a motion for leave to pre- sent a bill, resolution, or address, for the apj^ointment of any committee, or for the putting of a question ; but this rule shall not apply to bills after their introduction, or to private bills, or to the times of meeting or adjournment of the house. Such notice to be laid on the table before 5 o'clock, p.m., and to be printed in the votes and proceedings of that day." The latter part of this rule is not very strictly carried •out — the practice being to accept motions up to six o'clock in the evening. A motion sent in on any sitting day will appear according to the order of its presentation at the end of the votes and proceedings of the following day, and on the order paper among the notices of motion on the second day after its receipt at the table. Notices of motion for the introduction of bills appeared up to 18*79 only in the votes and proceedings, and were brought up when motions were called during the progress of routine business, but now they are placed lirst on the order paper. n. Rules Relative to Motions.— All motions in the Commons must be in writing or print, and seconded before they can be proposed from the chair". It is the common practice for members to obtain their motions from one of the clerks assistant who has them prepared in print from the votes and proceedings. The 33id rule provides as follows : — '•' All motions shall be in writing and seconded, before being debated or put from the chair. When a motion is seconded it shall speaker to any special irregularity, wlio will conununicato, if possible, with the mcinbor; but in onliuary cases the clerk may conlbr wilii the member himself. 188 E. Hans. (:>), lOGG. Soowfra, p. 323. 1222 E. Hans. (3), 421 ; 22G lb., 386 (no seconder, and motion not put.) The speaker in the Canadian Commons oven ruled on one occasion that the motion for the adjournmont of the house should properly be in writing ; but the practice has boon invariably not to enforce the rule with respect to such purely formal motions. Author's Notes, April 3, 1878. 310 MOTIONS IN GENERAL. I)C road in l^]ii,i^lisli and in l^'rcnch by the Hpcakci-, if he Ije familiar with lii)th languages; if not, the speaker shall read the motion in one language and direct the ch'riv at tlie table io read it in the othci", bcfbi'o debate."^ No motiou is regularly before the house until it has been, read, or in parliamentary language, proposed from the chair, when it becomes a question.^ Wh(!n the house is in this way formally seized of the question, it may be debated, amended,^ superseded,* resolved in the affirmative,''' or passed in the negative,'^ as the house may decide. If a motion be out of order, the speaker will call attention to the irregularity, and refuse to put it to the house under rule 37 : " Whenever the speaker is of opinion that a motion offered to the house is contrary to the rules and privileges of parliament, he shall apprise the house thereof immediately, before putting the question thereon, and quote the rule or authority applicable to the case." Consequently if, on reading the motion, he detects an irregularity, he will at once apprise the house of the fact without waiting to have a point of order raised.^ It seems from the English authorities to be the duty of the speaker to take it for granted that whoever addresses the house will do it in order, and he may well presume there- fore, that a member proceeding to speak, when there is no question before the chair, will conclude with a motion and bring himself in order.- ^ See supra, pp. 217-19 on the use of the French language. - May, 298. ^Can. Com. J. [1876], (iO. * Can. Com. J. [1870], 237 ; Sen. J. [1876], 132 ; 121 E. Com. J., 78. » Can. Com. J. [1877], 60, 80 ; 129 E. Com. J., 114. « Can. Com. J. [1877], 132; 129 E. Com. J., 112. ' 76 E. Hans. (3), 1021 ; 112 E. Com. J., 157 ; 115 lb., 494 ; May, 298. See supra, p. 167, as to the duty of the speaker under such circumstances. 8 Pari. Reg. [62], 200; 224 E. Hans. (3), 1236; Can. Hans. [1879], 1983-5. But there is manifest convenience in requiring that the member should first read his motion. After he has concluded his speech it may be found COMPLICATED QUESTIONS. 311 Motions are frequently proposed and then withdrawn, but this can be done, under rule 31 of the Commons, onl}^ " by leave of the house, such leave being- granted without any negative voice." The 16th rule of the Senate goes further and will not allow a member even " to modify " his motion except with the unanimous consent of the house. The motion, when proposed from the chair, must appear in the journals as withdrawn with the leave of the house.^ If an amendment has been proposed to the motion, it must be first withdrawn before leave can be given to retire the main question." When a member expresses his wish to withdraw his motion, the speaker will ask : " Is it the pleasure of the house that the hon. member have leave to withdraw his motion ?" and if there be no objection the motion will be withdrawn, and so entered on the journals ; but if a member dissents the speaker must put the question.^ As respects what are known, in parliamentary lan- guage, as " complicated questions," they may always be divided into distinct parts with the consent of the house. No individual member, however, can ask, as a matter of right, that such a question be divided, since the house alone can properly decide whether it is complicated or not and into how many propositions it may be divided. The fact is, the necessity of dividing a complicated question may be obviated in a great measure by moving amend- ments to it. Bnt, in any case, it is always open to a mem- ber to move formally that a question be divided.* that the motion is out of order or otherwise not del)atable. The pre- cedent in the Canadian house, just cited, shows that, while tlie practice is as stated in the text, it is not one to be encouraged. See remarks on the subject in Waples' Handbook of Parhamentary Practice, p. 11(>. » Can. Com. J, (1877), 36 ; 129 E. Com. J. 215 ; 18G E. Hans. [3], 887 ; Sen. J. (1867-8), 277 ; lb. (1882), 66. '' Can. Com. J. (1876), 227 ; 129 E. Com. .7. 215 ; 223 E. Hans. (3), 1140 ; 227 76. 787 ; 230 Ih. 1026 ; 250 lb. 1540-41. ■' 186 E. Hans. (3), 887 ; May, 2!»9. * 2 Hatsoll, 118-120. 312 MOTIONS IN GENERAL. A motion which contains two or more distinc-t proposi- tions may be divided so that the sense of the house may be taken on each separately.' In the cas(} of motions res- pecting select committees especially, it is the practice of the Canadian house to combine several propositions in one — that is to say, the object of the committee, names of members, number of quorum, power to send for persons and papers, etc. But in the session of 1883, Sir John Macdonald followed the more correct English practice of separating the different parts of a notice of motion respect- ing a committee on the subject of licenses for the sale of intoxicating liquors. This is the more logical and conven- ient form of procedure, since it gives the house an oppor- tunity of deciding on each distinct proposition." A motion on the order paper must be in accordance with the notice in the votes ; and should a member desire to substitute another, or alter its terms, he must first obtain the leave of the house.^ In the English house there is no special rule, as in the Canadian Parliament, as to the interval between the notice and motion, but it is always necessary that " the terms of a motion or question should be printed at length in the votes at least one day " previously to being brought up in the house.' But this rule is not applied to resolutions to be proposed in committee of the w^hole.'^ It is considered sufficient if a member gives notice of the jiurport of his pro- posed resolution. The convenience of the house, however, is best consulted in the case of every important question by giving the resolution in full in the votes a day before 1 253 E. Hans. (3), 1763-4. ^ Can. Com. J. [1883], 125-8, and Votes, p. 142. For examples of Cana- dian practice respecting committees, see Jour. 1879, pp. 248-9. For English practice, 137 E. Com. J. 65-6. ' Can. Com. J. [1873], 326 ; 78 E. Hans. (3), 717 ; 212 lb. 218, 219 ; 235 . b., 904 ; Can. Hans. [1876], 535 ; lb. [1879], 1251. * 148 E. Hans. (3), 865 ; 205 lb., 774 ; 207 lb., 143 ; May, 286. ^ May, 286. Sardinian Loan, E. Com. J., June 12, 1856. MEMBERS PROPOSE THEIR OWX MOTIONS. 313 it is to be considered in committee ; aud this is now invariably done in the Canadian Commons.' If a member refuses to proceed with a motion, the house cannot force him to do so, but he has a right to drop it.' A member who has given notice of a series of resolutions may withdraw some of them and go on with the others.' A member may not propose a motion in the absence of ■another who has placed it on the notice paper, except with the general consent of the house.* Merely formal motions for the adoption of reports or for certain i)apers to which there is no objection, are frequently permitted to be made,' but all motions involving discussion must be proposed by the member in whose name they api)ear on the paj^er. For instance, in the session of 1877 Mr. Speaker interrupted a member who was proceeding to move a resolution with reference to a prohibitory liquor law, in the absence of Mr. Shultz, in whose name it appeared on the notice paper .*^ It is quite customary for members to send in notices in the names of absent members who have rec[uested them to do so.'' Ministers also have the privilege to propose the motions of their absent colleagues. One member may take charge of a public bill in the absence and with the permission of another member. When a member has dropped a public ^ Ees. respecting inland revenue, adulteration, gas and gas metres, V. and P. of Feb. 15 {pp.43) and 23 Feb. (p. 7G-7) ; 20 March, 1877 (pp. 172-3) ; Can. Hans. [1877], 248, 853-55. Here :Mr. Laflamme (minister of inland revenue) only gave, in the first instance, notice of the substance of the proposed resolutions ; but subsequently he published them in detail in the votes before he moved them in committee of the whole. ^ 32 Pari. Eeg., 43. 3 Mr. Gladstone's motion, 234 E. Hans. (3), 385. * May, 257-8. 231 E. Hans. (3), 662. where we find the speaker would not allow a member to move a clause in a bill of which notice had boon given by anotlier moml)er. * For instance, March 4th, 1878"; Sir J. A.;:Macdonalil, in absence of Dr. Tupper; -Mr. Taschereau, of iNIr. Frechette. Can. Hansard, pp. 721, 738. Very commonly done in 1879 and sul)Sequont years. ® Author's Notes. Also, Northern K.li., Can. Hans. [1877J, 1%. '2E. Hans. (1), 439. 314 MOTIONS JN GENERAL. bill, or it haw disappeared from the order paper it may be moved by another mom])er.' It a member should be uusoated in the course of" a sessioii, another member will not be permitted to propose a motion which appears on the paper in the name of the former, though of course he may renew it on his o-wn behalf- No member may move the discharge of a bill without notice, in the absence of the member who has it in charge and who has not given any such permission;^ Neither can any motion be with- drawn in the absence of the member who proposed it; but it may be negatived or agreed to in such a case on the question being put formally from the chair/ III. Motions relative to Business.— It has been decided in the English Commons that a motion, even in reference to the business of the house, can only be taken up out of its appointed order by " universal assent." For instance, when it was proposed in the English Commons to take up immediately, out of its regular place, a motion to the effect that for the remainder of the session certain days should be at the disposal of the government, Mr. Speaker Brand decided that this could only be done with the general consent. " With the permission of the house," he said, " a motion relating to the business can be made without notice. If it is the pleasure of the house that the motion ^ Can. Sp. D 109. The Insolvency Bill, 1876, introduced by JNIr. Bourassa,. disappeared from the order paper (the house refusing to read it then a second time), but it was revived by Mr. Caron ; Journ., pp. 113, 245. It is usual to allow a member to bring in a bill for another when there is no- opposition, but not when opposition is expected ; Mr. Sp. Brand, 209 E, Hans. (3), 330. ^ Mr. Langevin's motions, March 5, 1877. 3 187 E. Hans. (3), 208 ; 216 lb., 208, 276-7 ; 240 lb., 1675 ; 247 lb., 1403. * 159 E. Hans. (3), 1310. In 1880 Mr. Schultz moved that the house go into committee of the whole on a North-'West Colonization Land Bill, but the debate was adjourned, and when the question was again taken up, Mr» Schultz was absent. The motion for committee was then negatived and. the bill withdrawn. Can. Com. J., \vi. l'49, 266. RELATING TO BUSINESS. 315 should be f)ut at once I shall do so, but this must be by- general assent. If there had been a single dissentient voice I would have submitted to the house that such a question could not be put." ' In 18*79, a similar case arose in the Canadian House of Commons, and Mr. Speaker Blanchet decided that the motion could be made only in its regular order. At the close of the day's proceeding, it was made with the general assent of the house." The 24th rule provides for all items on the order paper being taken up in their regular order.'' Many motions known as " unopposed" ^ are frequently made without notice, in accordance with the 32nd rule of the Commons, which provides : " A motion may be made by uiKinimous consent of the house without previous notice." These motions refer to the adjournment of the house over a holiday or a religious festival," to leave of absence for members, to the addition of members to committees^ and to other matters connected with the business of the house.'^ But, as already shown, if any member object to such motions being made without notice they cannot be pressed.'' It may be properly added here that it is the general practice in the English Commons to give preced- ence to a motion respecting the adjournment of the house (of which notice has been given) over other business.'* 1 226 E. Hans. [3], 94, 127. "^ Can. Hans. [1879], 650. On government days, all government notices appear and are first taken up on the order paper. 3 Supra, p. 253. Can. Hans. [ISSO-l], 140-1-2. In this case it was attempted to take a notice of motion out of its plarc, and give it j>ri(irity, wliich, of course, could not be allowed. *Any business may be considered "unopposed" when no notice of opposition is given. — Mr. Sp. Brand. * Supra, p. 241. « Can. Com. J. [lS(i7-S], 247, 422, &v. ; Ih. [1873], 370. ' May, 288; 220 E. Hans. [3], f)74 ; Can. Hans. [1878], 529. " 240 E. Hans. [3], 1070 ; 252 I h. 422 ; 2(11 Ih. 1335. 316 MOTIONS IN GENERAL. rv. Questions of Privilege. — Questions of privilege may always be considered in either house' without the notice necessary in the case of motions generally. By the 38th rule of the Commons it is provided : " Whenever any matter of privilege ai-ise.s, it shall be taken into consideration immediately." It is usually the practice in the House of Commons to bring' up a question of privilege after prayers, and before the house has taken up the orders of the day. Only in very aggravated cases, requiring the immediate interposi- tion of the house, will any business be suddenly inter- rupted. If a member is insulted or attacked, or some disorder suddenly arises a debate may be interrupted f for, as it has been clearly expressed by an ancient author- ity, " whether any question is or is not before the house ; and even in the midst of another discussion, if a member should rise to complain of a breach of the privileges of the house, they have always instantly heard him." ''' Questions of privilege are very varied in their character, but it may be stated in general terms that they refer to all matters affecting the rights and immunities of the house collectively, or of members in their representative character. In this category may be placed : motions touching the seat or election of members ;^ reflections or libels in books and newspapers on the house or members thereof,' or any of its committees ;" forgery of signatures 1 Sen. Deb. [1876], 325. 2 65 E. Com. J. i:U ; 1^ Ih. 483. » Mr. Williams Wyuu, Feb. 11, 1836 ; Mirror of P. vol. 31, p. 97. * Election returns of Muskoka, West Peterborough [1873], 5, 6, 10, 37 ; Louis Riel, 15th April, 1874 ; members alleged to be public contractors, April 9th and 14th, 1877 ; supra, pp. 131-3. Carlow election, 91 E. Com. J. 24 ; Stamford election, E. Com. J. 1848, May 10 ; 98 E. Hans. [3J, 931 ; 97 E. Com. J. 263 ; 245 E. Hans. [3] 518. ^Mr. Plimsoll, E. Com. J. 20th Feb. 1873. Morning Freeman ancX Courrier d' Outaouais, Can. Com. J. [1873], 133, 167 [supra p. 193] ; IMr. Piche [clerk asst.], Feb. 19th, 1878, Can. Hans. See supra, p. 192, chapter on privileges, 6 Mr. R. S. France, 129 E. Com. J. 182. QUESTIONS OF PRIVILEGE. 31T to petitions ;' motions for new writs ;- questions afFectiiig the internal economy or proceedings of the house ;' appli- cations for the discharge of persons in the custody of the serjeant-at-arms ; ' interference of officials in elections.'' Prima facie, any question affecting a member is considered a case of privilege, but in order to entitle a member to bring it up on that ground he must show that it affects him since he became a member of this house, and con- sequently in his character of a member." In the Canadian Commons members are constantly in the habit of correct- ing reports of their speeches, or inaccurate statements in the press on the ground of privilege ;" and such personal explanations are always patiently heard by the house. But it is very clearly laid down by the English authorities that if a member has a complaint to make of a newspaper, he should formally move to have it read at the table, and then make a motion in relation thereto, if he desires to have the matter discussed and dealt with by the house.'* If a member rise to make a personal explanation in the English Commons and proceed in the course of his remarks to complain of attacks in a newspaper, he is not allowed to proceed unless he is prepared to take the proper parliamentary course under such circumstances.*^ 1 E. Com. J. 1865, May 8, Azeem Jah. ; 178 E. Hans. (3), 1()04 ; 238 lb. 1737-41. •^ Mr. Norris, Can. Com. J. [1877], 264 ; 146 E. Hans. 770 ; 218 lb. 1262,, 1843-4. A report of a select committee on the issue of a writ has been treated as a question of privilege as affecting the seat of a member; 24 5 E. Hans. (3), 576-8. ■' Translation of official debates. Can. Hans. [1876], 92 ; Can. Hansard committee, April 11th, 1878, p. 16. * Washington Wilks, 150 E. Hans. (3), 1314, 1404. •^ AVelland and Chicoutimi elections. Can. Com. J. [1873], 190, 269. 164 E. Hans. (3), 1286. Stipm, p. 192. ' Can. Hans. 1878, Feb. 18th. '^ 150 E. Hans. (3) 1022, 1066, &c. 219 lb. (3), 394-6 ; 2:'.9 //.. 536 ; 261 lb. 1667-70 ; 184 lb. (3), 1667. See chapter on privileges (p. 192, ?).), where a number of cases in point are given in full. ■•' Mr. Bailie fJochran, 184 E. Hans. [3] 1667. 8 1 8 MO TIONS IN GENERA L. And if a mouilHT brings forward a matter of privilojL^o of this character the motion with which lie concludes should be relevant thereto.' It is the practice to give questions of privilege the pre- cedence over other matters when they appear among the notices of motions. For instance, a notice for the expul- sion of Louis lliel, which was low down among the notices, was given the priority on the 15th of April, 1874. The question was immediately taken up after half-past seven, when the speaker resumed the chair, though an hour was set apart by standing order 19 for the considera- tion of private bills. On the following day the same question had the precedence, though it was a g'overnment day.' In 1877 a motion for a new writ for Lincoln, in place of Mr. Norris, who had entered into a public con- tract, was placed among the notices ; but it was taken up on motion of Sir John A. Macdonald, without any objec- tion being made, on a day when notices of motion were not likely to be reached.' Sir Erskine May has this observa- tion on the subject : " It has been said that a question of privilege is properly one not admitting of notice ; but where the circumstances have been such as to enable the mem.ber to give notice, and the matter was. nevertheless, bond fide a question of privilege, precedence has still been given to it." ' When a debate on a question of privilege has been adjourned until a future day, priority will still be given to it. We have seen that this was done in the case of Louis Kiel, mentioned in a previous page, and there are 1 219 E. Hans. [3], 396. Blackmore's Sp. Dec. [1882], 168. - Can. Com. J. and Votes, 1874, April 15 and 16. ^ Can. Com. J. [1877], 264. On another occasion the speaker decided that a motion for the adoption of the report of a committee on printing and reporting partook of the character of privilege, and might therefore take precedence over the other notices, when they were reached; Can. Hans. [1876], 343-4. ' May, 291. Expulsion of James Sadleir, 143 E. Hans. (3), 1386; 144 lb., 702. Case of Mr. Bradlaugh, 261 lb. 218, 282, 431. QUESTIOXS OF PRIVILEGE. 319 numerous precedents in the English journals illustrat- ing the same point.' In the session of 1883 a motion was made without notice in the Canadian house respecting a double return for King's County, in Prince Edward Island. The debate thereon was adjourned without fixing a day or giving the motion a place on the orders ; but it was taken for granted that it would have precedence whenever the house was ready to resume the subject. This precedence was accordingly given the question on a later day, and on every occasion when it came before the house." But the house will refuse any priority over other motions when the question is not Ootid fide one of privilege, or it is not of an urgent character.'^ The speakers of the English Commons have decided that " in order to entitle a ques- tion of privilege to j)recedence over the orders of the day, it should be some subject which has recently arisen, and which clearly involves the privileges of the house and calls for its immediate interposition." * V. Motions of Want of Confidence.— When a motion of want of confidence in the government of the day is under con- > 92 E. Com. J. 450 ; 38 E. Hans. [3], 1429 ; 95 E. Com. J. 13, 15, 19, 23, 70; 51 E. Hans. [3], 190, 251, 358, 422 ; 52 lb. 7 ; 238 Jb. 1741 ; 120 E. Com. J. 252. ■•' Can. Com. J. [1883], 68, 101, 107, 257. See remark.s of Mr. Speaker Kirkpatrick as to precedence of sucli a question, Hans. p. 102. In case it is proposed to take tiie debate up on a particular day, it siiould be so fixed in adjourning the debate. See I\Ir. PlimsoU's case, 17th Feb., 1880, 135 E. Com. J. ••' 146 E. Hans. [3], 769 ; 159 lb. 2035. * 159 lb. 2035 ; 174 lb. 190. Motions caUing attention to imputations on members have sometimes been treated as questions of privilege in tlio English House of Commons and have consequently had precedence given to them, but more frequently have been treated as ordinary motions ; but whenever thej^ have been treated as privilege, urgency has been of the essence of the motion. Mr. Si>eaker Brand, 253 E. Hans. [3], 432-3 : Blackmore's Sp. Dec. [1882], Kio-fi. See a case where it was decido(l that a motion with res{>ect to the arrest of a member who had been some- time in prison could not be treated as a matter of privilege bince urgency could not apply ; 261 E. Hans. [3], 692-94. 320 MOTIONS IN GENKRAL. sideratiou, it is customary to give it proccdenco over all other matters, aud to continue the debate from day to day until it is concluded. But it is only with the unanimous consent of the house that the order of business, as ar- ranged under the nineteenth rule, can be disturbed. In the session of 18*76, Sir John Macdonald, then leader of the opposition, moved an amendment in favour of protec- tion to Canadian manufactures and industries, on the mo- tion for going into committee of supply. Previous to the adjournment of the debate, Mr. Mackenzie, the premier,, pointed out that the motion was equivalent to one of want of confidence in the government, and contended that on that account the debate should take precedence of all other matters until it was concluded. He pressed its continu- ance on the following Monday (the debate having com- menced on Friday), M^hich, under rule nineteen, is de- voted to notices of motions and other private busi- ness. It was pointed out, on the other hand, and with obvious truth, that it was entirely irregular to interfere with the appointed order of business, unless the house agreed unanimously to suspend the standing order, or there was an urgent question of privilege under consid- eration. The speaker sustained this contention at the time, and subsequently showed the house by reference to the English debates that motions of want of confidence could only proceed on days devoted to private business, with the consent of all members interested.^ In a subse- quent session the same question arose, and the speaker, after careful deliberation, came to the same conclusion as on the previous occasion.^ A case in point occurred in Eng- ^ Can. Hans. 1876, March 10th and 13th. - Can. Hans. [1878], 946-948. On a previous day the speaker had reversed his decision of 1876, having been misled by a careless report of some of Mr. Gladstone's remarks, which appeared to convey the idea that a motion of want of confidence should have precedence ; p. 946. But on further consideration of the point Mr. Speaker AngUn found that he had been led into au error. QUESTIONS PUT BY MEMBERS. 321 land duriug the session of 1859. Lord John Kussell moved an amendment against the second reading of the Reform Bill of that year, involving the fate of Lord Derby's administration. At the close of the first day's debate Mr. Disraeli, then chancellor of the exchequer, said he thought it would be convenient that the debate should proceed continuously, and, therefore, he would suggest that it be adjourned until the next day. Of course, he added, he was in the hands of honourable members who had notices of motions for that day, but he trusted they would accede to the course proposed. The house agreed to go on with the debate and give it precedence over the private business.' VI. Questions put by Members.— It is an established rule of par- liamentary practice, and one that should always be strictly observed, that no member is to address the house, unless it be to speak to a motion already under debate, or to pro- pose one himself for discussion. A practice, however, has long prevailed in Parliament, and is now established in the Senate and House of Commons, of putting questions to ministers of the Crown, concerning any measure x^ending in Parliament, or other public matter, and of receiving the answers or explanations of the persons so interrogated. This deviation from the general rule respecting motions has arisen from the necessity that experience has shown of obtaining for the house material information, which may throw light upon the business before it, and serve to guide the judgment in its future proceedings. The pro- cedure in the Senate on such occasions is quite diiferent from that of the Commons. Much more latitude is allowed in the upper house,^ and a debate often takes * 153 E. Hans. 405 ; Can. Hans. [1878], 047. No control is conceded to ministers over orders jn the hands of private members which are jroverned by the ordinary rules of Parliament. II. Todd Pari. Gov. in England, 3-3. 2 Sen. Deb. [1870], 883, 912, 1090; Ih. [1871], 51-00; //-. [1872], 38,45, 62, 188 ; lb. [1874], 95-99; lb. [1875], U2-Ur,;IL [1879], 51-52 ; lb. [1880] 106-112 ; lb. 350-352 ; lb. [1882], 50, 295 ; //'. [1883J, 200-4. 21 322 MOTIONS IN GENERAL. place on a mere question or inquiry, of which, however, notice must always be given when it is of a special char- acter.' Many attempts have been made to prevent debate on such questions, but the Senate, as it may be seen from the precedents set forth in the notes below, have never practically given up the usage of permitting speeches on these occasions — a usage" which is essentially the same as in the Lords' house.'' The observations made on such oc- casions, however, should be confined to the persons mak- ing and answering the inquiry, and if others are allowed to offer remarks these should be rather in the way of ex- planation, or with the view of eliciting further informa- tion on a question of public interest.' The more regular, and now the more common practice, is for a member, in cases requiring some discussion, to give notice that he will call attention on a future day to a public matter and make an inquiry of the government on the subject. Then it is perfectly legitimate to discuss the whole question at length, as the terms of the notice show the intention of the person who puts it on the paper.^ This practice of the House of Lords has been followed in the Canadian Senate since 18^7." 1 R. 14. ^ In the first session an effort was made to confine the Senate to the practice of the Commons, but to no avail. Deb. [1867-8], 34, 40-41. See remarks wlien changes were made in S. O., Deb. [1876], 299-300. 2 191 E. Hans. (3), 690-4 ; 209 lb. 639 ; 243 lb. 1502-1507 ; 244 lb. 511- 516 ; 8S6-892 ; 246 lb- 1-8 ; 247 lb. 1404-7, 1704-8 ; 266 lb. 1083 ; 276 lb. 282. * Sen. Hans. [1883], 240-1, 315. 5 209 E. Hans. (3), 606 ; 210 lb. 235-242. Sen. Deb. [1879], 644-5 ; lb. [1880], 80-82 ; lb. 158-168 ; lb. 322-340; lb. [1882], 149-167. * Senator Macpherson (subsequent!}' speaker) commenced the practice. Sen. Deb. [1877], 313, 375 ; lb. [1879], 76, 171. In the Senate the discus- sion is sometimes permitted to run over several daj'S on such an inquiry, Avhich is not customary in the Lords, since a debate on a mere question cannot be adjourned. Neither is any mention made in the Lords' jour- nals of a debate on such an inquiry as it is not in the nature of a motion. Compare 210 E. Hans, and 209 lb. 606, with same dates in Lords' J. Also, March 31st, 1882 (Irish Jury Laws). For Sen. practice, Jour. [1877], 231 ; CORRECTION OF QUESTIONS. 323 In the House of Commons, not only is a notice necessary in the case of all questions under rule 31,' but they must be limited in their terms according to rule 29. "Questions may be put to ministers of the Crown re]atin<^ to public affaii's, and to other members relating to any bill, motion, or otlier public matter connected with the business of the house, in which such members may be concerned ; but in ])utting any such question, no argument or 0])inion is to be ottered, nor any facts stated, except so far as may be necessary to explain the same. And in answei-ing any such question, a member is not to debate the matter to which the same refers." Such cjuestions are printed among the notices and appear on the order paper in the plaic allotted to them under rule 10. Tlie Canadian practice is identical with that of the English Commons, as stated by Mr. Speaker Brand : " No argumentative matter shall be introduced, and if such matter appears, it is always struck out by the clerks at the table, by the orders of the speaker."- It is the duty of the clerk to point out any irregularity to the speaker, and if the latter is of the same opinion he will order the clerk to communicate with the member, so that he may have an o])portunity of amending his notice.'' It is always within the right of a member to call attention to the matter as one of privilege, and to challenge the action of the speaker.^ If an irregularity should escape the attention of the clerks at the table, the speaker will point it out before the member Ih. [1878], 9'), 95, 99, 103 ; Ih. [18831, 79, 137, 25(5. The practice is, in the Lords, to ask a qtiestion and at the .same time, to move formallj' for papers, and thou the motion ai)i)oar.s in the journals. 2()8 K. Hans. (3), 138(5, 1802 ; 114 Lords' J. 113, 128 ; 20!) E. Hans. (3), 547; 114 Lords' J. 550. ' Supra, J). 309. ■^217 E. Hans. (3), 37, 803 ; 225 lb. 1141 ; 240 lb. 046 ; 255 lb. .321-2. Committee on public business, July 8th, 1878, pp. 9-10. •' 240 E. Hans. (3), 040. If it is not possible to communicate with {\\o member, then it is for the officers of the house to make the question con- form as nearly as possible to the rules of the house. 200 E. Hans. (3)» 408. ' 240 E. Hans. (3), 053. 324 MOTIONS IN GENERAL. stands up ; and he is then generally permitted to put the question when he has struck out the objectionable words/ A question has been refused a reply because it referred to a matter of opinion.^ It should " be simply and severely accurate in its allegations." If it is hypothetical it is " objectionable," and as a rule should not be answered.^ It has, however, been decided in numerous instances in the English Commons that a member may make any explana- tion which is necessary for the clear understanding of his question, but he may not enter upon any general discus- sion/ A question has not been allowed to go on the paper on the ground that it impugned the accuracy of certain information conveyed to the house by the ministry/ The answer to a question should be brief and distinct, and limited to such explanations as are absolutely necessary to make the reply intelligible, but some latitude is allowed to ministers of the Crown, whenever they may find it neces- sary to extend their remarks with the view of clearly ex- plaining the matter in cjuestion.'' When the answer to a question has been given, it is irregular to comment upon it, or upon the subject thereby introduced to the house ; the necessary consequence of which would be to engage the house in a debate when there was no motion before it at all." No member may put a question to another member unless it refers to some bill or motion before the house.^ Nor are questions usually put on matters which are at the 1 Can. Hans. [1878], 569, Miramiclii valley E. E., ]\Ir. Mitchell, Feb. 27th. Mr. Mills, Dec. 22nd, 1880, orders of day, " without cause " struck out. Can. Hans. [1882], 73 ; Ih. [1883], 107, 125. 2 208 E. Hans. (3), 786. => 2 Todd Pari. Gov. 342. * 22-1 E. Hans. (3), 473, 1467, 1715. 5 240 E. Hans. (3), 646. 6 161 E. Hans. (3), 497 ; 215 Ih. 641. ^ 39 /'». (1), 69. A second question, arising out of or bearing on an answer to a question is allowed in the English house, but not a debate. 261 E. Hans. (3), 410, 1204-5. 8 197 Ih. (3), 717 ; 235 Ih. 684. Can. Com. E. 29. AMENDMENTS. 325 time the subject of proceedings in the courts.^ Nor is it proper to put a question on the paper, affecting the charac- ter or conduct of a member. The proper course, when the conduct of a member is challenged, is to propose a direct motion, in order that full opportunity may be given for statements on both sides.^ A member is guilty of an irre- gularity who puts a question which he has been informed by the proper authority is irregular.^ VII. Motions in Amendment.— When a motion has been resfu- larly made by a member and proposed to the house by the speaker, it is the right of any other member to move to amend it, in accordance with the forms sanctioned by par- liamentary usage. Certain members may not be willing to adopt the question as pioposed to them, and may conse- quently desire to modify it in various respects. Or they may wish to defer it to another occasion when the house will probably be better able to deal with it. Or they may be disposed io go further than the motion, and give fuller expression to the sentiments they entertain on the question. In order to meet these different exigencies, certain forms have been established in the course of time ; and now every member is in a position to place his views on record, and obtain an expression of the sense or will of the house on any important question which can be properly brought before it. Every member has the right of moving an amendment without giving notice thereof.* This amendment may propose : 1. To leave out certain words ; 2. To leave out certain words, in order to insert or add others ; 3. To insert or add certain words. 1 246 E. Hans. (3), 686 ; 2.57 Ih. 448-9. ^ 210 lb. 35-9 ; Blackmoro's Sp. D. [1882], 129-30. => Ih. [1883], 44 ; 257 E. Hans. (3), 448-9 ; 265 lb. 879-SO. '' May, 317 ; Cushiug, p. 517. 326 MOTIONS IN GENERAL. Those several forms of amendment are subject to certain general rules, which are equally applicable to them all. All motions should properly commence with the word " That." In this way, if a motion meets the approbation of the house, it may at once become the resolution, vote, or order whi(;h it purports to be.^ Ey the ir)th rule of the Senate it is distinctly provided that " no motion prefaced by a preamble is received by the Senate ; and this rule is always strictly observed in that house.'^ A similar rule was adopted by the legislative assembly of Canada f but for some reason it was not continued, when the rules of the House of Commons were considered and adopted in 186*7. One or two instances may be found in the journals where questions are prefaced by a preamble.^ but that form is obviously inconvenient, and not in conformity with the correct usage of either the Canadian or English Parliament. When it is proposed to leave out all the words of the main motion and to substitute others, the amendment should commence, — " That all the words after ' that ' to the end of the cjuestion be left out, in order to insert the follow- ing instead thereof," etc.'' All amendments to insert or add words should commence : Mr. — seconded by Mr. — moves in amendment. That, etc." Several illustrations of amendments will be found at the end of this volume.'^ ^ Gushing, p. 509. ^ Sen. J. [1867-8], 280 ; Deb. [1878], 440. 3 No. 44. * Can. Com. ,T. [1877], 214. * lb. [1867-8], 248 ; lb. [1877], 103-5 ; lb. [1878], 71. « lb. [1867-8], 107 ; lb. [1876], 69 ; lb. [1877], 103, 105. Sen. J. [1878],. 197, &c. 'In the Enghsh houses the practice of putting amendments is quite dif- ferent from tliat of tlie Canadian Parliament. "When it is proposed in the amendment to leave out certain words, the siseaker, after reading both motions to the house, wih put the question : — That the ^vords proposed to be left out stand part of the question. If this question be resolved in the affirmative, then the speaker will put the main motion. If this question be negatived, the speaker will put the main motion as amended. "When. AMENDMENTS. 32t When it is proposed to amend a motion, the question is put to the house in this way : The speaker will first state the original motion, " Mr. A. moves, seconded by Mr. B. — "That, etc." Then he will proceed to give the amend- ment : " To this Mr. C. moves in amendment, seconded by Mr. D. — That, etc." Under Canadian practice the speaker will put the amendment directly in the first place to the house : — " Is it the pleasure of the house to adopt the amendment ?" If the amendment be negatived, the speaker will again propose the main question, and a debate may ensue thereon, or another amendment may then be the proposed amendment is to leave, ont certain -words, in order to insert or atld others, the proceeding commences in the same manner as tlio last. If the house resolve : " That the words proposed to be left out stand part of the question," the original question is put ; but if tliey resolve that such words shall not stand part of the question, by negativing that proposition when put ; the next question proposed is, that the words proposed to be substituted, be inserted or added instead thereof. This latter questi m being resolved in the affirmative, the main question so amended, is put. May, 317-8 (c-hap. 9). In an extremely useful little work, " The Chairman's Handbook," b)' 3Ir. Palgravo, the clerk assistant of the English House of Commons, we find the following clear exposition of the principle which lies at the basis of the Englisli method of procedure : " When two proix)- sitions are submitted for deliberation, first a motion, and then an amend- ment offered as an alternative to that motion, to obtain a fair and straightforward debate, the following conditions must be observed : If two propositions are submitted for discussion, it is, in the first place, essential that their consideration should bo conducted, as far as possible, on equal terms ; and, secondly, it is essential that discussion sliould be limited to the question proi)Osed from the chair. But iiow far are these conditions oI> served, if precedence be given to an amendment over the motion on which it is moved? One of two results must ensue ; if the debate be kept with strict precision to the proposition so put forward, namely, the amend- ment, the supporters of the motion should not be heard, until the amend- ment is disposed of. If, however, argument in favour of the motion be permitted, then debate strays away from the subject immediately in hand. Even under the fairest conditions of debate the popular method withholds from the advocat<>s of a motion their duo position. They were foremost in the field of discussion, but they come last; nay, their proixisition may never bo submitted to any decision at all; for as the amendnient is the first to be considered, it commands tlie chief attention and the i)rimary vote of the debaters. These consequences must arise under a usage whicli places a motion and an amendment in direct antagonism. This conflict 328 MOTIONS IN GENERAL. submitted.' Ou the other hand, if the house adopt the ameudment, then the speaker will again propose the ques- tion in these words : " Is it the pleasure of the house to adopt the main motion (or question) so amended ?" It is then compot<>nt for a member to propose another amend- ment. — "That the main motion (or question), as amended, be further amended, etc." Any number of amendments may- be proposed in this way, as it will be seen by reference to the precedents given below,- But an amendment once negatived by the house, cannot be proposed a second time.^ And it is distinctly laid down in the highest English authority that " when the house have agreed that certain, words shall stand part of a question, it is irregular to pro- pose any amendment to those words, as the decision of the house has already been pronounced in their favour, but this rule would not exclude an addition to the words, if proposed at the proper time. In the same manner, when the house have agreed to add or insert words in a question, their decision may not be disturbed by any amendment of these words ; but here again other words may be added." * is averted by parliamentary practice. The formula used by the speaker — " that the words proposed to be left out stand part of the question " — is framed for that express object ; it offers an alternative choice between both motion and amendment, and withholds them from the vote until the liouse has resolved which subject it will in the first instance consider. ParUa- ment in its procedure obeys that common-sense instinct, which dictates that it is esssential, when two propositions are ofiered for discussion, to know first of all which proposition sliall be discussed. Nor is it till that point is settled, that the house proceeds to bring the matter to a final conclusion." It is noteworthy, however, that this method of putting amendments is peculiar to the English Parliament. What Mr. Palgrave confesses to be " the popular treatment of an amendment " is generally followed by popular assemblies everywhere, by Colonial Legislatures, by the United States' Congress, and by European Parliaments, as far as the writer can gather from the books at hand. 1 Can. Com. J., [1875] 217, 218 ; 76. 1877], 225 ; Can. Hans. [1879], 1376, [debate on main motion]. - Can. Com. J., [1876], 69. " May, 330. * May, 320-1. AMENDMENTS. 329 When au amendment has been proposed, it is competent for any member to move an amendment to the same/ In this case the original question is hiid aside practically for the time being, and the first amendment becomes, as it were, a substantive question." The speaker will then sub- mit the three motions in the order in which they are made, and first take the sense of the house on the last : " Is it the pleasure of the house to adopt the amendment to the amendment ? " If the amendment is rejected, it is regular to move another^ (provided, of course, it is different in pur- port from that already negatived) as soon as the speaker has again proposed the question : " Is it the pleasure of the house to adopt the amendment to the main motion (or original question) ? " If the amendment be resolved in the affirmative, it will not be competent to move that it be struck out, in whole or in part. A precedent on this point was given dur- ing the session of 1871. The house having considered in committee of the whole a bill to amend the acts relating to duties of customs, Sir Francis Hincks moved that the bill be read a third time to-morrow. Mr. Holton moved in amendment that the bill be now re-committed to a committee of the whole house, for the purpose of so amending the same as to repeal the duties on coal, coke, wheat and flour. Mr. Blanchet then moved in amend- ment to the said amendment, that the words, "and also salt, peas and beans, barley, rye, oats, Indian corn, buckwheat, and all other grain, Indian meal, oatmeal and flour, or meal of any other grain," be added at the end thereof. This amendment was resolved in the affirmative, where- npon Mr. Colby moved, in further amendment to Mr. Helton's amendment as Jiraended, to substitute for the same a resolution declaring it "inexpedient during the 1 Can. Com. J., [1878], 50; lb. [1877], lOo, 111 ; Son. J. [187G], 1:32. ■' May, 322. ^Can. Com. J. [1S71], 74. 3;i0 }{<>TI(>.\S I.\ aEXKIlAL present session of Parliament to make any alteratioii in the existing duties on coal, coke, wheat, flour, salt, peas^ beans, h:irl(>,y, rye, oats, iiidian corn, buikwheat." Mr. Holton at once objected to this amendment on the ground that it proposed to strike out certain words which the house had already decided should form part of the ques- tion. Mr. Speaker Cockburn, decided that the point of order was well taken. " It seems conclusively so by English authority," he said, " and there is good reason for it. The house has pronounced its decision upon the pro- position that salt and other articles shall form part of the question to be submitted to the house, and now the house is asked to say that they shall be struck out of the question. This would be a contradiction, and clearly out of order.'" Amendments may, however, be proposed to add words to the main motion, or amendment, as amended.' In the case of a second reading or other stage of bills, and on the motion for going into committee of supply, in the English House of Commons it is laid down authorita- tively : "No addition can be made to the question, after the house has decided that words proposed to be left out shoukl stand part of the question. Every stage of a bill, being founded upon a pre- vious order of the house, is passed by means of a recognized for- mula, and may be postponed or arrested by acknowledged forms of amendment ; but when any such amendment has been nega- tived, no other amendment by way of addition to the question can be proposed, which is not, in some degree, inconsistent with the previous determination of the house; and it has, therefore, never been permitted."' Only two amendments can bo be proposed at the same time to a question. Some limit is necessary, and the usage has grown into law, that an amendment to an amendment ^ Can. Com. J. [1S71], 131-3. A similar decision was given by|Mr^ Speaker Anijlin, [b. [1875], 200. See supra, p. 328. - Ih. [1871], 133 ; lb. [1873], 393. See supra, p. 328. ^ May, 321 ; 183 E. Hans. (3), 1918 ; 186 lb. 1285 ; 240 lb. 1602. liELEVAXCY OF AMENDMENTS. 331 is allowable, but that no motion to amend further can be entertained until one of the two amendments is disposed of. There is no limit, however, to the number of amend- ments to a question provided they come within these and other rules stated above. No decision appears on the Cana- dian journals on this point, but the usage is uniform. When a proposition or question before the house consists of several sections, paragraphs, or resolutions, the order of considering and amending it is to beffin at the commence- ment, and to proceed through it in course by paragraphs ; and when a latter part has been amended, it is not in order to recur back, and make any amendment or alteration of a former part.' This rule is observed especially in the case of bills in committee of the whole, where each section is con- sidered a distinct proposition, to be amended line by line, if necessary ; and consequently if the committee have amend- ed the latter part of the clause, they cannot amend the first part of the same." It is for this reason, the resolution for the address at the beginning of the session is ahvays taken up paragraph by paragi'aph. When the second paragraph has been considered and agreed to, it is not regular accord- ing to the rule in question to go back to the first ; and so on to the end of the resolution.' Canadian speakers have frequently decided that amend- ments must be relevant to a motion or question.' The English parliamentary authorities have up to very recently laid down the rule that a proposition may be amended, in parliamentary phraseology, not only by an alteration which carries out the purpose of the mover, but also by one which entirely destroys that purpose, or which even makes the proposition express a sense the very reverse of that intended 1 2 Hatsell, 123; 102 E. Hans. (3). 117. ^ 46 E. Com. J., 175. See chapter on public hills. » Supra pp. 233-4. ♦Can. Com. J. [1870], 122, 124 ; Ih. [1S72]. KKi, Also, 7th July, 1S.-)S, Leg. Ass. J.; 14tli April, LS")!!, Par). Deb. Colonibt; Sp. I'cc. Nos. 33, 53, 168, 197. 332 MOTIONS IN GENERAL. by the movor ; and, in like manner, a motion which pro- poses one kind of proceeding, may be turned into another of a wholly ditferent kind, by means of an amendment. For instance, where the motion pending was for the house to go into a committee of the whole, on the four per cent, annuities acts, and a motion was made to amend, so as in effect to substitute therefor a motion for certain papers connected with the passing of a decree by the government of Portugal materially affecting the commercial relations of that country with G-reat Britain ; and the amendment was objected to, on the ground, that it had no relation whatever to the subject of the motion, the speaker said, that, according to the forms of the house, and the law of Parliament, there was no necessity that the amendments should be akin to the question.' Sir Erskine May thus stated the usage in his edition of 1879 : " There is no rule which requires an amendmMit to be relevant to the c|ues- tion to which it is proposed to be made, except in the case of an order of the day."' Such a usage as allowing amendments irrelevant to a question, certainly seems op- posed to those principles of sound reason which govern English parliamentary law generally. If such a practice were generally tolerated, all the benefits of giving due notice of a motion, and allowing the house a full opportu- nity of considering a c|uestion, would be practically lost. A member would then be in a position to surprise the house si any moment with a motion of importance, and the necessity of giving notice would be superseded to all intents and purposes. It is not therefore surprising that the latest English decisions are in accord with those of the Canadian speakers. Sir Erskine May, in the edition of 1883, admits that " an amendment should be relevant to the question to which it is proposed to be made, and gives a decision of the speaker as late as the 28th of February, 1882. 123 E. Hans. (3), 785 ; 38 lb. 174, 190. ^ Page 303. DILATORY MOTIONS. 333 A motion having been made to declare Michael Davitt incapable of being elected or returned as a member, it was proposed to amend the same by substituting an address to the Crown for a free pardon ; but the speaker promptly- interposed and pointed out that such an amendment was inadmissible, as it had no relation to the question before the house, but should form the subject of a distinct mo- tion, after notice given in the usual manner.^ The law on the relevancy of amendments seems now to be that if they are on the same subject-matter with the original motion they are admissible, but not when foreign thereto.- The exceptions to this rule are amendments on the cjues- tion of going into supply or ways and means.^ Amend- ments to bills also, like amendments to the orders of the day, " must strictly relate to the bill which the house, by its order, has resolved upon considering.'" VIII. Dilatory Motions.— There is a class of motions, common to all parliamentary assemblies, intended to have the ef- fect of superseding or delaying the consideration of a question. For instance, motions for the adjournment of the house or debate, for reading the orders of the day, and for the previous question, are all in this direction. The term " dilatory," •" is used here as a convenient means of grouping together such motions as postpone a c[uestion for the time being : Motions of Adjournment. — "VYhen any question is under ' May, 325. 266 E. Hans. (3) 1810. ''■ To show wide range of amendments, see decision of ^Ir. Speaker Brand, wlio ruled that it was regular to move an amendment in favour of the Oaths' Act on a question re-affirming a resolution restraining Mr. Bradlaugh from taking the oath ; 207 E. Hans. (3), 18S2. Such an amendment was, however, germane to the question. ^ See chapter on supply. ' 143 E. Hans. (3) 043.' * American writers on parliamentary law use it frequently. It is also found in Rule 16 (8) of the House of Representatives ; Smith's Digestr p. 176. See also Mr. Sp. Brand; 136 E. Com. J. 50. 334 MOTIONS IN GENERA I. the consideration of either house, a motion to adjourn will always be in order. The 30th rule of the Commons provides : " A motion to adjourn shall be always in order, but no second motion to the same effect shall be made until after some inter- mediate proceeding shall have been had.'" A motion of this kind, when made to supersede a ques- tion, should bi^ simply, "that the house do now adjourn" ; and it is not allowable to move the adjournment to a future day, or to propose an amendment to the question of adjournment." If the motion for the adjournment be carried in the affirmative, the house must at once adjourn until the hour of three o'clock p.m., or whatever may be the regular hour of meeting on the next sitting day, and the question under consideration will be superseded,* so that if it was on the orders of the day, it must at once disappear from the order paper where it can only be again placed by a motion formally made in the house for its revival.^ But if the question is not regularly before the house — that is to say, if it has not been proposed to the house by the speaker — it will not even appear in the votes ; but if it has been so proposed, it will be duly re- corded. But in case a notice of motion is under consider- ation, it will not be superseded, inasmuch as rule 27 makes special provision for such cases, and places the motions on the orders for a future day.'^ Consequently if a question, not provided for by rule 27, is under consideration, and it is the wish of the house to ad- journ, it is necessary to move an adjournment of the debate in the first place,*' unless indeed it is desired to supersede it. ^ Can. Com. J. [1880-1], 107 illustrates practice. - 2 Hatsell, 113. In the Lords a future day may be specified, May, 300. '■' For cases in point, 110 E. Com. J., 367 ; 115 lb. 393; 119 lb. 131, 256; 120 lb. 282, 332; 121 lb. 78. Sen. J. [1876], 132, 133, 139 (Pacific R. R. bill). . * Sen. J. [1876], 133, 139 ; Sen. Deb. [1878], 832, 834 (Pacific RR. Act Amendment Bill) ; Can. Com. J. [1870], 237, 287 (Interest Bill). * Supra p. 257 Can. Com- J. [1876], m. "Can. Com. J. [1876], 129. MOTIOX TO PROCEED TO ORDERS. 335 It has been decided in the Canadian Commons that a motion for the adjournment of the debate should be pure and simple — like the motion for the adjournment of the house — and should not contain a recital of reasons.^ If the house should be suddenly adjourned in conse- quence of the absence of a quorum, a question then under the consideration of the house will disappear from the order paper for the time being.'- Motion for Reading Orders of the Da/j. — A motion to proceed to the orders of the day is another mode of evad- ing a question for the time being. The 28th rule orders : " A motion for i-cading* the orders of the da}' t^hall have prefer- ence over an}' motion before the house." ' If a question on the motion x)aper is under considera- tion, any member may move, "That the orders of the day be now read," or " That the house do now proceed to the orders of the day." If this question is resolved in the af- firmative, the original motion is superseded, and the house must proceed at once to the orders of the day.* It has been ruled in the Canadian as well as in the English house that no amendment can be made to the motion for pro- ceeding to the orders of the day,'^ it being considered equi- valent to a motion for the previous question.'' 1 Can. Com. J. [1880-1], 86. Also, Can. Leg. Ass. J., 7th March, 1865. Can. Sp. D., No- 129. n29E. Com. J.,371. ^ When orders of the day are reached in due course it is not necessary to malve a motion, as they are at once talcen up in accordance witli rule 19. See supra p. 251. The motion discussed above is one of a peculiar and special character, made when a notice of motion or other (juestiou not on the orders of the day is under'discussion. * May, 302; 111 E. Com. J., 107 ; Can. Com. J. [1S73], DOO. ^ Can. Com. J. [1873], 300, Mr. Sp. Cockburn. But a case occurred in 1880 Jour., p. 194. The weight of authority appears to rest with the previous precedent, since it is obvious that the motion is in the nature of the pre- vious question. * ]\Iay, 302. A motion for the adjournuient of tlie house, bowever, will always be in order ; infra p. 338. 336 MOTIONS IN GENERAL. If the house is considering an order of ihv day, a motion to proceed to the next order of the day will have the same effect as the motion we have just mentioned.' It is equally in order to move to proceed to the government orders, while a question among " public bills and orders " is under consideration.^ Previous Question. — Another method of evading or super- seding a question in both houses is the moving of what is known as " the previous question." The Senate rule on the subject is as follows : " 24. When a question is under debate, no motion is received unless to amend it ; to commit it ; to postpone it to a certain day ; for the previous question ; for reading the orders of the day ; oi- for the adjournment of the Senate." '' The 3oth rule of the Commons provides : " The previous question, until it is decided, shall preclude all amendment of the main question, and shall be in the following words, ' That this question be now put,' If the previous ques- tion be resolved in the affirmative, the original question is to be put forthwith, without any amendment or debate." The rule just quoted permits neither amendment nor debate in case the house decide in the affirmative, for the speaker will immediately put the question.^ But if the previous question be resolved in the negative, then the speaker cannot put any question on the main motion, which is consequently superseded,' " though it may be 1 93 E. Com. J., 418 ; 107 lb., 205. Can. Com. J. [1870], 312. Can. Sp, D., No. 120. Leg. Ass. J. [1864], 194. ' Can. Com. J. [1880-1], 81 ; Can. Hans., 13th January, 1880-1 ; 109 E. Com. J., 342. ^ 237 E. Hans. (3), 527 ; 238 lb., 296 ; Lords' J., 1878, January 28. The previous question is said to have been introduced in England for the pur- pose of suppressing subjects of a delicate character, relating to high per- sonages, or which might call forth observations of a dangerous tendency. Cashing, p. 549. * 2 Hatsell, 122, r?. Can. Com. J. [1879], 84-5. ' ^ Can. Com. J. [1869], 163-4. Also, lb. [1870], 254 ; 71 Lords' J. 581 ; 113 E. Com. J. 100. PREVIOUS QUESTION. 337 revived on a future day, as the negation of the previous question merely binds the speaker not to put the main question at that time."" In the English Parliament, the previous question ap- pears to be only proposed with the object of preventing a decision upon a question ; and consequently the members who propose and second it generally vote against their own motion.- In the old Canadian Legislature and in the do- minion Parliament, however, the motion has invariably been used to effect a double object, viz : 1. To prevent, as in England, a decision on the question under consideration ; in which case the members who pro- pose and second it vote against the motion. ' 2. To prevent simply any amendment and force a direct vote on the cjuestion ; in which case the members who pi'opose and second it vote for the motion/ ' May, 303. In the congress of the United States a more logical form of putting the previous question, viz. : " That the question be not now put" Avas adopted in 1778 (Gushing, 555), but the form is now fixed as it prevails in Parliament, though the effect is difibrent — being used to sup- press immediately all further discussion of the main question, and to come to a vote upon it immediately {lb. 554 ; also. Smith's Digest, 322). It has been suggested that the English houses might advantageously return to the old^jractice of 250 years ago, and adopt the more logical form as above (E. Com. J., :*Iay 25th, 1605 ; Jan. 22nd, 1028). This form shows clearly the object of the motion ; those who move it vote "aye," and those who oppose it vote " no." R. T. Palgrave, Chairman's Handbook, p. 76. -' May, 303-4. Tlio member who proposes the motion is generally appointed one of the tellers for the " noes," March 25th, 1858 ; 149 E. Hans. (3), 722, .lournals, p. 100 (Mr. Miller). ' Leg. Ass. J. [1864], 101 ; Can. Com. J. [1869], 103-4. ' In 1865 Atty.-Gen. (now Sir J. A.) Macdonald moved, and Atfy.-Gen. Cartier seconded, a motion for an address in relation to the union of the provinces. Subsequently they proposed the previous question, and the speaker decided, when a jjoint of order was raised, that that question was not an amendment in the real sense of the term, and that consequently tlio movers of the original proposition could regularly make such a motion. In this case both gentlemen voted for the previous question- Ass. J. [1865], 180, 191, 192. Also, Ih. [1856], 142. In 1870 Mr. Holton (mover of previous question), voted for it. Jour., p. 254 ; in a previous se-ssion, when the object was to prevent tlie putting of the question, he 2 338 MOTIONS IN HENKIIAL. Amendments to Previous Question or to Motion f(rr Proceed- ing to Ordrra of the Datj. — No amendment may be proposed to the m.otion for the previous question." Neither can it be proposed when there is an amendment under considera- tion." If the previous qu.estion has actually been proposed it must be withdrawn before any amendment can be sub- mitted to the house.' If an amendment has been first proposed, it must be disposed of before a member can move the previous question.' The motion, " That the house do now adjourn," can be made to the motions for the previou.s question and for reading the orders of the day. But such a motion cannot be made if the house resolves that the question shall now be put under rule 35.' It is also perfectly in order to move the adjournment of the debate on the previous question.'' When a motion has been made for reading the orders of the day, in order to supersede a question, the house will not afterwards entertain a motion for the previous ques- tion, as the former motion was in itself in the nature of a previous question.'^ It is allowable to m.ove the previous question on the different stages of bills."* voted in the negative, Jour. [1869], 163-4. In 1879 Mr. Ouimet, who moved the previous question, voted in the afhrmative, hie object being simply to prevent amendment, and Mr. Speaker Blanchet decided he was in order on tlie principle stated above; Can. Hans. [1879], 408. From the foregoing precedents it will be seen there has been a uniformity of practice under the rule which has come to theCommons from the old Canadian Legis- lature. It may be added that no rule or decision can be found in the Englisli authorities preventing a member voting as he pleases on such a question. ^ May, 304. Commons rule, supra, p. 336. - 2 Hatsell, 116 ; 212 E. Hans. (3), 926. 3 149 E. Hans., 712. ' 117 E. Com. J., 129 ; 118 lb., 269. 174 E. Hans. (3), 1376. Can. Com. J. [1870], 254. s 250 E. Hans. (3), 1157-8. ^ Can. Hans. [1879], 407. But not if the liouse decide that the question be put ; 250 E. Hans. (3), 1158. ^ May, 305. s 99 E. Com. J., 504 ; 113/6., 220 ; 119 lb., 160, 234 ; 135 IL, 261 ; 137 lb., 378, 114 Lords' J., 173. REVIVAL OF A QUESTION IN SAME SESSION. 339 IX. Renewal of a Question during a Session.— "\Vh(^n a motion has been stated by the speaker to the honse, and proposed as a question for its determination, it is then in the pos- session of the house, to be decided or otherwise disposed of according to the established forms of proceeding. It may then be resolved in the affirmative or passed in the negative ; or superseded by an amendment, or withdrawn with the unanimous consent of the house. It is, however, an ancient rule of Parliament that " no question or motion can regularly be ottered if it is substantially the same with one on which the judgment of the house has already been expressed during the current session." ' The old rule of Parliament reads : " That a question being once made, and carried in the affirmative or negative, cannot be ques- tioned again, but must stand as a judgment of the house. "- Unless such a rule were in existence, the time of the house would be constantly frittered away in the discussion of motions of the same nature, and the most contradictory decisions would be sometimes arrived at in the course of the same session. Consequently, if a cjuestion or bill is rejected in the Senate or Commons it cannot be regularly revived in the same house during the current session. Circumstances, however, may arise to render it necessary that the house should reconsider its previous judgment on a question, and in that case there are means afforded by the practice of Parliament of again considering the matter. Orders of the house are frequently discharged" and re- solutions rescinded.' The latter part of the 13th rule of the House of Commons provides: "No member may reflect upon any vote of the house, except for the pur- pose of moving that such vote be rescinded." In such a case, the motion will first be made to read the entry in ' May, 328 ; 1 E. Com. J., 30(5, 434. '' Res. April 2, 1()04, E. Com. J. ^ Can. Com. J. [1877], 20. ' lb. [1SG8], 184 ; Log. Ass. J. [18.3G]. 722; 253 E. Hans. (3) G43. 340 MOTIONS L\ OJ'JXJ'JlLiL. the journals of the resolution ; and when that has been done by the clerk, the next motion will be that the said resolution be rescinded,' or another resolution expressing a diflferent opinion may bo agreed to.- But when a question has once been negatived, it is not allowable to propose it again, even if the form and words of the motion are dif- ferent from those of the previous motion;^ Sir Erskine May says on this point, which is one involved in much diificulty : "The only means by which a negative vote can be revoked is by proposing another question, similar in its general purport to that which had been rejected, but with sulhcient variance to constitute a new question ; and the house would determine whether it were sub- stantially the same question or not." The English jour- nals are full of examples of the successful evasion of the rule which the house permitted.^ In all such cases, the character of the motion has been changed sufficiently to enable the member interested to bring it before the house. All such motions, however, must be very carefully con- sidered, in order to guard against a palpable violation of a wise and wholesome rule. If a motion has been negatived, it cannot be afterwards proposed in the shape of an amendment.^ In case a motion has been withdrawn, it may be again proposed as the house has not previousl}^ determined the question, and it is only in the latter event that the same question may not be revived.*^^ If an amendment has been nega- tived, a similar amendment cannot be proposed on a 1 May, 328; Can. Com. J. [1867-8], 184. - 132 E. Com. J. 345, 367 ; 235 E. Hans, 1690 ; Controller of H. 31. Stationery Office. ■' 95 E. Com. J., 495 ; 115 lb. 249 ; 245 E. Hans (3) 1502. * The most memorable instances of numerous motions on a cognate question occurred in the session of 1S45, in reference to the opening of letters at the post-office, under warrants from the secretary of state ; 100 E. Com. J. 42, 54, 185, 199, 214. = 76 E. Hans. (3) 1021. « 80 E. Hans. (3) 432, 798. REVIVAL OF A QUESTIOX JX SAME SESSIOX. 341 future day/ It has been decided, lio\Yever. iu the Canadian Commons that an amendment is in order when it comprises only a part and not the whole of a resolution previously voted on by the house." As it is in reference to bills, and the proceedings upon and in relation to them, that this rule receives its most important apjolication, it is proposed to deal with it at length in the chapter devoted exclusively to public bills. ' 214 E. Hans. (3) 2S7. For other illustrations of the rule, see May, chap. 10. ^ Can. Sp. Dec, 18(5; Can. Com. J. [1S71] 145, 14G. Also, Mr. Speaker Kirkpatrick, March 12, 1883. CHAPTER XII. RULES OF DEBATE. I. Deportment of members on tlie floor. — II. Precedence in debate. — III. Written speeches not permissible. — IV. Extracts from papers. — V. References to the Queen or Governor-General. — VI. Relevancy of speeches. — VII. Their length. — VIII. Motions for adjournment. — IX. Rules limiting debate. — X. Personal explanations. — XI. Calling in question a member's words. — XII. Interruption of members. — XIII. Speaking ^^•hen orders are called. — XIV. ]\Ianner of addressing another member. — XV. References to the other house. — XVI. Or to previous debates. — XVII. Rules for the preservation of order. — XVIII. Naming a member. — XIX. Words taken down. — XX. Misbehaviour in com- mittees or lobbies. — XXI. Prevention of hostile meetings.— XXII. Punishment of misconduct. — XXIII. Withdrawal of a member when his conduct is under discussion. — XXIV. References to judges and. other persons not members. — XXV. Xew standing orders of English Commons on the following subjects : Putting the question ; Motions of adjournment; Suspension for obstruction of public business. I. Deportment of Members in Speaking.— When a motion has been duly moved, seconded and proposed as a question by the speaker, it may be fully discussed in accordance with the rules and usages of the house. The rules of order governing debate, chiefl}^ relate to the time when, and the circumstances under which, a member may speak, or to what may, or may not, be said by a member having- the right to address the house. These rules will be ex- plained in the course of this chapter, but it is necessarv and convenient to refer, in the first place, to the personal deportment of a member while on the floor. Senators and members of the Commons may sit in their places, in their respective houses, with their heads covered. DEPORTMENT OF MEMBERS. 343 but when they desire to speak they must remove their hats.' Exception, however, will be made in cases of sickness, or bodily infirmity, when the indulgence of a seat is frequently i^ermitted, at the suggestion of a member and with the general acquiescence of the house.' A mem- ber suffering from indisposition will also be permitted to hand his motion to another member to read."' In the Commons, a member must address himself to Mr. Speaker.' In the Senate the members must address them- selves " to the rest of the senators, and not refer to any other senator by name."'' In the Commons, if a member addresses the house and not the chair, he will be called to order immediately." Senators and members, when they enter or leave the house, or cross the floor, must make obeisance to the chair.' The rule of the Senate provides : 9. "Senators may not pass between the chair and the table. When entering or crossing the Senate chamber they l)ow to the chair ; and if they have occasion to speak together, Avhen the Senate is sitting, they go below the bar, or else the speaker stops the business under discussion." Rule 17 of the House of Commons also provides for decorum in the following terms : " When the speaker is putting a question, no monibcr shall walk out of, or across the house, or make any noise or disturli- ' Sen. R. 20 ; Com. R. 10. •^ 2 Hatsell, 107 ; Romilly, 2G9, 270. When Mr. Pitt made his celebrated speech in 1793 against the peace lie was i^ermitted to speak sitting. Also, cases of Lord Wynford, CI Lords' J. 1G7 ; Mr. Wynn, 9th Mardi, 1843 ; G7 E. Hans. (3) (ioS. It is usual to uuivc that leave be accorded tlio afllicted member. ■' On tlie. l:')th ^Nlarch, 1878, ^Ir. Schultz was suffering from a broncliial affection and a member sitting alongside read two (luestious for him. On a previous day Mr. 3Iasson liad read two letters for tiie same gentleuiau. * Com. R. 10. ^ Sen. R. 20. Same as the Lords' S. O. No. 14. «223 E. Hans. (3), 1002, 1458. ' 8 E. Com. J. 2G4. 344 Ji I 'L i:s OF DEIL 1 77;. ancc; and when u member i.s speiikiug, no member shall inter- v\x\)i him, except to order, nor pass between him and the chair ; and no member may i)as.s between the chaii' and the table, noi- between the chair and (he mace, Avhen the mace has been taken off the table by the serjeant." It is very irref^ular for members to leave their seats abruptly when the speaker is retiring- from the house at six o'clock, or at the hour of adjouriiraeut. The two houses have the same rules on the subject : ''When the house adjourns, the members shall keep their seatri initil the speaker has left the chair.'" Whenever a message is received from the governor-gen- eral, " signed by his own hand," the speaker will read it to the House of Commons, " while the members stand un- covered."" But when the clerk proceeds to read papers transmitted with the message, the members may resume their seats. II. Precedence in Debate.— The speaker of the Commons will always give precedence in debate to that member who first catches his eye. Rule 11 provides also for cases where several members rise at the same time : " When two or more members rise to speak, Mr. Speaker calls upon the member who iirst rose in his place ; but a motion may be made that an}" member who has risen ' be now heard,' or ' do now speak.' " •' It is usual, however, to allow priority to members of the administration, who wish to speak ; and in all import- ant debates it is customary for the speaker to endeavour to give the preference, alternately, to the known supjDort- ^ Se.n. E. 8 ; Com. R. 3. ■-' 2 Hatsell, 365 ; 12!) E. Com. .T. 83, 316 ; mpro, p. 301. ^ See May (pp. 3-44-5), who gives an example av here two membei-s rose at the same time and a motion being made that one be now heard, the other took immediate advantage of it and spoke to tlie question. I. ^Memorials of Fox, 295. WRITTEN SPEECHES. 345 ers and opponeuts of a measure or question ; and it is irregular to interfere with the speaker's call in favour of any other member. But in disputed cases an appeal may be made to the house in accordance with the rule just cited.^ There is no rule in the Senate like that of the Commons, If two members rise at the same time in the House of Lords, it is proper for the chancellor to point out who, in his opinion, first rose ; but the chancellor or chairman of committees has no absolute right to determine the cj^ues- tion ; and in all cases of variance of opinion the decision must rest with the house,-' which may forthwith proceed to vote who shall be heard.^ The lord chancellor is given, by courtesy, precedence over other peers, should he rise to speak at the same time with other members.' III. Written Speeches not Permissible— It is a rule in both houses of Parliament that a member must address the house orally, and not read from a written, previously pre- pared speech; for the reason, as stated by Mr. Fox in 1800, that "if the practice of reading written speeches should prevail, members might read speeches that were written by other people, and the time of the house be taken up in considering the arguments of persons who were not de- serving of their attention."' It is the invariable practice to discountenance all such written speeches, and it is the duty of the speaker to interfere when his attention is directed to the fact.'' Members may, however, make use of notes in delivering a speech.' 1 1 Todd, 324 ; 67 E. Hans. (3), 898 ; 7726. 866 ; 153 lb. 839. The debate of 12tli March, 1878, on tho tariff (seo Canadian Hansard of that date), illustrates how members on different sides fallow each other alternately ; the convenience is obvious. •^ 18 E. Hans. (1), 719, n. ; 4tli .bin., isil. - 34 Lords' J. 306 ; May, 343. * 21 E. Hans. (N. S.), 187-8 ; :\Iay, 343. ^ Pari Deb. 1806, vol. 7, pp. 207-8. '"' 223 E. Hans. (3) 178. ' Pari. Deb., 1806, p. 208. 346 R ULES OF DEI} A TE. IV. Extracts from Papers.— It is now in order for a member to make extracts from newspapers or other publications as part of his speech,' provided in doing so he does not in- I'ringe on any point of ord(!r. But there are certain limi- tations to this right ; for it is not allowable to read any petition referring to debates in the house.- Neither is it regular for a member to read a paper which he is asking the house to order to be produced.' Nor is it in order to read articles in newspapers, letters or other communica- tions, whether printed or written, emanating from persons out of the house, and referring to, or commenting on, or denying anything said by a member or expressing" any opinion as to proceedings within the house.' During a debate on the tariff in the session of 187Y, Mr. Mills re- ferred to the opinions of Sir Alexander Gait, formerly a member and minister of finance. Subsequently one of the Canadian papers published a letter from Sir Alexander, in answer to some of Mr. Mills's remarks ; and the latter rose and proposed reading from the paper in question ; but the speaker interrupted him and questioned the pro- priety of this course — a decision entirely in accordance with the English rules of debate.' It is quite in order, however, for a member to quote from a printed paper, on which he prox^oses to found a motion.'' 1 But it was not in order to do so up to 1840. 4 E. Hans. N. S., 922-3. Ikit gradually the practice became as it now is, 13 E. Hans. (3) 884 [1S32] ; ]\Iirror of P., 1840, vol. 16, p. 1634 ; Ih. 1841, vol. 17, p. 22.5(5. The practice is often carried to excess in the Canadian houses. - Mirror of P., 1840, vol. 20, p. 4820. ■'• 12 E. Hans. (1) 1043; 10 Ih. (1) 700. * 61 E. Hans. (3) 141, 661, 662 ; 64 //-. 26 : 2:50 U,. 1339 ; 241 Ih. 831 ; 245 Ih. 1673. ^ 183 E. Hans. (3) 826. When a member proposed to read a letter in the " Times " from General Haj', ^Ir. Speaker Denison interposed and said that " the hon. member had exercised a wise discretion in not doing so." The house, however, is generally very indulgent in allowing this rule to be susjx^nded, in special ca.ses when the conduct of a member is in question, or when it requires more information on a matter of contro- versy. Chief Justice Young's letter, Can. Hans. 12th Feb, 1878. *■• 240 E. Han?. (3), 1069. REFERENCES TO SOVEREIGN, ETC. 347 It has been laid down by the highest authorities that " when a minister of the Crown quotes a public document in the house, and founds upon it an arg'ument or assertion, that document, if called for, ought to be produced."' ^ But it is allowable to repeat to the house information which is contained in a private communication." When such private papers are quoted in the house, there is no rule requiring them to be laid on the table.' The rule respect- ing the production of public papers, quoted by a minister of the Crown, is necessary to give the house the same in- formation he possesses, and enable it to come to a correct conclusion on a question. It does not appear that the English Commons have ever applied this rule to the case of private members, citing public documents not in the possession of the house.' V. References to the Queen or Governor-General.— It is expressly forbidden to speak disrespectfully of her Majesty or her re- presentative in this country, or of any member of the royal family.^ Neither is it permitted to introduce the name of the sovereign or her representative in debate, so as to in- terfere with the freedom of discussion, or for the purpose of influencing the determination of the house, or the votes of members with respect to any matter pending in Parlia- ' Lord Palmcr.ston, KIG E. Hans. (3), 212!i; :Mr. Canning's case. 63 E. Com. J., 4th March, 1808; 176 E. Hans. (3), 962 ; 156 Ih., 1587; 235 Ih., 935. But lie may refuse in ca.se he believes that the public interest* would be jeopardized, 243 E. Hans. (3), 940-41. - Lord Palmerston, 146 E. Hans. (3), 1759 ; 156 Ih., 1587. •' 179 lb., 490 ; Can. Hans., 9th March, 1877 (Mr. Vail's letter.) * It does not appear that the English authorities support a decision of the speaker in 1880 (Can. Com. J., p. 200) to the effect that a private member who quoted from jiublic documents ouglit to lay them on the table. See ^lay, 379. Also, the debate in the case of Sir C. Napier (137 E. Hans. (3), 261), during which a i)rivate member read long extracts from public jjapcrs, in possession of the government, but not before the house. The propriety of his course was questioned, luit it was not claimed he should lay them on tlie table. ^Com. K.,13. 34^ nrij'js or diiiiat]:. merit.' Cases, however, may arise where; it is permissible to introduce the name of the sovereign or of the governor- general in debate. A member of the government may? with the authority of the sovereign or governor-general, make a statement of facts, provided it is not intended to influence the judgment or decision of the house." A case in point occurred in 18Y6 when Mr. Disraeli was permit- ted to give an emphatic denial, on the part of her Majesty, to some remarks made by Mr. Lowe as to certain alleged unconstitutional influences brought to bear upon minis- ters and members in favour of the Royal Titles Bill. On that occasion Mr. Speaker Brand said : " If the statement of the right hon. gentleman relates to mat- ters of fact, and is not made to influence the judgment of the house, I am not prepared to say that, with the indulgence of the house, he may not intj-oduce her Majesty's name into that state- ment." Mr. Disraeli then proceeded to state, on the part of her Majesty, ''that there Avas not the slightest foundation for the state- ment made by Mr. Lowe."' It is not unusual in the Canadian house for the leader of the government to make statements with reference to the relations between the cabinet and his Excellency, the Grovernor-Greneral, or in answer to false reports in the pub- lic press. In the session of 18*79 Sir John Macdonald, then premier, read a statement from the Marquis of Lome 1 Mr. Speaker Lefevre, 69 E. Hans. (3), 24, 574; 228 Ih., 133-6 ; 235 Ih., 1596. In 1783, Dec. 17, the House of Commons resolved that it was "a high crime and misdemeanour, derogatory to the honour of the Crowiii a hreach of the fundamental privileges of parliament, and subversive of the constitution of the countr}', to report any opinion or pretended ■opinion of his Majesty upon any bill or other proceeding." Also, see the remonstrance of the Lords and Commons to Charles I. on the 16th De- •cember, 1641. '' Sir Kobert Peel, 9th May, 1843. 69 E. Hans. (3), 24, 574. * 228 E. Hans. (3), 2037. In a subsequent speech a member was allowed to quote from a diary published with the sanction of her ^Majesty, when the passage cited did not atiect any measure before the house ; 244 //'., 492-3. IlELEVAXCY OF SPEECHES. -349 giving him authority to deny certain inaccurate state- ments that had appeared in the Toronto " Globe" with respect to the reference to England of the question of the dismissal of Lieutenant-Governor Letellier de St. Just.' When despatches are brought down from her Majesty or the governor-general, it is of course perfectly legitimate to discuss the subject-matter," but it is irregular to say that they have been brought down for a puri:)Ose.' VI. Relevancy of Speeches.— A j'ust regard to the privileges and dignity of Parliament demands that its time should not be wasted in idle and fruitless discussions ; and con- sequently every member, who addresses the house, should endeavour to confine himself as closely as possible to the question under consideration. If the speaker or the house believes that his remarks are not relevant to the question, he will be promptly called to order by the former.' It is not, however, always possible to judge as to the relevancy of a member's remarks, until he has made some progress with his argument. The freedom of debate requires that every member should have full liberty to state, for the information of the house, whatever he honestly thinks may aid it in forming a judgment upon any question under its consideration/' It is, therefore, always a delicate matter for the speaker to interfere unless he is positive that the member's remarks are not relevant to the subject before the house. On such occasions he may very pro- perly suppose " that the member will bring his observa- tions to bear upon the motion before the house ;*' " or " that he will conclude with somethins; that will bring ' Can. Hans. [1879], 1100. -' Can. Hans., 1st March, 1S77 (appointment of senators). •■' Mr. Speaker Cockburn, .3rd November, second session, 1873, Com. Jour.'" * 227 E. Hans. (3), 783, 896 ; 229 IL, 1751 ; 230 lb., 1099 ; 231?/^., 1222 ; 238 lb., 214, 1976 ; 242 Ik, 1696, 1700, &c. * Cnshing, p. 635. « 18 E. Hans. (3), 89; :Mr. Speaker Sutlon. 350 RULES OF DKl'.ATE. him within order.'" But the moment there is no doubt as to the irrelevancy of a member's observations, the speaker will call his attention to the fact.'^ And he may hnd it necessary to caution a member that "he is ap- proaching the limits of propriety which confine hon. members in speaking to that which is relevant to the subject on hand," and to express the hope " that he will be careful to confine himself to that which is relevant."'' In the English Commons the authority of the speaker, in cases where members persist in making irrelevant remarks on a question, has very recently been enlarged. A member who repeatedly wanders from his subject is at once reminded by the chair that he must keep to the question, and if he continues in his irregular course he is "named" as disregarding the authority of the speaker.* VII. Length of Speeches.— Members are not limited to time when they address the house. Attempts have been made in vain in the English Commons to pass resolutions con- fining speeches to a certain fixed limit of time. For instance, in the session of 1849, whilst the standing orders were under consideration, Mr. Milner Gibson j)roposed that members should be confined to speeches of an hour's duration, excepting only the introducers of original . motions, and ministers of the Crown ; but the house negatived the proposed amendment by a large majority.'^ Similar motions have sometimes passed in the old Parlia- ment of Canada ; but a short experience proved that it was not practicable, nor conducive to the public interests (which are necessarily involved in free discussion) to limit the time.*' 1 Mr. Speaker Abbott ; Gushing, p. 637. •^ 242 E. Hans., 1696 ; Mr. Speaker Brand. ^ 222 Ih., 1199. * 264 E. Hans. (3), 374, '385, 388, 389, 393, 396; See S. O., 27tli Nov., 1882. * 102 E. Hans. (3), 258. * Leg. Ass. J. [1851], 163, half an hour; [1854-5], 162; thre^quarters of an hour. In the House of Representatives at Washington there are rules limiting the time of speaking. "Wilson's Digest of Pari. Law, 404. ilOTIOyS FOR ADJOURX}[EM. 351 But wliile uo limit has been placed to the length of a member's speech in the English Commons, a debate may now be closed when the speaker or the chairman of the committee of the whole is of opinion that a subject has been adequately discussed, and the house resolves that the question should be put forthwith. The cldture has not yet been adopted in the Canadian Parliament/ VIII. Motions for Adjournment— The rule requiring that speeches should be relevant to the question under con- sideration has never been applied in the Canadian houses — nor until recently in the English Parliament — to motions for the adjournment of the house" or of the debate.' New rules have been very recently adopted in the English Commons to confine debate to the motion for adjournment, when it is made during the discussion of any matter.^ But so far the Canadian house has not shown any disposition to waive what may be a valuable privilege on certain occasions, when much latitude of debate is necessary. A motion for the adjournment of the house may be made while a matter is under discussion, or in the interval of proceedings. In the first case such a motion is in the nature of an amendment, and in the other it is a substantive motion, to which a reply is permitted to the member who makes it.'^ Motions for the adjournment of the house or the debate are generally made in the Canadian houses in the course of a discussion, in order to give an opportunity to members who have already spoken to speak again'' or to make ^ See infra^ p. 380 for the English S.O. on this subject. 2 May, 350 ; 99 E. Hans. (3), 119G ; 161 Ih., 344. •' 85 Ih., 1405 ; 182 Ih., 2172-5. * See new S.O. on this subject at the end of this chapter. '" Rule 15 of Com., infra p. 354 ; rule 22 of Sen., mfra p. 353 ; 186 E. Hans. (3), 1505. •^ See Can. Hans., March 8. 1877 (Graving Dock at Levis); Ih., March 13,1878. Also, 261 E. Hans. (3), 999. 352 RULES OF DEIlATi:. certain oxplaiiations which, otliorwiso, they miq-ht not be- able to make.' Substantive motions lor the adjournment of the house ought to be reserved lor occasions \vh(!n it is necessary to discuss questions of gravity." They are not unfrequeutly proposed in the Canadian Commons with the view of bringing before it some question in which a member is immediately interested, and which he believes should be explained by himself with as little delay as possible. Consequently we find they have been sometimes made for the purpose of giving a positive denial to certain charges made against members.'' In 1878, a member brous'ht to the notice of the house, on such a motion, that certain dom- inion oilicials were taking part in the provincial elections of Quebec.^ But even this practice, which is liable to abuse, has it.s limitations. No member will be permitted, on such a motion, to discuss an order of the day,'' or a notice of motion on the paper,'' or a motion which was dropped owing to a count-out." On the 19th of July, 1875, Mr. Whalley was proceeding to discuss a resolution of which he had given notice, but for which he could not find a seconder ; Mr. Speaker Brand called him to order on the ground that he was attempting under cover of a motion of adjournment to discuss a matter which was not regu- larly before the house."^ It has also been decided that a motion of adjournment is out of order on a motion that ' Can. Hans. [1883], 949. '' 188 E. Hans. (3) 1523-6. =* Can. Hane. [1878] 2057. * lb. [1878] 2227. » 140 E. Hans. 2037 ; 225 Ih. 1824 ; 231 Ih. 424, 420. Xot even if tlie motion deals with a kindred subject, 260 Ih. 1985, 2008, 2011 ; Blackmore (1883) 23.. 6 185 Ih. (3) 886 ; 187 Ih. 77o. Can. Hans. 10th April, 1876 ; 269 E. Hans. (3) 1246 (Lords). ' 224 lb. 593 ; Blackmore [1882] 76. '- 225 E. Hans. (3) 1664; Can. Hans. [1880] 1916. R ULES LI Ml TIXG DEB. 1 TE. 3 5 3 the house go into committee on a bill on a future dav.' "When there is a question before the house, and a member moves the adjournment, he must confine himself to the question.^ Nor, on a motion for the adjournment of the debate, can a member refer to a vote just previously given, nor review what has taken place in the house ; ' nor debate the subject-matter of a bill.' It has also been ruled that a member moving the adjournment of the house for the purpose of asking if another member had a certain con- versation with the speaker was committing a gross abuse of the privileges of the motion.' IX. Rules hmiting Debate.— Both houses have imposed upon themselves very strict rules with the view of pre- venting members from occupying unnecessarily their time on any question under consideration. The following are the rules of the Senate, regulating the limits of debate : 21. " A senator may speak to any question before the Senate, or upon a question or an amendment to be proposed by himself; or upon a question of order arising out of the debate; but not otherwise, without leave of the Senate, which shall be determined without debate. 22. " Xo senator may speak twice to a question before the Senate except in exphmation or reply, when he has made a sub- stantive motion. 23. '"Any senator may re(iuii-c the question under discussion to be read at any time during the debate, but not so as to inter- nipt any senator whilst speaking. 24. "When a question is under debate no motion is received unless to amend it, to commit it, to postpone it to a certain day, for the previous question, for reading the orders of the day, or for the adjournment of the house. ' 221 E. Hans. (3) 744. ■' 232 Ih. 1733, 1734. •' 257 Ih. 1351-2. * 259 lb. 179-80, 530. ^ 2G3 lb. 50-51 ; Blackmoro [1883] 22. OQ 354 RULES OF DEBATE. 25. " Any soniitor culled to order kHuU tsit down and .shall not proceed wilhout leave; of the Senate." The forei>'oiiig rules are substantially the same as those of the House of Commons, to whose practice we shall now proceed to refer. It is ordered by the rules of that house : 15. " No member may speak twice to a quewtion, except in explanation of a material part of his speech, in Avliich he may have been misconceived, but then he is not allowed to introduce new matter. A reply is allowed to a member Avho has made a substantive motion to the house, but not to any mcmljer who has moved an order of the day, an amendment, the " previous ques- tion," ^ or an instruction to a committee." - It is the practice in the Canadian house for the member who makes a motion to qyvq the name of his seconder, who may, if necessary, lift his hat as evidence that he has intimated his consent, and under such circumstances he is allowed to speak at a subsequent stage of the debate on the question.^ But if a member who moves an order of the day or seconds a motion, should rise and say only a word or two, — that he moves the order or seconds the motion — he is precluded from again addressing the house according to a strict interpretation of the rules.' In moving an amendment, a member is obliged to rise, and though he may only propose his amendment, he is considered to have exhausted his right to speak on the question before the house.'' On the same j)rinciple when a member rises and simply reads a substantive motion to the house, he is considered to have spoken to the question, but he may claim the right of reply at a later stage.*^ ' May, 360. - Nor, under English decisions, to the mover of a motion for referring a bill to a committee Sj^ecially constituted and enlarging its terms of refer- ence; May, 360. 3 This is the English practice ; May, 361 ; 210 E. Hans. (3) 304. * 194 E. Hans. (3) 1470. But it is unusual to enforce the rule so strictly as in the case cited. Also, 4 Hans. N. S., 1013. i 118 E. Hans. (3) 1147, 1163. Mr. B. Osborne's am. ; May, 361. * Can. Hans. 14th April, 1877 ; secret service (Mr. Young). SPEAKING TWICE OX A QUESTIOX. 355 A member who has already spoken to a question has no right to rise again and propose an amendment or the ad- journment of the house, or of the debate, though he may speak again to those new questions, when they are moved by other members/ For the same reason a member who has moved the adjournment of the debate which has been negatived cannot speak to the original question.- A member who has moved or seconded the adjournment of a debate cannot afterwards rise to move the adjournment of the house.'^ And " as a member who moves an amend- ment cannot speak again, so a member who speaks in seconding an amendment, is equally unable to speak again upon the original question, after the amendment has been withdrawn, or otherwise disposed of. In both cases the members have already spoken while the question was before the house, and before the amendment had been proposed from the chair."* It is usual for a member who wishes to have the floor on a future day to move the adjournment of the debate, and to give him the priority when it is resumed. The house also frequently agrees to adjourn the debate in order to allow an opportunity to a member to continue his speech on a future occasion.'^ But a member must rise in his place when the house resumes the debate, otherwise he will forfeit his privilege." If a member should move the adjournment of the debate, and the house should ' May, 362 ; 222 E. Hans. (3), 1120 ; 237 lb. 408. 1532. Mr. Holtou, 25th Feb., 1878 (gov.-gen.'s expenses). ■' 227 E. Hans. (3), 1098 ; 2o4 Ih. 1793 ; 257 lb. 1351-2. 3 May, 362 ; 202 E. Hans. (3), 448-450 ; 240 lb. 123. * May, 361 ; 241 E. Hans. 1311. It appears, however, from a later deci- sion that if a member moves an amendment, and does not speak, he will be allowed to address himself to the main question by withdrawing the amendment ; 217 E. Hans. (3), 1405. * See Can. Hans. 7th April, 1877(Mr. Costigan),and lb. pp. 1266-7. Also, 13 E. Hans. (1), 114 ; 194 lb. (3), 1470 ; 196 lb. 1305. " 126 E. Hans. (3), 1246. This rule has been always observed in the Canadian house. 356 R J'L ES F DKIL 1 TE. negativo that motiou, he will have exhausted his right of sixniking on the main question' When a debate is ad- journed unlil a ruturc day, a incmber who has previously spoken on the subject will havt> no right to speak again, unless a new question has been proposed in the shape of an amendment." X. Personal Explanations —But there are certain cases where the house will permit a member who has already spoken to a question to make some further remarks by the way of explanation before the debate finally closes. For in- stance, when a member conceives himself to have been misunderstood in some material part of his speech, he is invariably allowed, through the indulgence of the house, to explain with respect to the part so misunderstood,'' and this privilege of explanation is permitted without leave being actually asked from the house.' But such explana- tions must be confined to a statement of the words actu- ally used, when a member's language is misquoted or misconceived, or to a statement of the meaning of his lan- guage, when it has been misunderstood by the house ;^ for the speaker will call him to order the moment he goes beyond that explanation, and replies to the remarks of members in the debate f or attempts to censure others ;' or proceeds to state what he was going to say, but did not f or to give the motives which operated in his mind to induce him to form the opinion which he had ex- ' 194 E. Hans. (3), 1470 ; 196 lb. 1365 ; 232 lb. 1341 ; Can. Hans. 13th April, 1878 (Mr. McDougall). - 1 E. Com. J. 245 ; May, 362. ' 12 E. Hans. (3), 923 ; 223 lb. (8), 11S7 ; lb. 367 ; Sen. Deb. [1874], 84. * i\Iay, 359. '■> 167 E. Hans. (3), 1215. « 66 E. Hans. (3), 884 ; 105 lb. 1032 ; 223 lb. 367 ; 224 lb. 1924 ; 232 lb. 358 ; Mr. Goudgo, Can. Hans. 3rd April, 1878. • 175 E. Hans. (3), 462-6 ; 252 lb. 225. •M lb. (1), 814, 815 ; Can. Hans. [1875], 861-1. PERSONAL EX]'LAXATIOX><. 35*7 pressed ;' or to explain the language of other members ;'- or to explain the conduct of another person ; ' or to go into any new reasoning or argument. It is necessary, however, to observe here that in all cases of personal ex- planation the house is generally disposed to be indulgent and will frequently " waive a rigid adherence to estab- lished usage," especially when the j^ublic conduct of a member is involved/ The indulgence of the house will also be given to a member who has already exhausted his right of speaking, when he states that certain facts have come to his knowledge with respect to a matter in which the house is interested, and on which it is necessary that the house should come to a correct decision.' The same indulgence is almost invariably shown to ministers of the Crown, when it is necessary to place the house in full possession of all the facts and arg'uments necessary to give a full understanding of a question.'^ The house will also always be disposed to listen indulgently to explanations in refutation of statements injuriously affecting the con- •duct of important public functionaries or officers of the army or navy." But Avhile great latitude is allowed in personal explanation, no reference should be made to another member in connection with the subject except in his presence."* ' 29 E. Hans. (1), 409. 2 26 Ih. (1), 315 ; 41 Ih. 107. •' 38 E. Hans. (3), 13. * 87 E. Hans. (3), 537 ; 222 Ih. 1187 ; Sen. Deb. [1873], 10-12. See Can. Hans. 1878, 12th Feb., when Messrs. Jones and Tnpper were allowed to speak twice in personal explanation. * 2 Hatsell, 105 ; 111 Grey, 357, 41(i ; 18 E. Hans. (3), 510,555 ; C'ushing, p. 623. « 119 E. Hans. (3), 88, 153. ' 148 E. Hans. (3), 672, 1364, 1458. Can. Hans. [1878], 803. Sir John ^lacdonald, when orders were called, read memoranduniB from Chief Justice Youno 38 Pari. Eeg. 367 ; also, 6 E. Hans. (X. S.), 69, 70, 518 ; 16 lb. 470. UNPARLIAMENTARY LANGUAGE. 365 of another that he could expect uo candour from him;' that he only affected to deplore the distresses of the coun- try ;" that his remarks are insulting to the house and to the country f that he is in the habit of uttering libels in the house ;^ that he is guilty of gross misrepresentations ;' that he has acted basely or from base motives f that he is observed indulging in a smile unworthy of a man ;" that the house has a right to know whether a member meant what he said or knew what he meant.^ No member can be allowed to apply the expression " impertinence " to another member ;"' or to attribute motives'" or any inten- tion to insult others ;" or to question the honour of any one ;^" or to tell a member that he went about the country telling palpable lies ;^' or that certain members Avould shrink from nothing, however illegal or unconstitutional ;" or that " members came to the house to benefit them- selves ;" ^^ or that " a member has acted as a traitor to the sovereign ;""^ or " that liberty and regard of private right are lost to the house," and that a " minister had transferred himself from a constitutional minister into a t}Tant ;" '" or that a member has stated what he knew not to be correct ;'■* or that he does not believe a statement he himself has made ;^'-' or that he had inspired another member in a certain disorderly course which had brought down the censure of the house f or that he shelters himself behind his temporary privilege to evade a criminal action ;-' nor 1 33 E. Hans. [1], 505. -' 4 lb. [2], 243. =* 3 lb. [3], 1152, 1153. * 3 /6. [3], 1194. ^ 8 lb. [2], 410. « 27 lb. [3], 120. 'ilb. [3], 561. «4 76. [2], 240. 3 230 lb. [3], 863. '« 35 Ih. [1], 723 ; 6 lb. [2], 69 ; 231 lb. [3], 437. " 228 lb. 2029, 2030. '^ 222 lb. 329. '^ 223 lb. 1015. '^ 219 lb. 589. '^ 6 16. [2], 69. '6 257/6.1294. '' 264 lb. 390 ; Blackmore (1883), 26. i« 261 lb. 1028. '» 261 lb. 996. ^ 261 lb. 419. » Can. Hans. (1883), 519. 366 RULES OF I) EH ATE. may h«^ refer to another member "as the member who sits" for a constituency ;" or say that he is a " servile follower" of a government."^ On one occasion in the English House of Commons a member said that " at last he had got at the truth ; but it had taken a long time to extract it — not from any intention of the right hon. gentleman (Mr. Groschen), to mislead the house, but from the tendency of official habits." The speaker said, on Mr. G-oschen rising to remonstrate, that " he thought the hon. member was about to qualify his statement, and he trusted that the hon. member would now withdraw it."' On another occasion a member having spoken of " a course which he held to be unworthy of a minister of Victoria, unworthy to be listened to by any man of honour in this house," the speaker interposed immediately and said that " the hon. member was exceeding the rules of debate."* Again, when a member has intimated that he would move the adjournment, unless certain explanations Avere given, the speaker has interposed and called him to order for using language menacing to the house.'' Words which are plain and intelligible, and convey a direct meaning, are some- times used hypothetically or concUtionallij^ upon the idea, that, in that form, they are not disorderly. But this is a mis- take. If, notwithstanding their being j)ut hypothetically or conditionally, they are plainly intended to convey a direct imputation, the rule is not to be evaded by the form in which they are expressed. Thus, where a member, being called to order for jpersonal remarks, justified himself by saying that he was wholly misunderstood, he had put the case hypothetically, the speaker, Mr. Manners Sutton, said "the hon. member must be aware that putting a hypothetical case was not the way to evade what would be in itself disorderly."*' 1 Can. Hans. [1883] 520. " 220 Ih. 583. 2 Ih. (1878), 2191. 5 261 Ih. 1082. ^ 218 E. Hans. [3], 1875. ^ 7 Ih. 722, 723 ; 28 J 6. 15. CALLING A MEMBER TO ORDER. 367 It is the duty of the speaker to interrnpt a member who makes use of any language which is clearly out of order. On one occasion Mr. Speaker Sutton said : " That he always felt it a painful duty to interrupt members, but it was his tirst duty to preserve order in the house. The orders of the house were made not for the advantage of one party or the other, but for pubUc purposes, and to preserve the general freedom of debate. His sole wish, on such occasions, was to pre- serve the dignity of the house, and the regularity of debate."' In matters of doubt " or of trifling importance,'* he will naturally hesitate to call a member to order. Very often, to cjuote Mr. Speaker Sutton again, " He may feel it most convenient to leave such subjects to be regulated by the general sense of the house, taking from tliem the hint, and declining himself to interfere, unless under circum- stances likely to obstruct the public business."^ But on all occasions it is the right of a member to rise and call another member to order. He must state the point of order clearly and succinctl}^, and it will be for the si^eaker to decide Avhether the point is well taken. A member is not at liberty, in rising to order, to review the general tenor of a speech, but must object to some definite expression at the moment when it is spoken.'^ It is legiti- mate on such occasions for members to debate the point of order, but they must confine themselves strictly to it." "When the si:>eaker has pronounced his opinion it is almost invariably acquiesced in ; but while no member can be permitted to argue against it, he can take the sense of the house thereon. Rule 12 provides : "A member called to order shall sit down, but may afterwards 1 6 E. Hans. (2) 69, 70 and 944 : 8 lb. 410 ; 228 lb. (3) 2029 ; 231 lb. 437. 2 13 E. Hans. (2) 129, 130. '^ 2 Ih. (2) 944. * 13 lb. (2) 130. 5 195 E. Hans. (3) 2007. « 1 lb. (1) 800, 801 ; 7 Ih. 194, 208 ; 195 lb. (3) 2007. 368 IlCLhlS OF DEI'.ATh:. explain. TIk' Iiousc, if appealed to, shall decide; on the question, hut \vith(jut dehate. If there he no appeal the deei.sion of the ehiiir .shall he final." But there are few instances, even in the early records of the English Commons, of the speaker being overruled on such points of parliamentary order.' No such instances have occurred in the Canadian houses, though there are examples of his decisions on disputed points of procedure having been over-ruled." In all matters of doubt, the speaker will always listen attentively to the opinions of members of experience, or sometimes, instead of express- ing his opinion on either side, may ask instructions from the hoirse on the point in dispute ; ''' or refer the question to the discretion or feeling of the house ; ' or suggest that the house may, if it think proper, dispense with the rule in a particular case.' Also, in many doubtful cases, the speaker will be entirely guided by the circumstances con- nected therewith,'' and will endeavour to meet the wishes of the house, when he has heard them expressed.^ XVm. Naming a Member.— When a member has been called to order by the speaker, for a breach of parliamentary decorum, it is his duty to bow at once to the decision of the chair, and to make an apology by explaining that he did not intend to infringe any rule of debate, or by imme- diately withdrawing the offensive and unparliamentary language he may have used.'"* In case, however, a member ^ Gushing, p. 677. ■^ Can. Com J., [1873] 59. The house may also discuss as a point of order any apparent irregularity in the procedure. For instance, if a member thinlcs a question has not been put distinctly and regularly from the chair ; 174 E. Hans. (3) 1960-4, =• 7 E. Hans. (1) 188, 207, 208. * 6 lb. (1) 847 ; 4 Ih. (2) 518, 519. ^15 J6. (1)154; 16 J6. (1)739. « 1 E. Hans. (1) 800, 801. ' Mirror of P., 1840, vol. 16, p. 1634. ^" 230 Eng. Hans. (3) 863; 231 Ih. 437 ; 107 E. Com. J. 277. XAMIXa A ME MP. En. 369 persists in his uuparliamontary conduct, the speaker will ])e compelled to name him, and submit his condurt to the judgment of the house, in accordance with a very old rule : '■'That no member do presume to make any noise or disturb- ance whilst any member shall be orderly debating, or whilst any bill, order, or other matter shall be in reading or opening ; and in case of any such noise or disturbance that Mr. Speaker do call upon the member by name, making such disturbance ; and that every such person shall incur the displeasure and censure of the hou^." 1 In such a case the memlxn- whose conduct is in question should explain and withdraw, and it will be for the house to consider what course to i3ursue in reference to him. If the house consider the explanation sufficient, it will be proper for a member to make a motion to that effect, which will be adoi:)ted and duly recorded.- Or when a member has withdrawn after having been named, some one may move that he be called in and reprimanded by Mr. Speaker in his place. Even then the offender may take this opportunity of apologising to the house, through another member, for having transgressed the rules of the house ; and in such a case the house may consent to the withdrawal of the motion for censure, and allow the member to return to his i^lace in the house without a reprimand.' But whcni the house has agrc^xl that a mem- ber should be reprimanded, he will be ordered to attend in his place at a particular time ; and when he is there, in obedience to the order, the sj^eaker will request him to stand up, and immediately proceed to rejn-imand him ; and when he has iinished, the reprimand will, on motion, be placed on the journals.^ The house, in all cases, should ••ive every proper opportunity to an oflending member to make such a defence as may satisfy the house and avoid ' Res. of Jan. 22d, 1693. ■^ Can. Leg. Ass. J. [1852-:]], 120 ; //*. [ISOI], 270. •' 30 Pari. Hist. 114. * 3 Mirror of P. [1838], 2231, 2233, 2263, 2267. 24 370 RULES OF DEBATE. a repiinuind. In the (-ase of Mr. Plirasoll, in the .session of 1875, it was shown that he had made use of most offen- sive expressions " whilst extremely ill, and labouring under excessive mental excitement — the result of an over- strain acting upon avery sensitive temperament." Under these circumstances it was considered most advisable that Mr. riimsoll should not be required to attend in his place till some days later. It was accordingly agreed to adjourn the debate until a future day, when Mr. Plimsoll appeared and apologised to the house ; and then the order of the day for the adjourned debate having been read, Mr. Disraeli moved that it be discharged, which was agreed to unanimously.^ XIX. Words taken down.— When a member makes use of any disorderly and unparliamentary language, it is the right of another member to move that it be taken down.^ Still the speaker w^ill not immediately order the w^ords to be taken down, but will be guided by the sense of the house on the subject.'^ Hatsell says on this point : " The speaker may direct the clerk to take the words down ; but if he sees the objection to be a trivial one, and thinks there is no foun- dation for their being deemed disorderly, he will prudently delay giving any such direction, in order not unnecessarily to interrupt the proceedings of the house. If, however, the call to take down the words should be pretty general, the clerk will be certainly ordered by the speaker to take them down in the form and man- ner of expression as they are stated by the member who makes the objection to them." ^ The motion to take down the words should include the exact words (as far as possible) that may be objected to.^ When the motion has been made, it is allowable to dis- 1 225 E. Hans. (3), 1824 ; 226 Ih. 178. '^ See Sen. R. 27, mpra, p. 363. 3 272 E. Hans. (3), 1563, 1565. * 2 Hatsell, 273, n. » 3 Iklirror of P. [1838], 2233 ; 186 E. Hans. (3), 882. WOr.DS TAKEN DOWN. 371 arliamentary, a member will not be permitted to move that the words be taken down.' It is also the rule : " That, if any other person speaks between, or an}- other mat- ter intervenes, before notice is taken of the words which give offence, the words arc not to be written down or the party cen- sured." " Consequently the objection must be taken immediately that the words are spoken.'^ It will also be too late to interrupt the member and ask that his words be taken down if he is allowed to continue his speech for some time after he has given utterance to the objectionable lan- guage.'' When the speaker finds that the majority are in favour of taking down the words, he will order them to be taken down in the form and manner of expression as they are stated by the member who has first moved in the matter. They are then entered on the clerk's minutes, and the 1 186 E. Hans. (4), 882-887. 2 219 lb. 589. 3 115 Ih. 276. * 2 Hatsell, 269 n. ; 93 E. Com. J. 307, 312, 313. Consequently " any exception taken to words spoken in debate must ho taken on the spot at once, and no words sjioken can be noticed afterwards in the house, if such exception has not been taken to them ; and if the words themselves have not been taken down by the clerk at the table ;" 165 E. Hans. (3), 616-626. In this case there was a prospect of an encounter between two members, and the house could only proceed to prevent such a meeting ; the words originating the difficulty could not be discussed. S9E. Hans. (1), 326. " May, 378. See also 48 E. Hans. (3), 321, which shows that in the Lords also, the words must be taken down inslanUr. 372 RULES OF DEBATE. member wlio spoke the words has the right to read them or have them read to him by the speaker ;' and he may then deny that those were the words he spoke ;- and if he does so the house may proceed to consider his explana- tion and diM-ide by a question whether he had or had not used the words.' If he does not d(niy that he spoke those words,' or when the house has itself determined what the words were, then the member may either justify them or explain the sense in which he had used them with the view of removing the objection taken to them.' If his explanation or apology be deemed sufficient by the house no further proceeding is necessary.'' Or the house may feel compelled to resolve that the words are most dis- orderly, and proceed to censure him.' Or the house may resolve that the words are not disorderly by negativing the motion to censure the member.^ Or the house may ffo still further and order the offending member to be committed to the custody of the seijeant-at-arms and im- prisoned." When the words have been taken down at the table the member should explain and withdraw, and then the house will proceed to consider what course to take with reference to him."* Sometimes the house may be disposed to allow every indulgence to a member who. in the heat of debate, has allowed expressions to escape him which are calculated to offend the house or some member thereof In such a case the house will not deal immediately with the matter, but will order that it be V 1 2 Hatsell, 273, n. ; 235 E. Hans. (3), 1809-1833 ; 272 lb. 1.571. - 32 E. Com. J. 708. ^ 2 Hatsell, 273, n ; IS E. Com. J. 653. < 126 E. Hans. (3), 1194. » 2 Hatsell, 273, n ; 32 E. Com. J. 708 ; 66 76. 391 ; 126 E. Hans. (3), 1207. 6 66 E. Com. J. 391 ; 137 lb. 395. Sen. Deb. [1880], 300. ' 18 E. Com. J. 653. « 32 lb. 708. » 18 lb. 653. i» 126 E. Hans. (3), 1208 ; 235 lb. 1809-26. MISBEHAVIOUR IX COMMITTEES OR LORRIES. 373 taken into consideration at a future time, and that the member do attend in his place at the same time. When the orders of the day, for the consideration of the words objected to and for the attendance of the member, have been read, the sx:>eaker will ask if he is in his place, and will proceed to explain the state of the matter, and give him a further opportunity for an apology.^ The words of the speaker may also be taken down and recorded by the clerk, who may read them to the house, which can then proceed to deal with the matter as in the •case of any member on the floor." XX. Misbehaviour in Committees or Lobbies.— AYhen a member misbehaves himself in a committee of the whole, his con- duct must be reported to the house, which alone can cen- sure and punish any act of disorder.'^ If objection be taken to any words that a member may use in com- mittee, the chairman will put the question whether they should be taken down, and if the sense of the committee is in favour of doing so, he will proceed to report them to the house which will follow the procedure usual in all cases when a member has committed an offence.^ But when words have been taken down in committee, it is always open to the offending member to withdraw the ■objectionable expressions, and to apologise to the house for having used them. In case his apology is accepted, the fact of his having made it will be duly entered on the journals.'^ If a member insult another in any of the lobbies or rooms belonging to the i^lace, the attention of the s^^eaker may be directed to the fact when he is in the chair. It is 1 126 E. Hans. (3), 1207, 1218, 1234. ■' 32 E. Com. J. 707-S. ^ Com. R. 76; 233 E. Hans. (3). 951-956. * 108 E. Com. J. 461, 466; 126 E. Hans. (3), 1193-1207 ; 235 //-. 1809-1833. 5 137 E. Com. J. 253. 874 RULES OF DEBATE. tliuii for lln' house to consider what course it ought to take with reference to the conduct of the offending mem- ber.' XXI. Proceedings to prevent hostile Meetings.— From the fore- going and other illustrations of the procedure in the case of the use of unparliamentary language, it will be seen that it is the duty of the speaker to call upon the offending member to make an apology or retract the words which are objected to." Unless this were done, unpleasant con- sequences might at times result. If a member should send a hostile message to another on account of words used in Parliament, it will be the duty of any member, on being informed of the fact, to call the attention of the house to the matter, " as a breach of one of its most im- portant privileges, that there shall be perfect freedom of speech in its debates." The speaker, on being informed of so distinct a breach of its privileges, will at once call on the offending member, if he be j)resent, " to express his regret for the breach of privilege he has committed, and to give an assurance to the house that the matter will proceed no further." The member should then immedi- ately proceed " to accjuit himself of any disrespect to the house or its privileges and give the recjuired assurance."^' If the members are not present, the}^ will be sent for im- mediately, and the necessary assurances asked from each.* If the member who has committed a breach of order either in the house, or in a committee of the whole, or ^ Case of Dr. Kenealy who insulted Mr. Sullivan, 233 E. Hans. (3) 951- 956. See also for previous precedents, 122 E. Com. J. 221 ; 122 E. Hans. (3), 274. ■' 183 E. Hans. (3), 801-2. •' Case of Sir E. Peeland the O'Donoghue, 1862; Kio E. Hans. (3), 616-626. * Case of Mr. Praed and :Mr. E. Lytton Bulwer, 1838 ; 93 E. Com. J. 657 ; 6 Mirror of P. 1838, jip. 5132, 5137, 5138, 5147. A similar case occur- red in the legislative assembly of Canada, sess. of 1849, when angry words passed between two prominent members during the exciting debates on the rebellion losses bill ; Can. Leg. Ass. J. [1849], 88. For other cases, see 89 E. Com. J. 11 ; 91 Ih. 484-5 ; 92 Ih. 270 ; 100 //;. 589. PUNISHMENT OF MISCONDUCT. 375 in a select committee, refuse to apologise or retract the expression complained of, and there is a prospect of a quarrel arising between him and another member on ac- count of such words, it will be the duty of some member to move immediately in the house that he be taken into the custody of the serjeant-at-arms. If the member should subsequently apologize and explain that the matter will not proceed further, the motion for his arrest will be with- drawn.' XXII. Panishment of Misconduct.— Either house of Parliament has full authority to punish those members who are guilty of contempt towards it, by disorderly or contuma- cious behaviour, by obstruction of the i)ublic business," or by any wilful disobedience of its orders. Any member, so offending, is liable to punishment, whether by censure, by suspension from the service of the house, or by com- mitment, as the house may adjudge. Suspension is now the mode of punishment freely used in the English House of Commons,' under the new orders which will be found at the end of this chapter. If a member refuse to with- draw when suspended, the speaker will order him to be removed by the serjeant. It is usual when a charge of misconduct is made against a member to hear any explanation which he may have to ofier ; but " if the house should be of opinion that the offence which the lion, member has committed is flagrant and cul- pable, and admits of no apology, it will be competent first, without directing him to attend in his place, to order him to be committed to the custody of the serjeant-at- arms." This was done in the English Commons, in the case of Mr. Feargus O'Connor in 1852.' Subsequently a ' 8 E. Hans. (2), 1091-1102 ; Can. Leg. Ass. J. [1849], 88 ; 106 E. Com. J. 313 (committoe of Avholc). For procedure in ca.so of altercations in a select committee, see 91 E. Com. J. 4()4, 4()8 and 34 E. Hans. (3), 410, 480. ' Mr. .Speaker Brand, 132 E. Com. J. 375. ^ 136 E. (bm. J. 55, 5(). M22 E. Hans. (3), 367-73 ; 107 E. Com. J. 278, 292, 301. 316 nil.I'lS OF DKIIATIC. l^etitiou, stating that he was of unsound mind, was re- ceived and referred to a select committee, which reported that the alh'L;-ations therein were correct, and it was ac- coi-ding'ly ordered ihat he l)e discharged from custody.' XXIII. Withdrawal of Members.— From th(i foregoing illus- trations of the pr;ictif\ IS IONS ON Q UESTIONS. speaker orders Lliai the members be called in, no further debate will be permitted. The Senate rule is as follows : :13. " No sciniior may speak to a question after the order has been given to call in the members to vote thereon, unless with the unanimous consent of the house." Rule 82 of the Commons is equally emphatic : " "When members have been called in, preparatory to a divi- sion, no further debate is to be permitted." The speaker gives the order — " Call in the members," and the serjeant-at-arms immediately sees that all the bells are rung, and that other steps are taken to bring in all the members from the lobbies and adjacent rooms. ^ Several minutes elajise — no stated time is fixed as in the English Commons, where a sand-glass for two minutes is provided^ — and then the serjeant-at-arms returns and announces the performance of his du.ty by an obeisance to the speaker. The latter will then rise and put the ques- tion as previously explained. If any member declares he has not distinctly heard it, he has the right of asking the speaker to read it once more, even after the voices have been given .^ In the Senate the speaker says — " The contents will now rise." Then the clerk or clerk-assistant, standing at the table, proceeds to call the names — first looking at Mr. Speaker, who remains seated, and indicates by an indica- tion of the head his desire to vote, or his intention not to vote by the absence of any movement on his part. In all ' Tlio whips of the respective political parties in the house always, on such occasions, take measures to bring in the members. ^ A very loose system prevails in the Canadian Commons ; fifteen or twenty minutes — even more sometimes — pass before members take their places in answer to the call. In the English house, as soon as the voices have been taken, the clerk turns a two-minute sand-glass, and the doors are to be closed as soon after the lapse of two minutes as the speaker or chairman shall direct. Two minutes enable members to reach their places. May, 399. S. 0. xlvi., xlvii. 3 80 E. Com. J. 307 ; 114 lb. 112. TAKING A DIVISION. 38Y cases the speaker's vote should be first recorded on the side on which he wishes to vote. After the contents have been taken down the speaker again says — " The non-contents will now rise." ^ The names having been taken down, and the numbers declared, the speaker states the fate of the question in the usual parliamentary terms. In the House of Commons the speaker says — "Those who are in favour of the motion (or amendment) will please to rise." The clerk has before him a list of all the names i^rinted alphabetically, and places a mark against each name as it is called. The assistant clerk calls out the name of each member as he stands up. It is customary for members to be taken in rows ; when one row is com- pleted, the members in the next rise and sit down accord- ing as they hear their names called distinctly by the clerk." "When the members in favour of the motion have all voted, the speaker again says — " Those who arc opposed to the motion (or amendment) will please to rise :" and then the names will be taken down in the manner just described. Any member who does not rise cannot have his name recorded by the clerk at the time, as the speaker has instructed members to rise in their places. Each member is designated Hon. Mr. in the Senate, and simply Mr. , in the Commons, except in the case of a title conferred by the Queen, M^hen the clerk will designate him as Sir , but it is usual for the clerk in the Commons, as a matter of courtesy, to give prece- dence in a division to the name of the leader of the gov- ^ Senate R. 30. " In voting the contents first rise in their places, and then the non-contents." See Sen. J. [1878], 67. '■'The system of taking votes in the Canadian house has its inconveniences. It is not workahle as a rule for two or three weeks at the romnienoement of a now Parliament, since it is impossible for a clerk to know all the now members by name. Or, if the clerk who takes the division should be ill, a difliculty must always arise. The system seems peculiar to the Cana- dian Commons. The more convenient jiracticti — in vogue in legislative bodies in the United States, Europe, and the colonics — is to call the roll, when each member will respond " aye " or " no." 388 DivrsroNs on questions. crnmcnt should lie iise \vilh the rest.' A similar courtesy is paid to the recognised leader of the opposition in cases, of ])arty divisions. AVheii all the names have been duly taken dow^n, the clerk will count up the votes on each side, and declare them — yeas, — ; nays, — . The speaker will then say — " The motion is resolved in the affirmative ;" or " passed in the negative," as the case may be.- If the motion on which the house has decided is a motion in amendment,, then the speaker proceeds to put the next question, on which a division may also take place." n. Proceedings after a Division.— When the clerk has de- clared the numbers, any member has a right to ask that the names be read in alphabetical order, in order to give an opportunity of detecting any errors or irregularities.* The vote of a member may be challenged in the English Commons before the numbers are declared, or after the division is over ; but this is generally done in the Cana- dian house when the clerk has given the result.^ If a member was not present in the house when the question was put by the speaker, he cannot have his vote recorded. Rule 33 of the Senate distinctly provides that " he must be within the bar when the question is put." The speaker will inquire — " Was the hon. member present in the house when the question was i:>ut from the chair ?" If he replies in the negative, his name will be struck off the ^ Strangers are now permitted to remain in the galleries, and also on. the seats to the right and left of the speaker's chair, whilst a division is in progress ; unless, of course, the house orders the withdrawal of strangers in accordance with rule 11 of the Senate and rule 6 of the Commons. - Sen. J. [1878] 197-8 ; Com. J. [1878] 10, 79. '' Can. Com. J. [1877] 173-5 ; lb. [1878] 278-9. Sen. J. [1878] 197. jNIembers should not leave their seats before the question is finalh' declared. In 1880-1 a member's vote was struck off on account of his- leaving his place before the question was so declared ; Can. Hans. p-.72-i. * May 6, 1878, MSS. ^ 110 E. Com. J., 352 ; 139 E. Hans. 488 ; Can. Pari. Deb. [1870] 163. PAIRS— MEMBERS XOT VOTING. 389 list, and the clerk will again declare the numbers/ If a member of the Commons who has heard the c[nestion put does not vote, and the attention of the speaker is directed to the fact, the latter will call upon him to declare on which side he votes ; and his name will be recorded accord- ingly.- B)^ rule 32 of the Senate it is ordered that a senator declining to vote, shall assign reasons therefor, and the speaker shall submit to the Senate the question, " shall the senator, for the reasons assigned by him, be excused from voting?" Though "pairs," which are arranged by the whips of the respective parties in the house, are not any more authoritatively recognised in the Senate or Commons than in the houses of the English Parliament, yet it is customary not to press the vote of a member when he states that he has " paired" with another member/' If a member who has heard the ques- tion put in the Commons should vote inadvertently, con- trary to his intention, he cannot be allowed to correct the mistake, but his vote must remain as first recorded/ On the other hand, in the Senate, rule 33 provides that " with the unanimous consent of the house, a senator may, for special reasons assigned by him, withdraw or change his 1 139 E. Hans. 48(3 ; 111 E. Com. J. 47. -114E.com. J. 102; 129 Ih. 234. Mr. Mclmies, 16th April, 187S, Canadian Commons. Can. Hang. [1879] 1979 (Sir J. A. 31acdonald's remarks as to compelling members to vote). In the English Commons, ord February, 1881, INIr. Speaker informed the house that several members ^\•ho had given their voices with the noes when the question was put, had refused to quit their places, and consequently he had submitted their conduct to the consideration of the house. A number of members were then suspended for refusing to withdraw during the division after having been warned of the consequences by the S]x'.aker. 13G E. Com. J. 55-56. ■■ May, 418. Can. Hans. [1876] 685 ; Ih. [1879] 1979. Sen. Deb. [1876] 281 ; Ih. [1877] 230, 240; Ih. [1880-81] 579, 590. "An hon. member who has bound himself not to vote is bound in honour to resixjct that pledge;" (Mr. Speaker Christie.) See also Sen. Hans- [1883] 458. But pairs are recognised by the rules of the house of representatives at Washington. Smith's Digest, p. 167 ; Rule viii. (2). * 176 E. Hans. (3) 31 ; 164 Ih. 210; 242 Ih. 1S14 May ; 409. 390 DIVISIONS ON QUESTIONS. vote, immediately after the anuounccmeut of the division. "" If a member's name is entered incorrectly in the list, he can have it rectified shonld the clerk read out the names, or on the following" day when he notices the error in the printed votes.' It may be added here that when the house, by division, has decided a matter, a discussion thereon cannot be renewed nor reference made to circum- stances connected with the division." m. Questions carried on Division.— Members who are op- pose to the unanimous adoption of a motion and neverthe- less do not wish to divide the house, may ask that it be entered on the journals as " carried on a division," and the speaker will order it accordingly. The entry on the jour- nals is simply : " The c^uestion being put, the house divided, and it was resolved in the affirmative ;" ^ or " passed in the negative." ' Questions may also be entered as " Resolved in the affirmative," or " passed in the nega- tive," as " in the last preceding division." ^ Frequently in the case of numerous motions on a question, all the divi- sions are recorded as in the first." IV. Equafity of Votes in a Division.— When the voices are equal in the Senate the decision is deemed to be in the negative.' In case of an equality of voices in the Com- mons the speaker (or chairman of committee of the whole^ is called upon to give his casting vote, in accordance with section 49 of the B. N. A. Act, 186" : "Questions arising in the House of Commons shall be decided 1 Can. Com. J. [1871], 174 ; V. & P. [1879] 356; Sen. Deb. [1880] 455-6 ;. lb. [1880-81], 591. 2 232 E. Hans. (3) 1636 ; Blackmore's Dec. [1882] 91. 3 Can. Com. J. [1877] 191, 192, 200, 226; lb. [1878] 50. * lb. [1877] 200, 231 ; lb. [1878] 56 ; 129 E. Com. J. 144, 289. ^ Can. Com. J. [1877] 193, 249. * Can. Hans. [1882] 1479. Representation bill. ' B. N. A. Act 1867, s. 36. Semper prammitur pro negante is the old form of entry in the Lords J. ; 14 Lords J. 167-168. CASTING VOICE. 391 by a majority of voices other than that of the speaker, and when the voices are equal, but not otherwise, the speaker shall have a vote." And it is proyided by the rule of the house : 9. " In case of an equality of votes, Mr. Speaker gives a casting voice, and any reasons stated by him are entered in the journal." Only one case is recorded in the Canadian journals since 1867, of the speaker having been called upon to vote. The question was on a motion for deferring the second reading of an Interest Bill for three months — on which there was gTeat diversity of opinion — and the speaker voted with the yeas, but no reasons are entered in the journals.^ By consulting the various authorities on this point, it will be found that the general principle which guides a speaker or chairman of committee of the whole" on such occasions is to vote, when practicable, in such a manner as not to make the decision of the house final.^ But it may sometimes happen that the speaker's vote must be influenced by circumstances connected with the progress of a bill, especially when there appears to be much diver- sity of opinion as to the merits of a measure. In such a case the speaker may " refuse to take the responsibility of the change upon himself, and may leave to the future and deliberate judgment of the house to decide what change in the law should be made." ^ It was evidently on this ground that the speaker gave his casting vote against further progress during the session of 1870 with the Interest Bill. ^ Can. Com. J. [1870] 311. Reasons are not always given in the English journals ; 102 E. Com. J. 872 ; 98 Ih. 163. - 131 E. Com. J. 398. * 83 E. Cora. J. 292 ; 92 Ih. 490. * Church Rates Abolition bill (3rd. reading) 163 E. Hans. (3) 1322. Some cases are recorded in the journals of the Legislative Assembly of Canada of reasons being given by the speaker under such circumstances; 1S63, August sess., p. 33. 392 DIVISIONS ON QUESTIONS. V. Protest of Senators.— Wlioncvcr out' or mon; scMiators wish to record I heir opinions a^'ainisi i he, action oi" the ma- jority on any (jucslion, they may enter what is called a "protest," whit'h will be duly recorded in the journals,' in conformity with the following rule : 3-i. '' Any Hcnutor entering his protest or dissent to any votes of the Senate, witli or without his reasons, must enter and sign the same in the elerk'.s boolv, on the next sitting day, before the rising of the Senate.^ 35. " Every protest is subject to the control of the Senate, and may be neither altered nor withdrawn without the consent of the Senate ; nor can a senator, absent when the question is put, be admitted to protest." ^ A senator, who signs a protest, may assent to it as a whole, or in part ; and in the latter case he will state his particular reasons in a foot-note.^ Any protests, or reasons, or parts thereof, if considered by the house to be unbecom- ing or otherwise irregular, may be ordered to be expunged.'' Protests or reasons expunged by order of the house, have also been followed by a second protest against the expung- ing of the first protest or reasons, by which the object of the house has been defeated.'' VI. Members' Interest in a Question.— Kule 16 of the Commons embodies an old order of Parliament :" " No member is entitled to vote upon any question in which he has a direct pecuniary interest, and the vote of any member so interested will be disallowed." This interest must be of a direct character, as it was 1 Sen. J. [1875] 149 ; Jb. [1877] 201 ; Ih. [1882] 188-9. ■■'LordsS. 0. 32; May, 418. ^ The same practice obtains in the Lords ; 87 E. Hans. (3) 1137 ; 55 Lords J. 492. Sen. Deb. [1879] 432-3. * Sen J. [1877] 261 ; fb. [1879] 187 ; lb. [1882] 189. ^ 40 Lords J. 49 ; 43 lb. 82; 31ay, 419. « 43 Lords J. 82. ■ 3Ir. Sp. Abbot, SO E. Hans. (1) 1011. PERSONAL INTEREST IN A QUESTION 393 well explained, on one occasion, in a decision of Mr. Speaker Wallbridge, in the legislative assembly of Canada. A division having- taken place npou a bill respecting permanent building societies in Upper Canada (which had been introduced by Mr. Street), Mr. Scatcherd raised the point of order that, under the rule of the house, the former had a direct pecuniary interest iu the bill, and could not consec^uently vote for the same. The speaker said — " That the interest which disqualifies must be a direct pecuniary interest, separately belonging to the per- son whose vote is questioned, and not iu common with the rest of her Majesty's subjects, and that, in his opinion, as the bill relates to building societies in general, the member for Welland is not precluded from voting." ' This decision is strictly in accordance with the principle laid down in all the English authorities,^ and is in fact a repetition of one given by Mr. Speaker Abbot on a motion for disallowing the votes of the bank directors upon the Grold Coin Bill, which was negatived without a ■division.'^ Consequently the votes of members on cjues- tions of public policy are allowed to pass unchallenged.^ Public bills are frequently passed relative to railways,'' building societies, insurance companies," and salaries to m.inisters," in which members have an indirect interest ; • Can. Speakers' D., No. 135 ; Leg. Ass. J. [1865] 228. 2 2 Hatsell, 16i) n. •' May, 420 ; 20 E. Hans. (1) 1011. •* 2 Hatsell, 169 n. 5 76 Hans. (3) 682 ; 99 E. Com. J. 491. « 79 E. Com. J. 455. '' Leg. Ass. J. [1855] 1147. The votes of ministers on a bill to amend an act resixicting the civil list and salaries was questioned on this occasion- It was replied that they looked upon the bill as a general measure, appro- priating a salary for the office, and not for the individual, t*!:c. ; and on a division, the house decided that they had a right to vote. Cushing (p. 713) says : "The case of members voting on questions concerning their own pay is an exception from which no principle can properly l)e derived- It has invariably been decided in Congress, of course, tliat this was not such an interest as would disqualify ; either becausjo it was a state of necessity, or because all the memliers were equally concerned in interest." 394 DIVISIONS ON QUESTIONS. but their votos when cpiestioned have been always allowed.' AVhcn a doul)t exists as to the right of a mem- ber to vote, he should be heard in explanation and then withdraw before the usual motion is made — " That the vote of be disallowed." ^ Votes have been allowed when members have stated that they have parted with their subscriptions in a government loan, or that they had determined not to derive any advantage personally from the same ;'^ or that they had taken the necessary legal st(^ps to retire from a company about to receive govern- ment aid ;' or that their interests are only in common with those of her Majesty's subjects in Canada.'^ Members have been excused from voting on a question on the ground that they had been employed as counsel on behalf of the person whose conduct was arraigned before Parliament.'^ A member has also been excused from voting on a c[ues- tion because he was personally interested in the decision of an election committee." "While members may properly vote on any question in which they have no direct pecuniary interest, they will not be allowed to vote for any bill of a private nature, if it be shown that they are immediately interested in its 1 Bill to grant aid to the Grand Trunk Railway ; Leg. Ass. J. [185G], 062, 679, 680. ~ 80 E. Com. J. 110 ; 91 Ih. 271 ; 20 Hans. (1), 1001-12. Leg. Ass. J. [1857], 312. =• 52 E. Com. J. 632. * Leg. Ass. J. [1857], 313-4. Cases of Mr. Gait and Mr. Holton, partners in the firm of C. S. Gzowski & Co., contractors with the Grand Trunk R. R. = lb. [1857], 312-14. * Leg. Ass. J. [1858], 686. In this case. Sheriff Mercer, whose conduct was arraigned in the house, was declared to have acted upon the advice and opinion of liis counsel, Dr. O'Connor, a member at the time. On the question being put as to the conduct of the sheriff. Dr. O'Connor was excused from voting. * Leg. Ass. J. [1859], 553. One of the members for Quebec on this occa- sion asked to bo excused and the house agreed to his request. But the two other sitting membei-s voted, and the speaker ruled that they had a right to do so. PERSONAL INTEREST IN A QUESTION. 395 passage.^ Decisions, however, have been giA'en in the English Commons that it is not sufficient to disqualify a member from voting against a bill, that he has a direct pecuniary interest in a rival undertaking ;" or that a member was a landowner on the line of a railway com- pany, and that his property would be injured by its con- struction.^ Committees on opposed private bills are also constituted in the English Commons, so as to exclude members locally or personally interested ; and in commit- tees on unopposed bills, such m^embers are not entitled to vote.' A member of a committee on an opposed private bill, will be discharged from any further attendance, if it be discovered after his appointment that he has a direct pecuniary interest in the bill.^ A member interested in a bill may take part in a debate thereon, or propose a motion or an amendment in relation thereto.*^ Though the Senate has no rule like that of the Com- mons in relation to this subject, senators observe the same practice. AYhen the bill is of a public nature, a member of the Senate may properly vote if he wishes to do so." The Lords have never formally adopted a resolution on the subject, because it is presumed that " the personal honour of a peer will prevent him from forwarding his pecuniary interest in Parliament ;" "^ but they are ex- 1 May, 421-2 ; 80 E. Com. J. 443 ; 91 lb. 271 ; 13 E. Hans. (N. S.), 796. Sen. Deb. [1876], 258. '' 80 E. Com. J. 110 ; 101 lb. 873. 3 100 lb. 436. See also 212 E. Hans. (3), 1134-7. *May,424,S.O. 108-110. s 101 E. Com. J. 904 ; 115 lb. 218. « 155 E. Hans. (3), 459. ' In 1875 Senator Ryan asked if he could vote on a pulilic l)ill respe^'ting^ marine electric telegraphy, as he was a shareholder in a company affected by that bill. The speaker said that there was no rule to prevent him voting for a bill in which he had only an indirect interest, and he voted accordin^jly. Sen. J. [1875] 137-8; Hans., p. 410 (remarks of Sir A. Campbell) ; Ih. [1876] 258. ^ May, 420. 39G DIVISIONS ON QUESTIONS. empted by standing order from serving- on any committee on a private bill in which they are interested/ If it should be decided that a member has no right to sit or vote in the house, the votes he may have given during the period of his disqualification w^ill be struck off the journals,^ Vn. Recording of Names.— The names of members who vote in a division always appear in the journals of both houses — this practice having been generally followed in all the Canadian assemblies since 1^92. The names were not recorded, however, in the legislative council of Canada until 180*7, when it was made elective.' The wise practice of enabling the people to know how their representatives vote on public questions was adopted in 1836 in the Eng- lish House of Commons. The Lords have published their division lists regularly since 1857.* 1 S. 0. 178. - Case of 'yir. Townsend, a Imnkrupt, 150 E. Hans. (3) 2099-2104. Of Dr. Orton, Can. Com. J. [1875] 176; supra p. 143. => Leg. Coun. J. [1857] 31-57. * II. May's Const. Hist, 57. CHAPTER XIV. RELATIONS BETWEEN THE TWO HOUSES. I. Messages. — II. Conferences. — III. Reasons of disagreement communi- cated. — IV. Joint Committees. — Y. Interchange of documents. — VI. Relations between the Houses : — Questions of expenditure and taxation. — BiUs rejected by the Senate. — " Tacks " to Bills of Supply. — Initiation of measures in the upper chamber. I. Messages.— It was formerly the practice to commu- nicate all messages to tile upper chamber through a mem.ber of the house, whilst the legislative council trans- mitted the same through a master in chancery.^ It was soon, however, found more convenient to send all bills to the upper house by a clerk at the table." Addresses con- tinued to be carried to the legislative council and to the Senate by one or more members of the house up to a very recent period" ; but it has been the practice since 18*70 to transmit all messages through the clerks of the two houses.^ The following rules^ are common to both chambers : " One of the clerks of either house may be the bearer of mes- sages from one house to the other," 1 Low. Can. J. [1792] 42, 174 ; Leg. Ass. [1841] 168, R. 24 ; lb. [1S5S] 995 ; Leg. Coun. J. [1841] 48, 59. The clerk and clerk-assistant of the Senate are appointed masters in chancery ; Son. J. [1867-8] 65. Also, the law clerk ; lb. [1883], 15. In 1855 the office of master in ordinary was abolished in the Lords ; May, 255 n., 489 ; 15 and 16 Yict.'c.'.SO. - Leg. Ass. J. [1857], 411, 412 ; lb. [1860], 403, 430, &c. =* Can. Com. J. [1867-8], 109, 225. * lb. [1871], 294, 301. » Sen. R. 100, 101 ; Com. 97. 398 RELATIONS BETWEEN THE TWO HOUSES. " Messages so Kent may bo received at the Ijar b}- one of the clerks of the house to wliich tlicy arc sent, at any time whilst the house is sitting, or in committee, without interrupting the business then proceeding." In addition to the foregoing rules the Commons have the following : 95. " A master in chancery attending the Senate shall be received as their messenger at the clerk's table, where he shall deliver the message wherewith he is charged." 06. " Messages fi-ora this house to the Senate may be sent by a member of this house, to be appointed by the speaker.^ 98. " Messages from the Senate shall be received by the house as soon as announced by the serjeant-at-arms." In this way all bills, resolutions, and addresses are sent and received — whether the mace is on or under the table — without disturbing the business of either house. The clerk at the table is informed of the presence of the mes- senger from the other hou.se, and receives the message at the bar. If any business is proceeding at the time, the speaker will not interrupt its progress, but will announce the message (which is handed him by the clerk) as soon as it is concluded, and there is no motion before the house.- A message from the governor. general will, however, in- terrupt any proceeding, which will be again taken up at the point where it was broken ofF,'^ — except, of course, in the case of a prorogation, when the message will in- terrupt all proceedings for that session.* "Whenever either house desires the attendance of a senator or member before a select committee, a message must be sent to that effect.^ Leave must be given by the ' This is the old rule, but it is practically obsolete. - 131 E. Com. J. 290 ; Can. Com. J. [1877], 244. =* 129 E. Com. J. 66. * 131 E. Com. J. 424. Can. Pari. Deb. [1873], 210-11 ; supra, p. 358. nsi E. Com. J. 87, 100, 168 ; Sen. E. 102 ; Can. Com. J. [1877], 142, 178^ 234. See chapter ou select committees. MESSAGES— CONFERENCES. 399 house to which the member belongs, and it is optional for him to attend/ In case the attendance of one of the officers or servants of either house is required, the same course will be pursued ; but it is not optional for them to refuse to attend.- In 1870 a message was sent to the Senate requesting that they would give leave to their clerk to attend the committee of public accounts, and lay before that committee an account of the sums paid to each member of the Senate as indemnity and mileage.* The Senate did not comply with the request, but simply com- municated to the Commons a statement on the subject."* In a subsequent session the Senate agreed to a resolution instructing the clerk to lay before that house at the com- mencement of every session, a statement of indemnity and mileage, and to deliver to the chairman of the committee of public accounts a copy of such statement, whenever an ap- plication maybe made for the same.'^ In answer to a message from the house in 1880, the Senate gave leave to their clerk to furnish details of certain expenditures of their own for the use of the same committee, adding at the same time an expression of opinion that '* the critical examination of the details of such disbursements was, in the interest of the harmonious relations of the two houses, best left to the house by whose order payment is made.'"^ II. Conferences.— In former times, before the mode of com- munication between the two houses was simplified as it is at present, it was usual to hold a conference in all cases of difficulty and disagreement between the council and 1 131 E. Com. J. 93, 100, 191 ; Sen. E. 102; Sen. J. [1877], 129, 203 ; Can. Com. J. [1877], 150, 182, 237 ; Son. J. [1882], 159. - 113 E. Com. J. 255 ; Son. R. 102 (chapter on select committees); Can. Com. J. [1870], 210. '^ Can. Com. J. [1870], 210 ; Sen. J. [1870], 130. * Can. Com. J. [1870], 265 ; Son. J. [1870], 149 ; Pari. Deb. 1184, 1214. ^ Sen. J. [1872], 9(3 ; Deb. 92. « Can. Com. J. [1880], 130, 158-9, 242 ; Sen. J. 112. 400 i: i: I, ATIONS BETWEEN THE TWO HOUSES. assembly.' Though ooiiferences have not been held of recent years, still the Senate and Commons have con- tinued their rules on the subj(?ct, for cases might arise Avhen it would be found convenient to resort to this ancient method of maintaining a good understanding be- tween these two branches of the legislature." Under these circumstances, it is necessary to refer to the principal rules which regulate a conference. Conferences are conducted by members appointed by both houses for that purpose, and are held in a room sejjarate from either of the two houses.'' It is the pri- vilege of the Senate to name both the time and place of meeting, whether they or the Commons first request such conference.^ It is an old rule that " the number of the Commons named for a conference are always double those of the Lords." ^ ; but it is not the modern practice to specify the number of managers for either house. Neither is it " customary nor consistent wuth the principles of a conference to appoint any members as managers unless their opinions coincide with the objects for which the con- ference is held." '^ It is also an ancient rule that the con- ference can be asked only by that house which is at the time in the possession of a bill '' or other matter.* Kule 99 of the Canadian house also provides : ' In tho old days of conflict between the two houses in Lower Canada, it was often the practice to nominate committees to keep up a good corres- pondence between the two houses. Ass. Jour. [1819], 9, 10. ^ See following instances of conferences in Canadian practice since 1840 ; Leg. Ass. J. vol. 19, pp. 105, 114, 117, 138, 376 ; lb. vol. 20, p. 169 ; lb. vol. 22 pp. 285, 286, 287. The last occasion of a conference in Canada was in 1863. * The " painted chamber " in the English Parliament. Lords' S. O. 50. * As in the Lords, Isiny 493 ; 1 E. Com. J. 154 ; 9 lb. 348. = 1 E. Com. J. 154 ; Can. Leg. Ass. J. [1861], 114, 117. « May, 493 ; 1 E. Com. J. 350 ; 122 Ih. 438- The number on the part of the Lords was generally eight ; of the Commons, sixteen. The numbers were the same in the Canadian houses. ' 1 E. Com. J. 114 ; 13th March, 1575. 8 2 76.581; 9 76.555. CONFERENCE. 401 " When the House shall request a conference with the Senate, the reasons to be given by this house at the same shall be pre- pared and agreed to by the house, before a message shall be sent therewith."^ It is not necessary, however, in requesting a conference to state at length the purpose for which it is to be held ; it is sufficient to specify it in general terms, so as to show the necessity for having it held." "When the time has come for holding the conference the clerk will call over the names of the managers who will proceed forthwith to the place of meeting.'^ The duty of th(> managers, on thn part of the house x^i'oposing the conference, is confined to the delivery to the managers for the other, of the commu- nication, whatever it may be, and the duty of the managers of the other house is merely to receive such communication. They are not at liberty to speak, either on the one side to enforce, or, on the other, to make objec- tions to the communication. One of the managers for the house proposing the conference (the member first named, unless othen-wise agi'eed upon)^ first states the oc- casion of it in his own words,^ and then reads the commu- nication, and delivers it to one of the managers for the other house, by whom it is received. When the con- ference is over the managers return to their respective houses, and report. Such reports should always be made, in accordance with correct parliamentary practice." The Senate has the following rule : 103. " None are to speak at a conference with the House of Commons but those that are of the committee; and when anv- 1 Leg. Ass. J. [1860], 376 ; 122 E. Com. J. 438, 440. •^ 4 Hatsell, 423 ; 88 E. Com. J. 488 ; 89 lb. 232 ; Leg. Ass. J. [1861], 103. '•' 113 B. Com. J. 182 ; 150 E. Hans. [3], 1859. * Pari. Reg. [53], 108. '" Speaker Onslow, 4 Hatsell, 28, n. « May, 494. 113 E. Com. J. 182 ; Can. Leg. Ass. J. [18(i:], Aug. sess.] 287. Somotimes the managers appear from tho Canadian jdurnals to Lave made no report. 26 402 hjclatioxs between the t]vo houses. lliiiig I'roiii siicli eoiil'crciice is ivported, the hcnutors of the ooin- mitteo are tj(M.-t a money or tax bill wheu they feel they are warranted by the public necessities in resorting- to so extreme and hazardous a measure, the Senate are now practically guided by the same principle which obtains with the House of Lords, and acquiesce in all those measures of taxation and supply, w^hich the majority in the House of Commons have sent dowm to them lor their assent as a co-ordinate branch of the legis- lature. The Commons, on the other hand, acknowledge the constitutional right of the Senate to be consulted on all matters of public policy.^ As an illustration of the desire of the Senate to keep closely wdthin their constitutional functions, we may refer to the fact that that house has declined to appoint a committee to examine and report on the public accounts, on the ground that while the Senate could properly ap- point a committee for a specific purpose — that is, to inquire into jiarticular items of expenditure — they could not nominate a committee like that of the Commons to deal with the general accounts and expenditures of the domin- ion — a subject wdthin the jurisdiction of the lower house, where all expenditures are initiated.^ It is legitimate, however, for the Senate to institute inquiries, by their own committees, into certain matters or questions which involve the expenditure of public money.^ But the com- mittee should not report recommending* the payment of a specific sum of money, but should confine themselves to a general expression of opinion on the subject referred to them/ ^ See remarks of Lord Palmerston on paper duties repeal bill, 159 E. Hans. (3), 1389. Also, Mr. Collier, p. 1413 ; Lord Fermoy, p. 1453. - Sen. Deb. (1870), 816-818. ■^ 1 Todd, 433 ; 129 E. Hans. (3), 1097 ; 1(34 Ih. 394, 401 ; Sen. J. (1878), 59, 62. * The Gatineau booms and piers committee in 1875 recommended a payment of $1,000 to one Palen ; tlio rei)ort was amended, so as to recom- mend the matter simply to the favourable consideration of the govern- ment ; Sen. J. (1875), 218, 273 ; Deb. pp. 718-722. See also Beveridge c Sir J. A. Macdonald and others. - 42 Vict. c. 13, s. 1. This provision is in accordance with English practice ; 25 and 20 Vict. c. 78, s. 2, Imp. Stat. ; 1 Todd, 495. One example is given in the same work of a contract being laid before both houses of the Imi)e.rial I'arliament ; 28 and 29 Vict. c. 51 (Dockyards at Portsmouth and Chatham). INITIATION OF MEASURES. 411 governors to enforce the observance of the strict usaa-e by refusing their assent to any bill in which it might be in- fringed/ No modern examples can be found in the English or Canadian journals of a practice, now admitted to be un- constitutional in principle and mischievous in its results. The Senate, however, still retain among their standing orders the following rule which is almost identical with that of the Lords : " " 48. To annex any clause or clauses to a bill of aid or sup- ply, the matter of which is foreign to and diticrent from the matter of the bill, is unparliamentary." Initiation of Measures in the Upper Chamber. — From the necessity of introducing all financial and fiscal measures in the lower house, directly responsible to the people, the gi-eat bulk of legislation is first considered and passed in the Commons, and the Senate frequently for weeks after the opening of Parliament have had very few bills of an important character before them. The consequence is that very important measures are constantly brought from the Commons at a very late period, when it is clearly impos- sible to give them that full and patient consideration to which legislation should be submitted in both branches. As we have already seen, the Senate refused to consider the criminal laws in the first session of the dominion Parliament on account of the late period at which they were brought up.'^ The question of initiating more im- portant legislation in the upper chamber has been con- ' See remarks of Vise. Goderich, April 10th, 1S32, giving reasons for disallowing a bill passed by the Lower Canada legislature respecting the independence of tjie judges, which also contained a clause asserting the right of the legislature to appropriate, according to ite discietion, thi*. whole of his ^Majesty's casual and territorial revenues. 3 Christie, 455 ; L. C. Jour. 26th Nov., 1832. See also on this point 3 Hatsell, 218-255 ; lU Lords' J. 369 ; 17 / 6. 185 ; 13 E. Com. J. 320 ; 159 E. Hans. (3), 1550- '^ 17 Lords' J. 185. See chapter on Supply, Appropriation Bill. ^ Supra, p. 409. 412 liELATIONS BETWEEN THE TWO HOUSES. stantly discussed in that body,' and committees have even been formed to consider the subject and provide a means of meetinji- Ihc dilTic.ulty.- An effort has, ho\v, South Africa Bill. 2V 418 COMMITTEES OF THE WHOLE. If it be found expedient in either house to refer the point of order to the speaker, a member will move that the cliairman report progress and ask leave to sit again that day. When the speaker has resumed, the chairman will report that the committee wishes to be instructed as to the point in question. The house will then proceed to take the matter into consideration, and the speaker having been requested to give his opinion will decide the matter in dispute ; then unless there is an appeal to the house against the speaker's decision, the committee will resume its proceedings.^ In case of disorderly proceedings in committee, such as unseemly noises and interruptions, the chairman will endeavour to preserve order,and will rebuke those guilty of such breaches of i)arliamentary decorum ; - but he cannot put a question censuring a member ; that can be done by the house alone." In a very urgent case of disorder, the speaker may take the chair immediately, without waiting for the report of the chairman.^ "When improper language is used by a member towards another, the words may be taken down in committee, and reported to the house which will deal with the matter in accord- ance with its rules and usages.'' If the committee has risen, reported progress and ob- tained leave to sit again on a future day, the speaker will not put any question, but will immediately call a member to the chair when the order has been read ; but this prac- tice does not apply to committees of supply and ways and means. The standing order of the English Commons is as follows — there being no written rule in the Canadian house on this point : " When a bill or other matter (except supply or ways and ^ Can. Com. J. 1875, April 1st ; general acts respecting railways. 91 E. Com. J. 104 ; 126 E. Hans. (3), 1240 ; also, Sen. J. (1875), 137-8. ■' 239 E. Hans. (3), 1790. '^ R. 76, p. 417. 126 E. Hans. (3), 1193 ; 235 lb. 1810 ; 108 E. Com. J. 461. * Case of J. Fuller, 65 E. Com. J. 134-136. = 235 E. Hans. (3), 1809-1833. See chapter on debate, s. xx. RULES OF PROCEDURE. 419 means) lias been partly considered in committee, and the chairman has been directed to report progress, and ask leave to sit again, •and the house shall have ordered that the committee shall sit again on a particular day, the speaker shall, when the order for the committee has been read, forthwith leave the chair, without putting any question, and the house shall thereupon resolve itself into such committee.'" No motion or amendment in committee need be seconded." In case of a division being called for, the members rise and the assistant clerk counts and declares the number on each side, and the chairman decides the question in the affirmative or negative, just as the speaker does in the house itself. No names are recorded in com- mittee. Consequently but few divisions take place in committees of the w^hole.^ One of the clerks-assistant keeps a record of the pro- ceedings of committees of the w^hole in a book, to which members can always have access. The chairman of the committee signs his initials at the side of every section of a bill or resolution, and his name in full at the end. The proceedings of the committees of supply and of ways and means arc always recorded in the journals ;' and the same is done in the case of all resolutions which provide for the expenditure of public money or for the imposition of taxes, and have to be received on a future day.^ The proceedings in committees on bills are not given in the Canadian journals,*' though it is the invariable practice in the English Commons to do so when amendments are pro- posed or made." In case of amendments being moved or divisions taking place on a question, they are sometimes 1 S. 0. 25th June, 1852 ; no. Hi. ■' May, 433. ■' Sen. J. (1878), 215 ; lb. (1879), 272. In the Lords the names are given —Lords' J. (109), 173-5. * Can. Com. J. (1877), 44, 53, 74 ; 129 E. Com. J. 100, 133, 258. '■> Can, Com. J. (1876), 74 ; lb. (1S77), 155, 15G. 6 lb. (1877), 161. " 129 E. Com. J. 191, 198, 205. 420 COMMITTEES OF THE WHOLE. recorded in the Canadian Commons' journals, but this practice is exceptional.' In the Senate the proceedings of all committees are rocorded in the journals in accordance with an express ordi^r.- It is not regular to move an adjournment of the debate on a question or an adjournment of the sittings of the com- mittee to a future time ; ' but certain motions may be made with the same effect. If it is proposed to defer the discussion of a bill or resolution, the motion may be made — " That the chairman do report progress and ask leave to sit again ;"^ and if this motion (which is equiva- lent to a motion for the adjournment of the debate)'' be agreed to, the committee rises at once, and the chairman reports accordingly. The speaker will then say — " When shall the committee have leave to sit again ?" A time Avill then be apj)ointed for the future sitting of the com- mittee." But if a member wishes to supersede a question entirely, he will move — " That the chairman do now leave the chair." '' Rule 7T of the House of Commons provides : " A motion that the chairman leave the chair shall always be in order, and shall take precedence of any other motion." If this motion (which is equivalent in its effect to a motion for the adjournment of the house)"^ be resolved in the affir- mative, the chairman will at once leave the chair, and no report being made to the house, the bill or question dis- appears from the order paper.^ Two motions to report ' Can. Com. J. (1867-8), 32 ; Ih. (1870), 230-1. - Sen. E. 91, supra, p. 416; Sen. J. (1878), 215. ■■' Sen. R. 88, supra, p. 41-5, May, 439. ^ 132 E. Com. J. 395. '" Evidence of Mr. Raikes, chairman of C, before committee on public business, 1878, p. 89. The discussion on this motion may be on a bill or question generally ; 239 E. Hans. (3), 633. « Can. Com. J. (1877), 76. " 132 E. Com. J. 395. » Evidence of Mr. Raikes, C. on P. B. 1878, p. 89. » 117 E. Com. J. 177 ; Can. Com. J. (1874), 326 ; Ih. (1869), 106, 288, 303. MOTIOy TO SUPERSEDE A QVESTIOX. 421 progress cannot immediately follow each other on the same , tliese subjects were all referred to one committee on banking, commerce and railways. Sen. Hans. (1879), 38. A committee is also sometimes appointed to manage the refreshment rooms, Sen. J. (1880), 33. 3 Sen. J. (1883), 41. * Sen. J. [1878], 36-37 ; Ih. [1879], 44-r, ; 11,. [1882], 29-30. ^ Min. of P. [1878], 2(5-27 ; ///. [1882], 18-20 ; Ih. [1883], 35-3-ularly organized;' and this he vv^ill do ])y placing himscli' immediately in communication with the clerk of the house.- The committee having met, and a quorum being pre- sent, the members will proceed to elect a chairman."^ If there is no cjuorum present this proceeding must be de- ferred until the requisite number are in attendance ; or the organization of the committee may be delayed until another day.' It is the duty of the chairman to preserve order and enforce the rules. Committees are regarded as portions of the house, limited in their inquiries by the extent of the authority given them ; but governed for the most part in their proceedings by the same rules which prevail in the house, and which continue in full operation in every select committee.^ Every C[uestion is determined in a select committee in the same manner as in the house to which it belongs.'' In case a difference of opinion arises as to the choice of a chairman, the procedure of the house with respect to the election of a speaker should be followed. That is to say, according to correct practice, the clerk j^uts the question and directs the division in the same way as is done on that occasion by the clerk of the house. The name of the member first proposed will be first submitted to the committee, and if the question is decided in the affirmative, then he takes the chair accor- dingly ; but if he is in a minority in the division, then the clerk puts the question on the other motion. In English practice, when no difierence of opinion occurs in the aj)- 1 Sen. Hans. [1883], 49. "^ Rep. of Com. on the cultivation of tlio vine, App. Xo. 7, 1867-8 ; Can. Com. J. ^ Can. Com. .J. [1873], 276 ; lb. 18S3, App. Xo- 2, King's election case. * May, 454. 5 11 E. Hans. (2), 912, 914 ; 32 Ih. (3), 501-2-3-4. « May, 461. PROCEEDINGS IN COMMITTEE. 439 poiutment of a chairmau, the member proposed as chair- man is called to the chair without any question being put.' "W^henever no quorum is present the attention of the chairman should be called to the fact at once by the clerk, and business must be suspended or adjourned.- The names of the members present each day must be entered in the minutes by the clerk, and may be reported to the house on the report of the committee ; ' but it is usual to do so only when the question is of particular importance, and all the proceedings are reported.' When there is no evidence taken, it is usual to make only a general report, giving the opinion or observations of the committee.^ The minutes, however, must be kept in a proper book by the clerks of the diiferent committees in the two houses for reference.'^ The name of a member asking a question of a witness should be entered." The rules that govern the conduct of members in the house should govern them when in committee. It is a rule of the Senate (03), that " senators speak uncovered, but may remain seated." "When members of the Commons attend the sittings of a committee, they assume a privilege similar to that exercised in the house, and sit or stand without being uncovered.'* Members of the committee, however, should observe the rules of the house itself, when they address the chair. ' May, 4()1. See. a summary of a useful little treatise, ])y tiie late Mr. Eales, principal clerk of committees in the English Commons, given in Mr. Palgraves Handbook, pp. 83-88. ^ English S. O., 25th June, 1852, No. xxxiv. ^ This is the S. O. of the Lords and Commons ; Lords' J. 25th June, 1852 ; Com. S. O. xxxii. See proceedings in King's Co. election case, Can, Com. J. 1S83, Ai)p. No. 2. * Printing E., App. No. 2,1869, p. 11 ; Public Accounts K., Ai)p. No. 2, 1873 ; Canada Pacific R. R. Com. Jour. [1873], 275. '■> Printing R., App. No. 1, 1876. « Sen. Hans. [1883], 474-5 (Mr. Vidal). ■ Infra, p. 457, Can. Com. J. 1883, App. No. 3. « May, 461. 440 COMMITTEES. It is also the practice in the Canadian Commons to fol- low the English rule wilh respect to divisions in a select committee : '* That in the event oi" any division taking place in any selecl committee, the question proposed, the name of the proposer, and the respective votes thereuj^on of each member present, be entered on the minutes of evidence, or on the minutes of pro- ceedings of the committee, (as the case may be) and reported to the house (m the rejiort of such committee.'" The standing order of the Lords is verbatim et literatim the same as that of the House of Commons.- In the Senate, however, it has not been the invariable practice to record the names in the divisions of committees and report them to the house — the case of the printing committee not being in point, as it is a committee, not of one, but of two houses. This question came up in the Senate during the session of 18t8, and there appeared to be considerable difference of opinion whether the rule of the Lords ought not to apply thereafter to the proceedings of their committees.'^ From an entry made in the journals subsequent to this discussion it will be seen that the names are recorded on a division in a select committee, and ordered to be reported to the Senate.^ The journals, however, show a record of diA'isions only in those select committees to which special matters of inquiry have been referred, and which report their minutes of evidence or iDroceedings to the house. As it is shown towards the end of this chapter, the sessional com- mittees on bills do not report their proceedings, but only the conclusions to which they have come. ' S. O xsxiii. Can. Com. J. 18G0, printing R.. App. Xo. 2, pp. 10-12 ; Ih. 1870, public accounts. - Resolution of.7th Dec, 1852. ■' Sen. Deb. [1878], 413. ^ Com. on Can. Pacific E. R., -1st May, 1878 ; Jour. p. 254. See also remarks of jNIr. iMiller, Sen. Hans. (1883), 476. The names were recorded and reported in the case of the committee on the Palen contract in 1875 ; Jour. 1). 221. TIME OF SITTING. 441 In cases where there is much evidence to be taken by a committee, it is usual to ask authority from the house to employ a short-hand writer/ whose remuneration is fixed in the Commons at the rate of $5 for each sitting of the committee, and 30 cents per folio of 100 words." Committees should be regularly adjourned from day to day, though in the case of select committees particularly, the chairman is frecjuently allowed to arrange the day and hour of sitting, but this can only be done with the consent ■of all the members ol the committee.'^ Committees are not permitted to sit and transact business during" the session of the house. It is a rule of the English House of Commons : " That the serjeant-at-arms attending the house do, from time to time, when the liouse is going to prayers, give notice thereof to all committees ; and that all proceedings of committees, after such notice, be declared to be null and void, unless such com- mittees be otherwise empowered to sit after prayers."^ If it is necessary that a committee meet while the house is sitting in the afternoon or evening, leave must be obtained for it to sit until such hotrr as may be agreed upon.' In the Canadian House of Commons, committees fre- ' Can. Com. J. (1877), 117 ; Ih. (1S78), 109. Sen. .1. (1883), 8.5. ^ 76.(1874), 201. ^ May, 464 ; 205 E. Hans. (3) 685. * June 25, 1852 ; 19 E. Hans. (3) 381. In 1879 ]\Ir. Spo.akcr Brand quotcl the following passage from a manuscript book prepared by !Mr. Six^akor Abbot in 1805 : " On the appearance of the mace at a committee, the <'ommittoe is dissolved. But it is usual and convenient first to inform the committee that the speaker intends or threatens to send the mace if they do not come; and for the messenger, Avhon the mace is coming, to inform the committee of it that they may adjourn and not bo dissolved." Mr. Brand added that whilst he had, on the previous day, followed a •course founded on the practice set forth in tlie foregoing paragraph, yet he had no authority to compel the attendance of members who are serving on committees ; 245 E. Hans. (3) 1499-51. ^ 129 E. Com. J. 122, &c. May, 463. 442 committi:es. quently sit on Saturday.' Committees of the Senate sometimes sit on the same day, and it was Ibrmerly the pra('ti(^e to move for leave to do so.' The point was at last properly raised whether such motion for leave is not unnecessary, since the Lords have a rule which permits select committees "to sit notwithstanding" any adjourn- ment of the house, without special leave."' As the Senate draws its precedents from the Lords in unprovided cases, the sx^eaker has decided that a motion for special leave to sit on Saturday is unnecessary.' Sometimes a committee is authorized by the house to adjourn from " place to place as may be found expedient,"' or to meet at a particular place,'' but no committee can sit after a prorogation. A memorable case in point occurred in the session of 18*73 in the Canadian Commons. It was moved that a select committee be appointed to inquire into certain matters relating to the Canadian Pacific Rail- way, and that it have power, " if need be, to sit after the prorogation." The resolution was agreed to, but members had serious doubts whether a committee could sit as pro- posed. It having been admitted by all parties after further consideration that the house could give no such power to a committee, it was arranged that the house should adjourn to such a day beyond the 2nd of July, as would enable the committee to complete the investigation, and to frame a report." The date eventually determined upon was the 13th of August, when Parliament was prorogued, but circumstances arose to prevent the committee making a report to the house." ^ In the English Commons, committees cannot meet on Saturday, unless the house, is sitting on that day. Leave must be given by the house. May, 404 ; Pari. Reg. (03), 013. 2 Sen. J. (1877), 190. =* May, 448. * Sen. Deb. (1878), 120 ; lb. (1882), 128 (Senators Dickey and 3Iiller). ^ 107 E. Com. J. 279 ; 111 J 6. 318 ; Romilly, 304, n. « Can. Com. J. (1873), 294 (Pacific R. R. Com.) ' See statement of Lord Dufferin on this (question in the Can. Com. .T. Dirisioxs. 443' It is the rule of the Lords that in their committees the chairman votes like any other peer ; and if the members be equal on a division, the question is negatived {semper prccmmitur pro negiuiteY It is the rule of the English Com- mons that the chairman of a select committee " can only vote when there is an equality of voices."^ The practice of the English houses prevails in the Senate and Commons. The same rules, in fact, obtain with respect to divisions in committees as in the house itself.'^ On one occasion since 186*7, the Commons ordered that all questions should be decided by a majority of the voices, includinu' the voice of the chairman, who was not, in that case, to have a second or casting vote/ In the committees of both houses on private bills, however, the chairman can always vote, and has a second or casting vote when the voices are equal.' In the Senate committees, no persons except senators are allowed to be present. Their rules are as follows : 94. "Senators, though not of the committee, are not excluded from coming in and speaking ; but they must not vote ; they sit behind those that are of tlie committee.'"' 95. " jSTo other persons, unless commanded to attend, are to enter at any meeting of a committee, or at any conference."^ Strangers are permitted to be present during the sittings of a committee of the Commons, but they may be excluded at any time ; and it is the invariable practice for them to withdraw when the committee is discussing a particular 1873 (2d sess.), pp. 15 et mj. Also, Can. Com. J. (1873), 137, 275, 287, 294, 368. Supra, p. 238 as to ofTect of prorogation on romiiiittees and pro- ceedings generally. ' May, 461. 2 91 E. Com. J. 214. 3 Sen. J. [1875], 221 ; lb. [1878], 2-54. Can. Com. .1. (1870), public accounts, App. No. 2 ; liore the chairman did not vote ; Ih. (1873), 278 ; liore there was a tie, and tlie chairman voted. ' Can. Pacific R. 11. Com. (1873), 4.30. ^ Sen. R. 65 ; Com. R. 62. See chapter on jirivatc bills. « Lords, S. 0. No. 46. '' Same practice in Lords, S. O. 44. 444 (JOMMITTEES. point oi' oi(lc)', or dclihcraliim' on its rciport.' Membei'H of the Commons may Ix; present during the proceedings of their committees, and a committee has no power of itself to exclude any member at any stage of its proceedings. Sir Erskine May, after citing a number of precedents on this point, comes to this conclusion : " These precedents leave no doubt that members cannot be excluded from a committee- room by the authority of the committee ; and that if there should be a desire on the part of the committee that mem- bers should not be present at their proceedings, where there is reason to apprehend opposition, they should apply to the house for orders similar to those already noticed. At the same time, it cannot fail to be observed that such applications have not been very favourably entertained by the house."' Consequently the house will at times appoint secret committees which will conduct their pro- ceedings with closed doors.' Such committees are often chosen by ballot in the English Parliament.^ It has been decided that " a member who is not a member of the com- mittee, has no right whatever to attend for the purpose of addressing the committee, or of putting questions to wit- nesses, or interfering in any way in the proceedings." '' It is a clear and undisputable principle of parliamentary law that a committee is bound by, and is not at liberty 1 Can. Com. .J. (1869), App. 8, p. 4 ; 247 E. Hans. (.3), 19.57-8. - Page, 460. 1 E. Com. J. 849 ; 38 76. 870 ; G6 /6. 6 ; 67 Ih. 17 ; 247 E. Hans. (3), 1958. 3 53 Lords' J. 115 ; 92 E. Com. .1. 26 ; 99 lb- 461 ; 112 76. 94 ; 96 E. Hans. (3), 987, 1056. * 67 E. Com. J. 492 ; 74 Ih. 64. 51 Lords' J. 438 ; 37 E. Hans. (1), 1-55 ; ■Cushing, p. 733. In the session of 1873, Canadian Commons, the com- mittee appointed to inquire into certain charges brought by Mr. Hunt- ington, relative to the Pacific E. R., reported a resokition that the pro- <'eeding6 should be secret (.Tour. p. 275). But the chairman did not press the resolution out of deference to the Avishes of the government (P. Deb. p. 146), and it was subsequently rescinded bj' the committee itself (Jour- V- 294). '" 73 E. Hans. (3), 725-6 ; Cushing, p. 745. ORDER OF REFEREXCE. 445 to depart from, the order of reference.' This principle is essential to the regular despatch of business ; for, if it were admitted, that what the house entertained, in one instance, and referred to a committee,was so far controllable by that committee, that it was at liberty to disobey the order of reference, all business would be at an end ; and, as often as circumstances would afford a pretence, the pro- ceedings of the house would be involved in endless con- fusion and contests with itself.' Consequently if a bill be referred to a select committee it will not be competent for that committee to go beyond the subject-matter of its pro- visions.' If it be found necessary to extend the inquiry, authority must be obtained from the house in the shape of a special instruction. Such an instruction may extend or limit an incjuiry, as the house may deem expedient.^ Sometimes when a committee requires special information it will report to the house a request for the necessary papers- which will be referred to it forthwith.'' The committee can obtain directly from the officers of a department such papers as the house itself may order ; but in case the papers can be brought down only by address, it is neces- sary to make a motion on the subject in the house through the chairman. When the ]3apers have been received b}- the house, they will be at once referred to the committee. Orders in council are asked for in this way." It is frec^uently found necessary to discharge the order for a committee and appoint another with a different order of reference." 1 May, 440. Pari. Reg. (22), 258 ; 190 E. Hans. (3), 1SG9. 2 CiiehiuK, p. 741. 12 Pari. Reg. 382. ■■' 190 E. Hans. (3), 1809. * 101 E. Com. J. 030 ; 105 lb. 497 ; 121 Ih. 107 ; 190 E. Hans. (3), lS7(i. Can. Com. J. (1867-8), 33, 157 ; Ih. (1870), 110 ; lb. (1871), 34 ; lb. (1873), 186. * Can. Com. J. (1875), 176 (public accounts). Sec remarks of Sir .\. MacNab, Leg. Ass., June 7th, 1856 {Globe report). " Can. Com. J. (1883), 90-92, 95. Previous to this year the correct prac- tice was nf)t generally followed. ' Conventual establishments, 18th ^lay, 1854. This case " presents 446 COM.VJTTl'JJJS. VI. Reports of Committees.— When a comiuittee has gone through the business referred io it, tiie duty oi" f)reparing a report is d<^volved upon one oi" the meniln-rs, usually the chairman, by whom it is prepared accordingly, and sub- mitted to the committee for its consideration. The report of a committee, both in its form and as to its substance, ought to correspond with the authority of the committee.' As a rule, draft reports should be submitted like rc^solutions in the house itself, and amendments proposed thereto in the ordinary mode.^ If the business of a committee involves an inquiry of fact, it should report the facts, or the evidence ; if the opinion of the committee is required it should be expressed in the form of resolutions.'^ Very frequently when a number of questions are before a committee, resolutions relative to each are proposed sepa- rately, and amendments submitted, and when a decision has been arrived at, the report is adopted and ordered to be reported to the house with the minutes of evidence and proceedings.^ Sometimes the minutes of evidence and proceedings are simply reported to the house, without any observations or opinions on the part of the committee.'"' It must, however, always be remembered that the report submitted to the house is that of the majority of the com- mittee. No signatures should be affixed to a rejDort for the purpose of showing any division of oj)inion in the com- mittee ; nor can it be accompanied by any counter-state- ment or protest from the minority,'^ as such a report is as unknown to Canadian as to English practice. When the examples of every conceivable obstacle that can be opposed to the nomi- nation of a committee after its appointment ;'' May, 456. Also, con- ventual and monastic institutions, 1870. 1 60 Pari. Reg. 391, 395, 396. 2 May, 467. ^ 12 E. Com. J. 687. * Can. Com. J. 1870, public accounts, App. No. 2, pp. 12-32 ; lb. 1874, App. No. 9, p. 144 ; lb. 1878, Ajip. No. 1, p. 50. » lb. 1870, 4th E. of public accounts ; lb. 1878, 3rd E., App. No. 1. ^ Palgrave, Chairman's Handbook, S3. SUB-COMMITTEES. 447 ohairmau signs a report it is only by way of authenti- cation. In 1879, a report of a dissenting member was brought in and appeared in the votes, but attention hav- ing been called to the irregularity of the proceeding, this minority report was ordered not to be entered on the Jour- nals.' The rule with respect to such matters, however, has been more than once practically evaded by permitting a minority report to appear in the appendix to the report * of the committee." It has also been customary to report the proceedings of sub-committees to the house. The practice of re- ferring matters to a sub-committee who report thereon to the committee has largely obtained for years in the Canadian Parliament, and has frequently been found very convenient in cases demanding special inquiry and investigation, which could not be as well done by the larger body. The sub-committee, however, cannot report directly to the house, but only to the committee from which it obtains its authority, and it is for the latter to order as it may think proper with respect to the report of this sub-committee.^ Such a report has sometimes been submitted to the house by the committee as its own report.^ These sub-committees have undou])tedly been found ex- ceedingly useful in the consideration of private bills. It is now a common practice of the large committees — the committee on railways, canals and telegraph lines for instance, — to refer certain bills to a few members who have si)ecial qualifications for this duty, and are better able to study and perfect the various details of the measures. In this way there is a x)ractical approach to the small select ' River Trent Navigation and Canal Works, Votes, pp. 511-12. By some error of a dork this minority report nevertheless appears in the journals. ^ Can. Com. J. 1874, public accounts, App. No. 9, p. 144. See debate in the legislative assembly, June 7tli, 185(3 [Globe). ^ Can. Com. J. 1880, App. No. 2, K. on ])rinting ; StMi. J. Ap]>. No. 1. * Can. Com. J. 1875, pul)lic accounts 4tli K., App. No. 2, p. 27 ; lb- 1878, jainting, 7th R., App. No. 'i; lb. 1882, i)ublic accounts, 2nd K., App. No. 1. 448 COMMITTEES. c-ommittees, to which, in the English Hoiise of Commons, the difU'i-cnt chissfs ol' private bills arcj always referred/ Tf thcri! is a division of opinion as to the report first submitted for consideration, another report may be pro- posed by way of amendment, and the sense of the com- mittee taken thereon." If a committee, btnng equally divided in opinion, finds itself unable to determine the matter reien-ed to it, it may send the matter back for the determination of the house.-^ The report of a committee-' is, of course, supposed to be prepared and drawn up by the committee or some of its members, and not by any other i)erson ; but whether it is so or not is entirely imma- terial, provided the report receives the sanction of the committee, and is presented by its order, and it is alone held responsible for it by the house.' Every report must be regularly signed by the chairman.' In regard to clerical form — a matter by no means unimportant — a report should be clearly and legibly written with ink and not in pencil, and without any material erasures or interlineations. If presented in a foul state, the house will order it to be re-committed or withdrawn, in order that it may be written out in a proper manner.'^ Until a committee report, it is irregular to refer to its proceedings in debate in the house. For instance, in the session of 1873, Mr. Huntington was proceeding to refer to certain papers and letters relative to an important mat- ter under the consideration of a select committee ; but the speaker decided in accordance with English precedents ' Can. Hans. (1SS3), 37 (Sir John ^lacdonald). '-' Sen. J. (1875), 220 ; Can. Com. J. 1877, public aceounti;, App. No. 2, pp. 6-30 ; Ih. 1878, i^ublic accounts, App. No. 1, pp. 48-50. •' 4 Hatsell, 192, n. * 22 E. Hans. (3), 712. ' Can. Com. J. (1878), App. 1 to 5. Sen. J. (1878), 271 ; App. 2so. 4, &c. * 17 E. Hans. (1), 1-10. Such a difficulty has never arisen in the Cana- dian houses, as the clerk of the connnittee 'v\rites out the report legibly. REPORTS. 449 that they could not be read in the house.' Neither can a committee report the evidence taken before a similar com- mittee in a previous session, except as a paper in the appendix, unless it receives authority from the house to consider it.' To place a committee in possession of all in- formation necessary for inquiry, the house will order that reports and papers of a previous session be referred to the committee.^ It is a breach of privilege to publish the proceedings of a committee before they are formally re- ported to the house.' If the evidence taken by a commit- tee has not been reported to the house, it may be ordered TO be laid before it.' As soon as the evidence is before the house it may be debated at length, but members will not be permitted to discuss the conduct or language of members on the committee, except so far as it appears on the record." It is not unusual for a select committee to report to the house certain papers which are necessary for the informa- tion of members on public questions. A member who wishes to obtain such information will take steps to have a motion proposed in the committee to lay the papers before the house." Whenever evidence is taken before a committee it should be reported in the shape of an appen- dix to the report.^ All reports of committees of the house appear in the appendices to the journals ; but if it is ' Can. Com. J. (1873), 349 (Pacific railway inquirj')- See 159 E. Hans. (3), 814 ; 223 Ih. 789, 793, 1134 ; 189 1 h. 604. ^ Can. Com. J. (1874), 282 (Agricultural Com.) Hero tho committee embodied in its report the substance of the information obtained in a previous session. ■• 107 E. Com. J. 177 ; 129 Ih. 129, 237. Son. J. (1878) 59. * Can. Hans. (1875), 8()4 ; Son. Deb. (1873), 01 ; mpra, p. 193. '" 105 E. Com. J. 037, &c. "Can. Hans. 1878, April 29th, debate on contracts. ' Can. Com. J. 1877, first and second Rep. of Public Account.s Com., App. No. 2. " Reports on salt interests and depression in trade, Apj). N«>s. 2 and 3, 1876 ; public accounts, App. No. 1, 1878. 29 450 COMMITTEES. wished to print them for distribution, the matter must bo brought ])('rore the committee on printing, and on its re- port it will 1)0 so ordered.' Sometimes the printing com- mittee will recommend the printing of the report alone, or of the report and part of the evidence.^ Though it is the practice, whenever necessary, to report the minutes of proceedings of the select committees of the House of Commons, it seems that the same usage does not obtain in the Senate. In the case of a bill respecting the G-rand Trunk Railway, reported in 1883 from the commit- tee on railways, canals and harbours, some of the mem- bers of the committee requested the chairman to submit the minutes of proceedings to the house. No such course, however, was taken, as there was no special motion made in the committee, and the chairman, on inquiry, found that it had been the practice of the sessional committees on private bills to report not their minutes of proceedings in full, but only the general results arrived at, though it was admitted a different practice prevailed with respect to divorce bills, and certain matters referred to select or special committees,'^ in which cases evidence was taken and facts brought out that it was advisable to lay before the house. The difficulty in the case in question appears to have been the absence of a motion regularly proposed and put in the committee. As clearly stated by one of the members at the time of the discussion in the Senate, if it was considered desirable on any occasion to depart from the general practice of the house, it could be done in two ways : First, by instruction to the committee from the Senate ; and secondly by the action of the committee 1 Can. Com. J. (1S7G), Com. on salt interests, 282, 296. - Agricultural Com. (1870), 296. The rejiort of the committee relative to Judge Loranger was omitted in the appendix of 1877 through a misappre- hension of the report of the printing committee, Jour. p. 1-11. In the session of 1869 a report relative to Judge Lafontaine was omitted on the report of the committee ; 1869, p. 272 and App. No. 5. 3 Sen. J. (1875), 219 (Palen contract) ; lb. (1878), 254 (Pacific R. E.) PRESENTATION OF REPORTS. 451 itself.^ The rules of the House of Lords provide for the report of minutes of proceediugs.- VII. Presentation of Reports.— AVheu a report of a select committee is ready to be submitted to the Senate, the chairman presents it from his place, and in case of bills being amended in committee " he is to explain to the Senate the effect of each amendment."'* It ^Yas formerly the practice for other members of the committee to stand up when the chairman presented his report ;^ but when the rules were revised in 18t6 the practice was discon- tinued. It is usual for the chairman to move, after he has presented his report, that it be taken into consideration on a future day,'^ on the orders of which it will accordingly appear.*' When the order is reached the report is con. sidered, and the report may be taken up paragraph by paragraph, if it contains several recommendations, and each separately concurred in, negatived, or amended/ Rule 80 of the House of Commons provides : " Reports from standing and select committees may be made by members standing in their places, without proceeding to the bar of the house." When the speaker has called for reports of committees, during the progTCss of routine business (R. 19), the chair- man, or, in his absence, a member of the committee, will rise in his place and having briefly stated the nature of the report will send it to the table, where it is read by one of the assistant clerks. If it is long, the house gene- rally dispenses with the reading, as all reports are printed 1 Sen. Hans. (1883), 474-82 (remarks of Senators Miller and Vidal). - Supra, p. 440. 3 R. 97. * No. 94 in rules of 18G7-8 ; Dob. (1874), 140-1. = Sen. J. (18G7-8),131 ; lb. (1878), 211 ; lb. (1S82), 45 ; Min. of P. (1882) Fob. 23rd. « Min. of P. (1867-8), 161. ' Sen. J. (1867-8), 93. 452 COMMITTEES. ill the votes and procecdiugs, or in other convenient form^ lor the information of members, as soon as they are laid before the house.' The reports shoukl be in English and French, like all other proceedings of the two houses.- A member will not be permitted, in presenting a report, to make any remarks on the subject-matter ; he can only properly do so on a motion in reference to the report.'' VIII. Concurrence in Eeports.— It is the practice to move con- currence in the rei:>orts of committees in certain cases. For instance the reports on printing are invariably agreed to, as they contain recommendations for the printing and distribution of documents, which must be duly authorized by the house.^ Also, reports containing certain opinion.^ or resolutions are frequently concurred in on motion.' But when the report does not contain any resolution or other propositions, for the consideration of the house, it does not appear that any further proceedings with refer- ence to it, as a report, are necessary. It remains in the possession and on the journals of the house as a basis or ground for such further proceedings, as may be proper or necessary. Every session, select committees make reports- of this description, containing a statement of the facts, or of the evidence on the subject of inquiry ; but as they do not contain any proposition which can be agreed to by the house, they are simply printed for the information of members.'' Many motions for concurrence in reports of select com- mittees are brought up without notice and allowed to pass ^ V. & P. 1877 and 1878. Reports on immigration and colonization. ^ This question was raised in the Senate in 1867-8, and the speaker de. cided that the reports should be in the two languages ; Sen. J. p. 224. •' Can. Hans. 1878, April 26, Public Accounts Rep. * Printing R., 1878 pp. Jour. 88, 226, 255, &c. '" Can. Com. J. [1869], 264 ; Ih. 1877 ; pubhc ace, secret service fund, yi]}. 256, 264. * Rep. of Com. on salt interests and financial depression in 1876 ; public accounts, coal trade, civil service in 1877. CONCUBREXCE IX REPORT. 453 by uuauimous consent.' But in all cases objection may be taken, and it is the regular course to give notice.- This is alwa3"s consequently done when there is an objection taken by one or more members to the adoption of a report, and a debate is likely to arise on its subject-matter.^ The reports of the committees relative to private bills are not concurred in as they are regulated by special standing- orders Sometimes, however, when one of these commit- tees has made a special recommendation requiring the authority of the house to give it effect, the concurrence of the house will be formally asked and given.' It is allow- able to move an amendment, to add words as a condition to a motion for concurrence in a report.' A report may be referred back to a committee for fur- ther consideration,'' or with instructions to amend the same in any respect." In this way a committee may regularly reconsider and even reverse a decision it had previously arrived at. As the rules of the house govern the procedure of committees generally, a committee cannot renew a ques- tion on which its judgment has been already expressed." Por instance, we recognise the operation of this rule in the ^ Can. Com. J. [1877] 59, 100, &c. lb. [1878] 88, 226, &c. - Can. Jour. [1880], 364. ^ V. & P. 1869; 6 Kep. of printin deter- mined in the Commons by the speaker), and also for travelling expenses, upon the certificate or order of the chairman of the committee ; ])ut no witness shall be so ' Com. on financial depression, 1876, App. No. 3, Can. Com. J. ; Com. on immiirration, 1878, App. No. 2, Can. Com. J. ^ Divorce trial, 1876, App. No. 1 ; Canadian Pacific 11. 11., App. Nn- 4 ; Fort Francis Lock Com., App. No. 5, 1878. ^ Lords' J., 25tli June, 1852 ; Com. S. O. xxxi. * May, 465. 12 K Hans. (1), 515 ; Cushinfr, pp. :M>l-2. ' Can. Com. J. (1877), 132, 141 ; Can. Ilan.s. (1S77) (iS5. Supra, p.. 200 «Sen. R. 99 ; Com. R. 81. 458 coMMirrEEs. summoned and paid unless a certificate shall have been iirst filed with the chairman of the committee by a mem- ber thereol' (or of the Senat(^), stating that the evidence of such witness is, in his opinion, material and important ; and no witness residing at the seat of government shall be paid for his attendance.' Under this rule it is the practice to pay witnesses their travelling and hotel expenses, but nothing is necessarily allowed for loss of time, even in the case of professional men. Printed forms are provided under the rule and certified by the clerk before payment is made by the accountant. No witness who comes as a witness at the solicitation of parties interested in a private bill is paid by the house. The rule only applies to those persons who ore present in cases of public inquiry. XI. Examination of Witnesses under Oath.— It is only within a very recent period that the House of Commons has enjoyed the right of administering oaths to witnesses. Indeed it was not until 1871 that an act was passed in the English Parliament" giving the same power to the Com- mons that had been exercised by the Lords for centuries. Prior to the confederation of the British North American provinces, the committees of neither branch of the Legis- lature had the power to examine witnesses on oath, several attempts to pass such a law having failed ; but in the session of 1867-8 an act was passed empowering the com- mittee on any private bill, in either house of Parliament, to examine witnesses upon oath, to be administered by the chairman or any member of the committee.^ The same act gave the power to the Senate of administering oaths to witnesses at the bar. ^ The ex[)ense..s of select committees, in some years, have been very large. By a return laid on the table in 1878 (Sess. P. 3-1), it appears the total expenses were in 1874 — $6,757 ; and in 1877 — S6,425. - Imp. Stat. 34 & 35 Vict. c. 83. » May, 481. * Todd's private bill practice, 68-9. * 31 Vict, c, 24, Dom. Stat. WITNESSES UNDER OATH. 459 111 18*73 a very important committee was appointed ta inquire into certain matters connected with the contem- plated construction of the Canada Pacific Railway ; and it was felt very desirable that all the witnesses should be examined on oath before that committee. The committee made a report representing that "in their opinion, it was^ advisable to introduce a bill into the house," giving the necessary authority ; and this course was subsequently followed.^ In the meantime the Commons instructed the committee to examine witnesses on oath, in view of the passage of the bill." Doubts were expressed in both houses as to the competency of the Canadian Parliament to pass such a bill at that time,'^ and these doubts were verified b}'^ subsecjuent events. The law ofiicers of the Crown in England, to whom the act of 1873 was referred, reported that it was ultra vires of the colonial legislature " as being contrary to the express terms of section 18 of the British North America Act, 1867, and that the Canadian Parliament could not vest in them- selves the power to administer oaths, that being a power which the House of Commons did not possess in 18G7, when the Imperial Act was passed.'" The act of 1873 was accordingly disallowed, and the doubts expressed by emi- nent Canadian authorities were fully verified.' In the same despatch, it was declared that the first section of the act of 1868, (chap. 24) which gave power to the Senate to examine witnesses on oath at their ])ar, was also beyond the 1 Can. Com. J. [1873], 166. Dom. Stat- 36 Vict. c. 1. Another bill on tlio same subject had teau previously introduced by Mr. Fournier, (subse- (juently minister of justice,) but it wan not proce^^ded uith. - Can. Com. J. [1873] 207. ]S"o witnefsses were examined for thereason.«i 'jiven farther on in the text. * Com. Deb. [1873], 88; Sen. Deb. p. 142. See Lord Dufforin's do.spat.li to the Colonial Secretary, Can. Com. J. 1873, Oct. .sess., p. 5. In this docu- ment the whole mattroposed grant." ^ In the old legislatures of Canada, previous to 1840, all applications for pecuniary assistance w^ere addressed directly to the house of assembly, and every governor, especially Lord Sydenham,- has given his testimony as to the injurious effects of the system. The Union Act of 1840 placed the initiation of money votes in the Crown, and this w^ise practice was always strictly followed, up to 186*7, when the new constitution came into force. By the 54th section of the British North America Act, 1867 — which is copied from the clause in the act of 1840' — it is expressly declared : " It shall not be lawful for the House of Commons to adopt or pass any vote, resolution, address, or bill for the appropriation oi" any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended by a message of the governor-general in the session in "which such vote, resolution, address, or bill is proposed."' The standing orders of the English Commons go still further than the foregoing provision, for they also exclude the reception of petitions for " any sum relating to public service." ^ » 3 Hatsell, 176, 182. '^ " One of the greatest advantages of the union will be that it will be pes- .sible to introduce a new system of legislation, and, above all, a restriction upon the initiation "of money votes." Scrope's Life of Lord Sydenham, p. 165. Also, remarks of Mr. Gladstone, ivfra, p. 465 n. Lord Durham's R., 109. •^ See mpra, p. 28. ■* Can. Hans. (1878), 2157; in this case tii(>. meaning of the section wa.s clearly explained by Mr. Speaker Anglin. » S. 0. 20th March, 1866 ; supra, p. 266. See also Mirror of T., 1857, Juno 15, p. 1888 ; 182 E. Hans. (3), 591-603, whore present S. O. of English house are fully discussed. 464 Sil'PI.Y AND WAYS AND MEANS. The constitutional provision which regulates the pro- cedure of the Canadian House of Commons in this respect applies not only to motions directly proposing a grant of pul)lic money, but also to those which involve such a grant. The Canadian Commons indeed observe the rule respecting such motions with very great strictness. A member who has not received the permission of the Crown has not been allow^ed to move the house into Committee on a resolution providing for the purchase and exportation by the government of certain depreciated silver coinage then in circulation.^ In 1871 it was pro- posed to go into committee on an address to the queen for a change in the Union Act so as to assign the debt of old Canada to the Dominion entirely, and to compensate Nova Scotia and New Brunswick in connection therewith ; the speaker decided that it was just as necessary to inter- pose the check of a message before adopting an address which may be followed by legislation imposing iDublic burthens, as in the case of a bill or motion within the direct control of the Canadian Parliament.- No cases can be found of any private member in the Canadian Commons receiving the authority of the Crown, through a minister, to propose a motion involving the expenditure of public money. No principle is better understood than the constitutional obligation that rests upon the executive government, of alone initiating measures imposing charges upon the public exchequer. On one occasion, in the English Commons, the consent of the Crown was given to certain formal resolutions pro- posed by a private member with reference to charges in courts of law to be defrayed out of the consolidated fund. It was thought, however, that any resolution placing a charge on the consolidated fund should be moved by a minister of the Crown, and should not proceed from the 1 Mr. Speaker Cockburn, 26th of May, 18G9. Can. Speakers' D. No. 15i>' - Ibid. No. 181, Can. Com. J. [1871], 50. See also Ih. pp. 62 and 72. RESOLurioxs IN comfirrEE of the whole. 4t3o opposition ; and llic more regular procedure was there- upon carried out. It was distinctly affirmed, however, that the member who proposed the motion involving the charge was within his right when he had the sanction of the Crown, but it was generally admitted at the same time that it was better, as a matter of policy, that the proposition should emanate from a responsible adviser of the sovereign/ Another check is imposed on the expenditure of public money by rule 88 of the Commons, which is as follows: '' If any motion be made in the lioiisc for any public aid or charge upon the people, the consideration and debate thereof may not be presently entered upon, but .shall ])e adjoui-ncd until such further day as the house shall think tit to appoint; and then it shall be referred to a committee of the Avhole house, before any resolution or vote of the house do pass tlicreon.'' - This is substantially the standing order of the English Commons — the only difference being that the latter is somewhat more definite since it adds the words, "or charge upon the public revenue, whether payable out of the con- solidated fund or out of moneys to be provided by Parlia- ment." ' Another rule of the English Commons (which dates back as far as 1^07) provides that "the house will not proceed upon any petition, motion, or bill for granting any money, or for releasing, or compounding any sum of money owing to the Crown, but in a committee of the whole house." ' • INIr. Gladstone said on tlio occasion of the adoption of the present En,iX- lish S. 0. in 18G0 : " In Canada before the present constitution was estab- lisliod, tlic proposals by private monibers to make grants of public nioney became so numerous and glaring tbat a remedy was necessary. Tli(>. remedy was to adojit this provision — tbat is to say, the {n-evious recnin- mendation of tlie Crown." 182 E. Hans. (3), 578. -' Can. Com. .1. and Hansard, 1878, April 24 (Mr. Si^iaker Anglin.) This rule Avas ado])tedin the Lower Canada As^s., liUh of April, 171 •:] ; Jour. p. 540. See IManitoba Kes., Can. Com. J. (1882), 251, 424. ••' S. O. 20th March, 1800 ; No. Ixxii. ■• S. 0. 29th March, 1707 ; No. Ixxi. 30 466 SUPPLY AND WA YS AND MEANS. Tho. foregoing rule ol" llic C;inaclian Commons in strictly observed ; ' l)nt it was said witli obvious force on one occasion ])y Mr. Speaker ('ockl^urn that "this rule, being self-imposed, may Ix; cni'orced or relaxed, as the house shall determine. But the constitutional provision, con- tained in the 54th section of the Imperial Act of Union, is oiie that, being absolutely binding, should be neither extended or restrained by implication, but should at all times be most carefully considered by the house." ^ As an illustration of the strictness with which the house observes the practice of rt^quiring much deliberation with respect to any matter affecting the public exchequer, it may be stated that on the 15th of April, 18t8, it went into committee of the whole on a resolution providing for the subscription of .£15,000 sterling of first mortgage bonds of the Northern Eailway of Canada at the rate of 90 per cent, in satisfaction of the sum of .£13,500, being the balance remaining due to Canada.'^ Orders in council respecting subsidies to railways, con- tracts and agreements between the government and com- panies or individuals for certain public services are frequently laid on the table for ratification in due form by the House of Commons.' When such orders and agree- mients are only made in pursuance of authority given to the government by Parliament, and are already provided for by appropriations sanctioned by Parliament, it is not necessary to go into committee on any resolution on the subject.^ On the 21st of March, 18Y9, numerous contracts for the construction of portions of the Canada Pacific Rail- way, then a government work, were laid on the table. No special motion was made with respect to these con- ^ Can. Com. J. (1876), 67, 83, &c. Ih. (1878), 271. -Can. Com. J. (1871), 62, 72. ■' lb. (1878), 170, 178. ' Ih. (1875), 219, Canada Central R.R. ; Ih. 350, Canada Pacific RR. ; Ih. (1878), 257-9, Moncton Gas Co. ; Ih. 202, 273, Canada Central E.R. ^ Can. Hans. (1880), 782. 165 E. Hans. (3), 1819-26. RESOLUTIONS IX COMMITTEE OF THE WHOLE. 4:61 tracts. The statute under which they were broug'ht down (37 Vict., c. 14, s. 11) simply required that they should lie on the table for thirty days ; if they were not moved against at the end of that time, they were considered to Iiave received the approval of the house.' In 18*73, the government was authorised to enter into negotiations during the recess with some reliable company for the transfer to the same of some of the dominion railways in Nova Scotia on certain conditions subject to the approval of Parliament at the next session. This resolution was adopted without previous reference to a •committee of the whole ; " but it is to be noted that the subject had been previously considered in the same ses- sion on a motion for the house to go into committee on a similar resolution.'^ In the session of 18*74, the house went into committee and adopted certain resolutions in accor- dance with the resolution of 1873 ; and a bill was sub- sequently introduced and passed.* Following the pre- cedent of 1873, Mr. Mackenzie, when premier, proposed in the session of 1878, that the house should adopt a resolu- tion authorising the government to enter into an arrange- ment with the G-rand Trunk Railway during the recess for acquiring control of the River du Loup branch of that road — any such arrangement to be subject to ratification by Parliament at the next session. The propriety of the procedure was called in question. It was said in reply that as the resolution was merely " tentative," it was not necessary to go into committee of the whole. But Sir ^ Can. Hans. (1879), 825. See mj^ra, pp. 409-10, as to laying contracts and agreements before the Senate. The practice of submitting contracts for the ratification of Parhament is new in this country, and in England, where it is now regulated by standing orders. I. Todd's Pari. Govt, in England, 296, 493; 194 E. Ilans^. 1287-89. - Can. Com. J. (1873), 430. 3 Ih. (1873), 224 ; Pari. Dob., 28th of April. Tlio first motion in 1S73 Imd not been proceeded with when it was underetood that the government would take the question up. ' Can. Com. J. [1874] 273, 299, 300. 408 SUPPLY AND M'AYS AXD MEANS. John Mardonald, Mr. Holton, and Mr. Blake pointed out the necessity of considering- with the fullest deliberation all propositions which may involve an appropriation of the i:)ublic moneys. The speaker took a similar vieWr though he was not called upon to give any decision, as Mr. Mackenzie did not press the matter in the face of the sentiment that prevailed in the house.' No doubt what- ever exists that it is the most convenient and correct practice to consider all such propositions in a committee of the whole, so that the house may not be surprised into- a hasty decision on the subject. A practice has grown up in the house of allowing t he- introduction of resolutions by j)rivate members, when they do not directly involve the expenditure of public money, but simply express an abstract opinion on a mat- ter which may necessitate a future gi'ant.' As this is a question not always understood, it may be explained that such resolutions, being framed in general terms, do not bind the house to future legislation on the subject, and are merely intended to point out to the government the importance and necessity of such expenditure.'^ By way of illustrating the form of such resolutions, the- following precedents are taken from the journals of the- English Commons : 1. " That it is ex^^edient her ^Majesty's G-overnment, or Parlia- ment, should take steps to inquire how best adequate open spaces in the vicinity of our increasing populous towns, as public works, and places of exercise and recreation, may be j)rovided and seciu-ed, and to encourage and direct eftbrts by private subscrip- tions, voluntary rates, or public grants, to carry out such objects."' 2. "That in the opinion of this house the Board of Trade, or department of the government, having the control and manage- ment of the moneys belonging to the mercantile, marine, and > Can. Hans. [1878] 2002-2005. ^ Can. Com. J., (1869), 236 ; Ih. (1874), 214 ; lb., (1876), 69 ; Can. Hans. (1877), 396. ^ 115 E. Com. J., 246. ABSTRACT PROPOSITIONS. 469 seamen's funds, should Ijc empowered by Parliament to give to these sailors' homes (not in the neiglibourhood of the dockyard) such i^ecuniary assistance as, in its judgment, and at its discretion, it may be deemed advisable." ^ 3. '' That having regard to the Admiralt}' Act of last session, by virtue of which an entirely new jurisdiction has been conferred upon cei-tain county courts, and to the Banki-uptcy Bill, under which the district county courts will take the place and perform the functions of the district bankruptcy courts, and with a view to secure efficiency in the office of county court judge, in the opinion of this house it is expedient that the judges upon whom the new duties and i-esponsibilities may be imposed, should receive an additional rcmunerationof £3,000 a year." - The last of the foregoing' motions shows to what extent such abstract propositions may go ; but it was perfectly in accordance with parliamentar}^ rules, since the fact of its adoption by the house would not have authorized an ■expenditure of public money, though it might have been considered a sufficient reason by the government for bringing down a resolution on the subject with the con- sent of the sovereign, and obtaining a vote of money in .accordance with the prescribed forms. Referring to this right of members to move such abstract resolutions, all authorities agree that it is one " which the house exercises, and should always exercise with very great reserve, and only under peculiar and exceptional circumstances." Such resolutions are considered virtually " an evasion of the rules of the house, and are on that account objectionable, iind should be discouraged as much as possible." ' Never- theless the English House of Commons has never agreed ^ 118 E. Com. J., 181. - 124 Ih., 289. " May, G55 ; 1 Todd's Pari. Govt, in England, 435 ; 170 E. Hans. (3), 677. It lias been ruled in the Canadian house that it is not regular to move to go into committee of the wliole on an abstract resolution. Mr. Frechette having proposed to takotliis course in 1S7S, in the case, of a motion on the winter navigation of the St. Lawrence, was allowed to amend it. V. vfc P. Feb. 2Gtii and INIarch 20th, 1878 ; Can. Hans. p. 1290. 4^0 SUPPLY AND WAYS AND MEANS. io the adoption of a rule to fetter its discretion in regard to the entertaining of such propositions. It may sometimes happen that the government is wil- ling to allow the reference of a matter which may sub- sequently involve a public expenditure to a select com- mittee of the House of Commons for the purpose of elicit- ing all the facts in the case. A motion, framed in general terms, may be proposed, without directly asserting that any grant of money is required — in other words, one of those abstract motions to which reference has just been made.^ Two precedents in point may be given : " In 1876, the papers relative to a claim of Mr. Ambrose Shea, in connection with the Intercolonial Railway, were laid on the table, and subsequently, with the consent of the premier, sent to a committee which decided that he had a just claim for compen- sation.'- In 18*75, a petition from Alexander Yuill, with respect to certain losses alleged to have been sustained by him in con- nection with a decision of the dominion arbitrators, was referred, with the consent of the government, to a select committee, which reported all the facts, and expressed the hope that redress would be granted to the petitioner." " In the foregoing, as in other cases, the government con- sented to the appointment of the committee. Just as an abstract resolution may be regularly proposed, so the report of a select committee which does not directly re- commend or involve a public expenditure may be received by the house. ^ n. Governor-General's Recommendation.— The recommenda- tion of the Crown to any resolution involving a payment out of the dominion treasury must be formally given by 1 See 1 Todd, 437 for cases in point ; 124 E. Hans. (3), 841 ; 174 Ih. 1460. 2 Can. Com. J. (1876), 12, 73, 98, 122. 3 Can. Com. J. (1875), 127, 226, 303. See 3 Hatsell, 243, on such cases. Also, speaker's decision (No. 189) that a claim for damages might be referred to a select committee ; Jour. (1871), 254. * 1 Todd, 430, n. ; 166 E. Hans. (3), 710 ; Can. Hans. (1877), 396. GOVERXOR-GENERAL'S RECOMMENDATION. 471 a privy councillor in his place at the very initiation of a proceeding, in accordance with the express terms of the 54th section of the British North America Act, 186Y, and in conformity with the invariable practice of the English House of Commons.^ The statement should be made as soon as the motion has been proposed for the house to go into committee on the resolution. The following is the entry made in the journals on such an occasion. " Sir John A. Mucdonald, a member of the queen's privy coun- cil, then acquainted the house, that his Excellency the Governor Greneral, having l)een informed of the subject-matter of this motion, recommends it to the consideration of the house. "-' The recommendation may be given by any minister of the Crown, according to English usage ; but in Canada it is usually done by the premier or leader of the government in the house. The English practice, and necessarily the most convenient one, is to give the necessar 5^ recommenda- tion through the minister directing the department in charge of the particular matter before the house.' Though the recommendation of the governor-general cannot be foi mally given in the Senate to amotion involv- ing money, — since such matters must originate in the Com- mons — yet that house has a standing order which forbids the passage of any bill which, from information received, has not received the constitutional recommendation. 47. "The Sciiiite will not ])i-oci'cm1 upon a liill a|i[)ropriatinii; • See Can. Hans., 24th of April, 1878, when Mr. Speaker Anglin fulh' explained the meaning of the 54th softiou of the union act. - Can. Com. J. (1873), 205 ; Ih. (1877), 93, !»4, 1G4, &(i ; lb. (1879), 51, 158, 252, 365, 3(j0, 415. In the journals of 1873 the governor-general's recom- mendation is signified to a resolution relative to customs duties in the North- West, through a misapprehension of the meaning of the section which refers only to the " appropriation of a tax or impost," and not to the "imposition" of the same. See a debate in the house (Can. Hans. [1878], 2155), when a learned lawyer, now a judge of a high court in the dominion, gravely argued that the recommendation should be given under the law to the imposition of taxes. • 129 E. Com. J. 14, 29, 30, 32, &c. 472 SI'J'J'LY AM) \VA YS AM) MICAXS. ])iiblic monc}', that .sliall iio(, witliin tlic knowledge of tlic Senate, have been recommended hy tlio queen's representative." III. Consent of the Crown explained. — A misappreheusioii has sometimes arisen as to the time when the " consent " of the Crown should l)t^ given to a bill. The procedure "with respect to signifying the consent is dill'erent from that in giving the recommendation of the Crown. The recommendation precedes every grant of money ; the consent may be given at any stage before final passage, and is always necessary in matters involving the rights of the Crown, its patronage, its property, or its preroga- tives.^ This consent of the Crown may be given either by a special message, or by a A^erbal intimation from a minister — the last being the usual procedure in such cases. The intimation of the consent does not mean that the Crown " gives its approbation to the substance of the measure, but merely that the sovereign consents to remove an obstacle to the progress of the bill, so that it may be considered by both houses, and ultimately submitted for the royal assent."' In any case where a private member wishes to obtain the consent of the Crown, he may ask the house to agree to an address for leave to proceed thereon, before the introduction of the bill.' The consent should be properly given before the committal of the bill,' but, according to the j^ractice of the English house, it is not generally given before the third reading.' A bill may be permitted to proceed to the very last stage without receiv- ing the royal assent, but when it is not given before the motion for the final passage, it must be dropped.*' If the introducer of a bill finds from statements of a minister that the royal assent will be withheld, he has no other alterna- 1 May, 508 ; 2 Todd, 298 ; 243 E. Hans. (3), 211. '' 191 E. Hans. 1445 ; 192 lb. 732 ; Established Church (Ireland) bill. ^ Mr. Gladstone, 191 E. Hans. (3), 1898-9. * Church Eoform (Ireland) bill; Mirror of P., (1833), pp. 1027, 1733. '=> Mr. Speaker Denison ; Peerage of Ireland bill, 191 E. Hans. (3) 1564. " Mr. Gaythorne Hardy ; 191 E. Hans. (3), 1504 ; May, 508. COXSEXT OF THE CliOU'X. 473 tive oj)en to him except to withdraw the measure.' If the royal assent is not given at the hist stage, the speaker will refuse to put the question.- If a bill, requiring the royal consent, should be permitted to pass all its stages through some inadvertence, attention will be called immediately to the " fact in the house, and the proceedings declared null and void."^ The consent of the governor-general, as representative of the Crown, is generally signiiied in the Canadian Com- mons on the motion for the second reading, though cases will be found of its having been given at other stages. The cases of most frecjueut occurrence in the Canadian house have been in connection with railways, on which the government has had a lien.' In 1871 a committee made a special report on a bill to auihorize the Northern Jiailway to make arrangements to lease, use and work the lines of other companies, that " as the government held a lien for a large amount upon the railway, their consent should be obtained to the consideration of this bill, before any further proceedings should be held thereon ;" and the necessary assent having been subsecjuently obtained, the measure became law in due form.'' In the session of 1870 a bill was introduced " to provide for the payment of the de- fendant's costs in certain actions at the suit of the Crown." The first section provided that the several courts and judges of the different provinces, having concurrent jurisdiction » 76 E. Hans. (3), 591 ; 191 IJ>., 1504, (Peerage of Ireland l)ill). - 121 E. Com. J. 423. ■' Eliyl improvement bill ; IMedina Kiver navigation bill, 107 K. Com. J., 157. Tiie jirocedure in such cases is to read the entry in the votes, and to move tliat the proceedings 1)6 null and void. * 31 Vict., c. 19. — " An act to amend Grand Trunk K. K. arrangements act (18G2 ), and for other purposes" — a measure involving ix)sti)onen)ent. of a debt due to the Crown. Objection was taken en the third Reading of the bill, and the consent then formally given; Jour. [1S()7-S], 01. Also, Great Western K-li. Co. bill, 1870, ]\ 137 , 33 Vict., c. 50. Grand Trunk Kit. Arrangements bill, 10th of April, 1873 ; 3(i Vict., c. 18. April 17, 1874 ; 37 Vict. c. 05. Northern K.R. bill, April 11, 1877; 40 Vict. c. 57. '" Can. Com. J. [1871] 135, 100 ; 34 Vict., c. 45. 474 SUI'J'LY AM) ]VA YS AND MEANS. with the dominion exchc^qucr court, " shall have power to award and tax costs in lavour of and against the Crown as well as against th(^ subject," in certain cases specified by- statute. The premier having stated that he was not pre- pared to give the consent of the Crown to the bill, the mover was compelled to withdraw it." IV. Committees of Supply and Ways and Means.— With these general observations on the rules and usages which con- trol the house in the case of grants of public money, we may now proceed to consider the practice with respect to the committees of supply and ways and means. The principal purpose of the House of Commons, in fact, is the consideration and criticism of the estimates and the taxes required to meet the public expenditures ;" and the com- mittees in question are the parliamentary machinery by means of which the house chiefly exercises its political and constitutional functions. In accordance with law and usage, the governor-general, acting under the advice of his responsible advisers, sends down every session one or more messages to the Commons with the estimates of the sums required for the public service.^ These estimates are considered in committee of supply, and include all the grants that have to be an- nually voted by parliament. The main estimates appear in a blue book and comprise, as far as possible, the j)i'o- posed expenditures for the public service for the next fiscal year which commences on the 1st July and ends on the 30th of June following. But, in addition to these, there is generally a supplementary estimate of sums still required to meet certain expenditures which properly fall within the current year ending on the 30th of June. It is also always necessary to bring down, before the close of the session, one or more supplementary estimates for the ' Can. Hans. (1879), 1578-1581. 2 237 E. Hans. (3), 380. « Can. Com. J. (1879), 77 ; lb. (1883), 14(), 299, etc. ESTIMATES. 475 coming year in order to provide for services which had been forgotten in the main estimates, or on which a decision had not been reached when the latter were made np.' All these estimates are divided into several hundred votes or resolutions, which appropriate specified sums for services specially defined. They are most carefully arranged under separate heads of expenditure, so as to give the fullest information possible upon all matters contained therein. The blue book is made up in several columns '^ one showing the amount, if any, votoyd during the previous year ; another, the amount to be voted for the next year, another (where necessary), the increase or decrease of expenditure for the same service. Each resolution specifies, when necessary, every item on which there is to be a par ticular expenditure. For instance, under the head of a vote for harbours for a province there will be a number of distinct items for each harbour for which money is required ^ "When the resolutions are under consideration in committee, it is the duty of each minister to explain every vote that appertains to his own department, and in this way the house is able to come to a correct conclusion as to its necessity. Besides the grants voted in the estimates there are certain payments which have not to be provided for an- nually, but are defrayed out of the consolidated fund' in conformity with A'arious statutes.' These payments com- prise : costs and charges incident to the collection and management of the revenue ; interest of the public- debt ; salaries of governor-general, lieutenant-governors, judges, ^ See Sess. P. for 1882, No. 2, for estimates for 1883 and supplementarj' estimates for 1881-82, c^c. ^ Se« IhhJ, p. ."il of estimates. ' The public revenues from taxes, imposts, loans, or other sources are placed to the account of the consolidated fund, out of ■which all payments are made by authority of law, either in the shajK*. of iiermanenl ^'rants regulated by statute or annual grants voted in supply. I. Tod. « 240 E. Hans. (3), 108(5. Also, 132 E. Com. .F. 119, 12(i. ' The following gentlemen have acted as cliairnieii ol' late years : — Mr. Stewart Cami:)ljell, jNIr. Scateherd, (now dead), Mr. Oliver, (alsodeatl). Mr. 31 482 srrj'LY AND ways and means. to oall to the (.hair a member who has had large experience in the house. The rules that obtain in other committees prevail also in this. Each resolution will be formally pro- posed from the chair, and amendments may be made thereto. Each member is provided with a printed copy of the estimates, and the chairman reads the vote at length from a written set of resolutions, each of which he signs Avhen it has been duly adopted by the committee. As in other committees each resolution must be proposed and discussed, as a distinct c^uestion, and when it has been formally carried, no reference can again be made thereto.' Neither is it regular to discuss any resolution before it has been formally proposed from the chair. ^ Each vote or resolution is necessarily a question in itself to be proposed, amended and put as any motion or bill in the house. Some- times there are a number of items in a vote or resolution, and then these may be generally discussed as forming part of a single c|uestion. Each item may then, if the committee think proper, be taken up as a distinct question, and so discussed and amended. The debate in such a case must be confined to the item, and when it has been disposed of no reference can again be made to it when the subsequent items are under consideration. "When it has been proposed to omit or reduce items in a vote, the question shall be afterwards put upon the original vote, or upon the reduced A^ote, as the case may be, without amendment. And after a question has been proposed from the chair for a reduc- tion of the whole vote no motion shall be made for omit- ting or reducing any item.' James Young, Mr. Kirkpatrick, Mr. Rykert, ]\Ir. Colby. The mode of electing the chairman of ways and means in the English Commons was explained by Mr. Eaikes before the committee on public business, 1878, p. 139. See for the latest case of the election of a chairman, who is also deputy-si^eaker, 276 E. Hans. (3), 1321 (Sir Arthur Otway). 1 175 E. Hans. (3), 1673. 2 May, 677. 3 Re«. of Eng. Com. 9th Feb., 1858, and April 28, 1868; 113 E. Com. J. 42 ; 123 lb. 145 ; 239 E. Hans. (3), 1763-1775. PROCEEDIXOS IX S UPFL Y. 483 It is irregular to discuss any matters in committee which a,re not relevant to the resolution under consideration.' It is also out of order to move for the adoption of a general resolution with respect to any particular vote, or for the reference of a particular vote to a select committee.- Some- times, when it is not convenient to discuss a resolution il is not proposed from the chair but passed over with general consent until another occasion f but if it has been regu- larly proposed from the chair and discussed, no motion for its postponement is regular, because there is no period to which it can be postponed/ But the mover of a resolution may, with the consent of the committee, withdraw and sul)- mit it again on another day, with or without alteration, and either as a distinct vote, or in separate items.'' The com- mittee haA^ing only partly considered a resolution may, however, rise and report that they had made progress in the matter to them referred, and ask leave to sit again.*^ Or they may reiDort certain resolutions which they have agreed to, and progress on certain others." Sometimes the house will go into committee and immediately rise and report progress without adopting a vote f but in no case must the committee be allowed to drop by neglecting to move for leave to sit again. The speaker will always put the cj[ues- tion, after report of the chairman, " When shall the com- mittee have leave to sit again ?"' It is for the minister of finance, when present, or other member of the government, in his absence, to fix the time." ■ 157 E. Hans. (3), 1851. - Mirror of P., 1831, p. 1826 ; Jb. 1831-2, p. 3472. But a scleot coramittw may be moved in the house subsequently to inquire into matters con- nected with a particular vote; 172 E. Hans. (3), 131. '■ Pacific R.R. votes, 1877, &c. * 159 E. Hans. (3), 549 ; 175, lb. 77. ^Mirror of P. 1830, p. 1498 ; lb. 1840, p. 2807. «128E. Com. J., 74&C. ' 129 E. Com. J., 91, 133 ; Can. Com. J., (1876), 238, 239. «129 E. Com. J., 261, 331 ; Can. Com. J. (1877), 324. '' See supra p. 477 /;. 484 SUPPLY AND WA YS AND MEANS. The committee ol' supply cannot increase a grant which has been recommended by a message from the governor- general.' It is also irregular to increase any item in a reso- lution." But any motion to reduce a grant, or to strike it out of the estimates altogether, will be always in order.' The advisability of increasing a grant may, as a matter of course, be discussed so as to inform the government as to> the sense of the house on a c[uestion.' The ministry alone can move in the matter, and another message will be brought down to increase the grant.'' VII. The Budget— It is now^ competent for the finance minister to move the house into a committee of ways and means, to consider resolutions respecting the tariif, with- out taking a preliminary vote in sux)ply, as both these committees are now formed at the commencement of the session, and there is no necessity whatever, under modern practice, to pass a vote first in supply in order to lay a foun- dation, as it were, for the committee of ways and means.'"' 1 148 E. Hans. (3), 392. •' 173 Ih. 1282. 3 131 E. Com. J. (1870), 51, 65, 249. * 1 Todd Pari. Govt, in England, 437, (Annuity to the Duke of "Welling- ton) ; 27 E. Hans. (3), 831. 5 Mirror of P., 1838, vol. vii., p. 5875. ^ It was the practice in the Canadian Commons until the session of 1883^ (Jour. 1880-81, pp. 212-13) to take a preliminary A-ote in committee of supply and to concur in the same, before moving the house into committee of ways and means. This was a relic of the old practice that was followed previous to 1874. It is quite obvious that it was a meaningless form Anth reference to the tariff. Under the old practice it was necessary to pass a vote in supply in the first place (compare May, ed. of 1883, p. 657, with ed. of 1868, p. 554) ; but in 1874 it was agreed to go into the two com- mittees in question without the preparatory motions so long peculiar to the English house. Consequently, there was nothing to prevent the com- mittee of ways and means taking up the tariif at any moment it was con- venient to the house. The old practice, in reality, applied only to the pa;^- sage of resolutions in ways and means, authorizing payment of supply out of consolidated revenue. In England it is the practice to go from day to day into ways and means, to vote sums of money to the extent of the THE BUDGET. 485 It is proper to make the speech on " the budget " on the motion for the house to go into committee of ways and means since it is there that taxes are increased, repealed, or otherwise amended ; but finance ministers have, at times, found it more coiiYenient to depart from this practice. In the session of 1867-8 Sir John Eose made a financial state- ment on the motion for the house to go into committee of supply ; and on a subsequent day he proposed to amend the tariff in committee of ways and means.' In 1869 he made a financial statement on the motion for the house to go into committee of ways and means.- In 18Y0 Sir Francis Hincks made his financial statement and developed the fiscal policy of the government in com- mittee of ways and means.'' In 18*74, Sir Richard Cart- "v\'"right took the same course when he proposed to amend the tariff.^ In 18Y7 he made his financial statement when supplies (granted for particular purposes, (May, 658). A similar course is IblloAved in the Canadian Louse at tlie close of the session Avhen supply is closed, [infra p. 49G]. But resolutions amending the tariff have no imme- diate connection with resolutions of supply. INIuch inconvenience arose from this practice of passing a preliminary vote, and the house was even ohliged more than once to take the very irregular course of adopting the report of the committee of supply on the same day the comniitteo sat {infra, p. 489), in its haste to get into ways and means, and have the budget before it. It is difficult to explain why it was considered neces- sary to pass a vote for a small amount — almost always the estimate for the governor-general's secretary's otiice — before the house was moved into ways and means. It was the rule to pass a vote first in supply pre- vious to 1874 ; but, when the house did go afterwards into ways and means, it did not proceed to arrange a tarifi", perhaps involving millions of dollars of duties, but simi^ly passed a resolution for a payment equal to the amount voted in supply ; (Jour. 1873, p. 111). Under these circum- stances the practice in question was tacitly abandoned, in imrt in 1SS2, and entirely in 1883. ' Pari. Deb., [1867-8], 76, 97. - lb. [1869], 33. It is the rule of the government to take possession of the telegraph lines as soon as the budget speech commence-s, and a change in the public taxation is proposed. Pari. Deb. (1874), 24. ■ Pari. Deb. (1870), 916 ; Jour. p. 168. ' Pari. Del). (1874), 24-8 ; Jour. p. 56. 486 SUPPLY AND WAYS AND MEANS. the order of the day lor ways and moans had been read.' In 18*78 no change in the tariff being proposed he made his statement on the motion for the house to go into committee of supply.- In 18Y9 vSir Leonard Tilley proposed a new tarifl' in ways and means, but in subsequent years, from 1880 to 1883, inclusive, he made his statement on the motion to go into that committee. It will be understood from these precedents that whenever changes are proposed in the tariff, the finance minister will make his statement in committee of ways and means, or, as is now more gene- rally done, on the motion that the house go into that com- mittee ; but that when no alterations are proposed in the fiscal policy of the government, as in 18to, 18Y6 and 18^8. the statement may be conveniently made on the motion for the house to go into committee of supply." It is always usual for a discussion to follow the budget speech ; and much latitude is permitted.^ VIJI. The Imposition of Taxes, and Ways and Means.— It is now a fixed principle of constitutional government that all propositions for the imposition of taxes should emanate from the ministry or should at least receive its indirect sanction.' In the session of 1871 Mr. Speaker Cockburn'' recommended to the house the adoption of the British practice in this particular, and the Commons have ever since acquiesced in its wisdom. As a consequence, no ' Can. Hans. (1S77), 123. 2 76. (1878), 427. * The practice in the Enghsli house with resjiect to the budget is also variable, May, 667. In 1875, 1876, 1877 and 1878 the chancellor of the exchequer made his eiaeech in committee of ways and means — changes n duties being proposed in all these cases — and this appears to be the more convenient jwactice, as it gives more latitude for discussion. * In 1878 Sir R. Cartwright (finance minister) si:»oke again after Sir C. Tupper, though strictly he had not the right, as he had moved only an order of the day. Can. Hans, Feb. 22, 1878. » 182 E. Hans. (3), 592 ; May, 674 ; 1 Todd, 444. « Can. Com. J. [1871], 112-113. IMPOSITION OF TAXES. 487 private member is now permitted to propose a dominion tax upon the people ; it must proceed from a minister of the Crown, or be in some other form dechired to be neces- sary for the public service. A motion or a bill of such a character should properly be introduced by a minister of the Crown. The following precedents will show the strictness with which the house now adheres to this practice : " In 1872 a member was not allowed to move the house into committee of the Avhole to consider certain i-esolutions imposing a duty on barley, oats, Indian corn and coal.^ A report from a select committee was not received in 1874 because it recom- mended the adoption of a new taritt' for British Columbia ; it Avas withdrawn and subsequently brought up in another form. A motion on a later day to concur in the report was not allowed on the ground that it asked for the enactment of a special tariff, which could only be done by the government and in a committee of the whole house."- If the government approve of any plan of taxation suggested by a private member it is the constitutional course for them to propose it themselves in the committee of ways and means. This was done in the English house some years ago in the case of a resolution to extend the probate duty upon j)roperty above the value of one mil- lion.'' If the government object that a motion imposing a tax is not required by the exigencies of the public ser- vice, the member offering it should at once withdraw it.' But all the authorities go to show that, when the gov- ernment have formally submitted to the house the ques- tion for the revision of customs and excise duties, it is com- petent for a member " to propose in committee to substitute ' Speak. D., Xo. 192, 3rd of May, 1872. See also, No. 1G2, 14th of June, 18G9, for a similar ruling. -Can. Com. J. [1874], 141, 210. •' 155 E. Hans. (3), 991 ; 114 E. Com. J. 348 ; 1 Todd, 452. * 73 E. Hans. (3), 1052-56. In this ca.se, it was proposed to go into com- mittee of the whole, wliicli was manifestly irregular, as was i)ointed out at the time. 488 SUPPLY AN/) WAYS AND ^fEAXS. another tax of equivalent amount for that proposed by min- isters, the necessity of new taxation to a giv<'n extent being dechired on behalf of the Crown.'" It is also competent for any member to propose another scheme of taxation for the same purpose as a substitute for the government plan." But it is not regular to propose a new and distinct tax, which is not a mere increase' or diminution of a duty upon an article already recommended by government for tax- ation.^ But any proposition for the repeal of a duty is always in order, and many cases will be found where a proposed duty has been struck out in committee. ' Though there is no rule to prevent private members moving abstract resolutions proposing changes in the scheme or distribution of taxation, or the imposition ol" new duties or the reduction of duties, " yet they have been uniformly resisted by the government in the Eng- lish House of Commons as inexj)edient and impolitic." " All proposals for the imposition of taxes belong peculiarly to the Crown, and custom, as well as sound policy, has long ago devolved upon ministers the duty of submitting such questions to the consideration of Parliament.'^ But nevertheless numerous instances will be found in Cana- dian, as well as English, practice, of committees having been appointed to consider questions of taxation, notwith- 1 May, 675 ; 108 E. Com. J. 187 ; 123 E. Hans. (3), 1248 ; also, 1 Todd, 451. -Mirror of P. [1836], 1963-4; Ih. [1840], 3042, vol. IS; 75 E. Hans. (3), 920. ^ 63 E. Hans. (3), 629, 708, 750, 753, 1364. * For instance, a member could not extend licenses to other manufac- turers besides brewers who alone Avere to ^take them out according to the government plan ; ]May, 675. Also, 77 E. Hans. (3), 637, 751 ; 75 lb. (3), 915. ^ 128 E. Hans. (3), 1129 ; 166 Jb. 1574, &c. « 1 Todd, 445 ; 88 E. Com. J. 336 ; 94 lb. 510 ; 102 lb. 580 ; 103 Jb. 886 ; 229 E. Hans. (3), 778. " Sir E. Peel, Mirror of P., 1830, vol. 7, p. 1032 ; also, March 26th, 1833 ; August 7, 1848 ; May 10th, 1849 ; May 10th, 1864. Also, 73 E. Hans. (3), 1052-56. REPORTS 489 standing the opposition of the government.' The whole question 261 lb. 474-6. " May, 681 ; 129 E. Com. J. 107 ; 137 E. Han.s. (3), 1039 ; Can. Com. J [1877], 51, i^c. ; lb. [1883], 220. 490 SVri'LY AM) WA YS AM) MEANS. received on tho same day on which it was considered in committee, withoiii any "urgency" having been shown, the house lias ordercid that this very irregular proceeding (as well as all the proceedings consequent thereon) he declared null and void, and the resolution in question reported on a future day.' In the Canadian house, how- ever, at the close of the session, this wise rule is not always observed." The resolutions from committees of supply and ways and means are read a first and second time, and agreed to, after the order of the day for reporting the same has been read at the table. The practice of the Canadian Commons with reference to amendment and debate, at this stage, was variable up to the session of 1877, when it was decided to adopt the English practice. The procedure on the report ot such resolutions is now as follow^s : The order of the day having been called and read, the speaker pro- poses the question — Shall these resolutions be read a first time ? This is a purely formal motion, and is never dis- cussed or amended. The speaker then proposes the next question — Shall these resolutions be read a second time ? ' The procedure at this stage with respect to amendment and debate, has been explained on more than one occasion by speakers of the English Commons. "When the question is put," said Mr. Speaker Denison, " it is open to any hou. member to make any general observations he may think necessary,"* but they should be "relevant to the subject- ^ 158 E. Hans. (3), 1107, 1208. Here Lord Palmerston showed the wisdom of the rule. Only in cases of ;j;reat urgency will this rule be departed from. Since the revolution, only one instance has occurred in England ; and that was, in 1797, on the occasion of the mutiny at the Nore. 52 E. Com. J. 552, 605. ^ Can. Com. J. (1882), 500-505. See infra, p. 497. •■'Can. Com. J., [1878] 249, c»tc., (supply); Jb., [1879], 193, (ways and means). In 1877 the question for the second reading was not regularly put, and an entry was made in the journals to guard against such irregu- larities in the future. Can. Hans. 1171 ; Jour. 97, 174, 224, 336. M74 E. Hans. (3), 1550-52. DEBATE ON REPORT. 491 matter." ' With respect to amendment, Mr. Speaker Brand said on a subsequent occasion : " The established rule of debate is that the observations of hon. members should be relevant to the question put from the chair. There is one exception to that rule, and that is, when a motion is made that this house resolve itself into committee of sup- ply ; upon that occasion irrelevance of debate — that is, debate not relevant to the subject-matter proposed to be discussed in committee — is allowed ; but I am not aware of irrelevant matter, generally speaking, being allowed upon any other occasion. No doubt considerable latitude of discussion has been allowed occasionally on the report of supply ; but I know of no instance where an irrelevant amendment has been allowed on the motion that resolu- tions adopted in committee of supply be read a second time." " If the house agree to read the resolutions a second time the clerk in the Canadian house will proceed to read each separately. The speaker puts the cpiestion for con- currence in each resolution, and both amendments and debate must be relevant to the same in accordance with English practice.' For instance, on the question for agree- ing to a resolution providing a sum of money for printing, in connection with the Queen's Colleges (Ireland), Mr. Parnell was proceeding to discuss the general subject, when he was interrupted by Mr. Speaker Brand and re- minded that " on the question of a vote for stationery, it was not competent for him to enter into a general discus- sion on the subject of those colleges." * ' 102 E. Ilaivs (3), 022 ; 200 lb., 1:507-8. -' 243 lb. 154!). ■' 174 lb., 1551. * 240 lb. 348. Also 231 lb., 749. For precedents of amendments and debate on reports of resolutions in Englisli Commons, see 12!) E. Com. .T. 264 (supply) ; 115. E. Ilans. (3), 1135, (ways and means) ; Mirror of Pari. v« li. xiv., p. 4722 (supply) ; 144 E. Hans. (3), 2151 (supply). In the last ca-se mentioned, Mr. Gladstone moved, on the second reading of resolutions for supply, (navy estimates), an amendment looking to the reduction of tho public oxjxjnditures. 492 ,S777V. )■ AND \VA VS AM) MEANS. Resolutions reported from committees of supply or ways aud means are frequently postponed after they have been i-cad a second time.' Or, on the reading of the order for the reception of the report, it may be referred back to committee for the purpose of making certain amendments.- Or the resolutions, as in 18Y9 — when the whole tariff was revised — may be all sent back to committee after the second reading.'' Any resolution may be withdrawn on the second reading.' Any resolution from supply may be reduced after report without going back into committee,' though it is some- times convenient to do so for that purpose." When reso- lutions are reported, members are restricted to one speech on each question.^ It is not allowable at this stage — more than at any other — to increase or alter the destination of a grant of money, recommended by the governor-general." But it is always in order to propose an amendment stating the con- ditions under which the house makes a grant of money.' It is also quite regular at this stage to move an amend- ment to an amendment to a resolution.'" In case it is proposed to increase a grant, it can only be done with the recommendation of the Crown, and in 1 Can. Com. .J., [1874], 170; Jh., [1877], 297 ; 119 E. Com. J. 324; 129 lb. 197; 131/6.60; 132 //j. 360. - Can. Com. .J., (1874), 144. 113 E. Com. J. 211. - Can. Com. J., [1879], 201. ' lb. (1867-8), 94 ; lb. (1879), 411. In tiie English house it is usual " to disagree" with aresokition not to be proceeded with ; 129 E. Com. J., 100. » 129 E. Com. J., 164 ; Can. Com. J., (1873), 374 ; lb. (1878), 24. "Can. Com. J., [1873], 356, 372; lb. (1878), 249. ' Unless, as is sometimes done, it is agreed to allow the same latitude ^s in committee, for the convenience of the house. Can.jHans. 1878, May 2. " Mennonite grant ; Can. Com. J. (1875), 140. Can. Sp. D., No. 160, 10th of June, 1869; No. 176, 6th of May, 1870. 148 E. Hans. (3), 392 ; 170 lb. 1884. ^ Mennonite loan, 1875 ; Can. Pacific K. R., 1876 ; 78 E. Com. J. 443. '" Can. Com. J. (1875), 141 ; lb. (1877), 105. INCREASE OF A VOTE. 493 committee of supply.^ The resolution is recommitted and the committee will report that a further sum has been voted in addition to that previously granted. But unless the government signify the recommendation of the gov- ernor-general, the committee cannot increase a grant." In the session of 1883, when a report of the committee of supply was under consideration, it was pointed out that a resolution of $8,000 for the purchase of certain property required for government purposes did not represent the actual expense that would be incurred, but that the vote should be for $11,000. It was suggested that the premier give the recommendation of the Crown and increase the vote before the adoption of this particular item of the report. On consideration, however, it was seen that such a proceeding at that stage was irregular, and the leader of the government stated he would bring down a sup- plementary vote for $3,000." A precedent from English practice will show what is- the correct proceeding when it is necessary to increase a grant after report. In 1858, a vote of =£15,118 for the general register house at Edinburgh Avas reduced by c£l,000 in committee of supply. The sense of the hou.se. however, on further consideration of the matter, being" opposed to the reduction, it was agi'eed on the report of the committee to recommit the reduced vote. Subse- quently the vote was formally increased by the addition of =£1,000, and reported to the house.^ Here, it will be seen that the grant was not increased beyond the sum origin- ally recommended by the Crown. In the case which occurred in the Canadian Commons, the committee could not have increased the vote, had it Ix'cn recommitted, until a message was received authorizing the additional ' 3 Hatsell, 179. '' Can. Sp. Dec, No. 199 ; 11th June, 1872. •' Author's notes. Can. Hans. (J 883), 1310-17. ' 113 Com. J. 211, 314, 320 ; 150 E. Hans. (3), 1502, 1585. 494 SUPPLY AND ]VAyS AND ^fI':ANS. sum required.' TIk^ most reg-ular and couveuieiit pro- cedure under all the circumstances was that finally pro- posed by the premier. On the same principle any increase in the imposts should be made in committee of ways and means.^ But it must be remembered that it is always regular to propose an amendment on the report from the committee either for the repeal or reduction of proposed duties, even when those duties are actually reduced below what they had been previously.' Neither is it necessary to go back into committee to strike off certain articles from the free list, provided the duty is left as payable under the existing law.^ But every new duty must be voted in committee : " So strictly is the rule enforced which requires every new duty to be voted in committee, that even where the object of a bill is to reduce duties, and the aggregate amount of duties will, in fact, be reduced, yet if any new duty, how- ever small, be imposed, or any existing duty be increased in the proposed scale of duties, such new or increased duty must be voted in committee either before or after the intro- duction of the bill."' It is the ordinary practice in the Canadian house to propose to go back into committee when an amendment is moved, after report, for the reduction or repeal of duties." In fact, it is considered the more convenient course to con- sider all changes in the tariff in committee of ways and means.^ ^ Supra, p. 484. 2 Supra, p. 488, 155 E. Hans. (3), 991 ; 3 Hatsell, 167 ; 124 E. Com. J. 203. ^ May, 685-7 ; 101 E. Com. J. 323, 335, 349. In 1880 the house weirt back hi to committee (Jour. p. 212) to add certain goods to the free list — an altogether superfluous proceeding, arising from a misconception of the functions and meaning of a committee of the wliole. ' Can. Com. J. (1882), 469, 470 ; item 3, boolcs, charts, &c. See May, 685. ^ 3Iay, 687 ; 109 E. Com. J. 330. « Can. Com. J. (1867-8), 92 ; lb. (1874), 241, &c. ' Can. Com. J. (1874), 144. BILLS OF TAXATIOX. 495 When there are a large number of items in a resolu- tion reported from committee of ways and means — as was particularly the case in the tariff of 1879 — it is most convenient to take up each item separately and discuss it as a distinct question, to be agreed to, amended, or nega- tived.* "When the debate on a resolution cannot be ter- minated at a sitting, it is necessary to postpone the con- sideration of the remaining items before the adjournment of the house is moved." It is the practice in the Canadian House of Commons to give operation immediately to the resolutions embody- ing customs and excise changes, by agreeing to a resolu- tion to that effect in committee of the whole." Accordingly the new taxes are to be collected from the date mentioned in the resolution ; but in case the tariff is changed or fails to become law, then the duties " levied by anticipation" must be repaid to the parties from whom they had been collected.* X. Tax Bills.— "When the resolutions amending the tariff, or imposing any charges upon the people, have been agreed to by the house, they are embodied in one or more bills which should pass through the same stages as other bills.^ Eesolutions against the principle of such bills may be proposed at the different stages.'' It is also regular to m.ove amendments in the committee on the bill, for the repeal or reduction or modification of any charge or duty 1 Can. Com. J., (1879), 2r)0-7 ; 271-6, &c. - Ih. (1879), 270. •* Can. Com. J. (1874), 59, 14G ; Ih. (1879), 108. Somotimos certain alterations are deferred until a later date, and, if so, tlio resolution must expressly state it ; Ih. [1883], 236. In the English house the executive government, on their own responsibility, give immediate etiect to the resolutions as soon as they are reported and agreed to by the house. I. Todd, 413. ' 1 Todd, 513-4 ; 99 E. Hans. (3), 1316 ; 15(> Ih. 1274 ; 160 Ih. 1827. ^ Can. Com. J. (1867-8) 93-94, 266 ; Ih. (1877), 226, ^c '• lb. (1870), 298, 299. 496 SUPPLY AND WAYS AND MEANS. upon tho people' AVhcii such amendmeuts are necessarr, after the ])ill has come up from committee, it is always proposed to g'o back into committee to make the contem- plated changes.' But, it must be always borne in mind that any duty or increase of duty, must be previously voted in committee of ways and means, and then referr(-d with instructions to the committee on the bill.' As the resolutions on which the bill is based are always dis- cussed at great length, the members opposed to its policy are seldom disposed to raise further debate during its pas- sage, though they may think proper at times to express dissent and even divide the house on the question.' The committee of the whole is frequently dispensed with in the case of customs or tariff bills when they have been exhaustively discussed on the resolution,'' and it is not necessary to make any alteration in the bills themselves. In the sessions of 1882 and 1883 the bill was committed, as it was necessary to make some immaterial amend- ments.'' XI. The Appropriation or Supply Bill.— When all the esti- mates have passed through committee of supply,^ the finance minister will move to go again into committee of ways and means for the purpose of considering the usual formal resolutions for granting certain sums out of the consolidated revenue fund of Canada " towards making" good the supply granted to her Majesty." ^^ These resolu- ' May, 687-8 ; 108 E. Com. J. 640 (committee on customs' acts). 2 Can. Com. J. [1867-8], 403, 41.5 ; lb. [1874], 241. • ' Supra, p. 494, 155 E. Hans. 991 ; 132 E. Com. J. 112 ; 137 lb. 365-6, WAYS AM) MEA^'S. onlirely at variance with the wise priiicipl(! — a priiitiplc only to bo relaxed in cases of grave public; necessity — which requires the resolutions to be reported, and the different stages of the bill to be taken on different days.' No instance can be found in the English journals of two stages of a money bill being taken at the same sitting.- Only two instances have occurred since 186Y in the Cana- dian house of an objection having been formally taken to immediate concurrence in the resolutions on which the supply bill is founded. One happened in 1877, and both speaker and house acquiesced in the force of the objection, as the motion for receiving the report of the committee was not pressed. Subsequently, however, during the same sitting, the member who had interposed withdrew his objection, and it was agreed nem. con. to allow the resolutions to be reported and the bill to be introduced and passed forthwith.' Again, in 1879, Mr. Holtou ob- jected to concurrence in the report, and it was accordingly held over until next day.^ It is now becoming unusual in the Commons to raise a debate or propose amendments at different stages of a supply bill, though it is perfectly regular to take that course. Many illustrations will be found in the English as well as in the Canadian Parliament of the length to which a debate may proceed on a bill of this character. It has been ruled frequently in the English Commons that amendments on the different stages of the appropriation bill are governed by the same rule as is applicable to other 1 131 E. Com. J. 62, 65, 67, 74, 76, 79, &c; 239 E. Haus. (3), 1419. - Mr. Speaker Brand, 239 E. Hans. (3), 1419. ' Author's notes. No mention of the fact, strange to say, is made in the Canadian Hansard. * Can. Hans. (1S79), 2001-3. The haste with which motions, involving pubUc exi)enditures are constantly passed through the Canadian house of Commons, particularly at the end of the session, has been frequently de- precated by i)rominent members. Mr. Holton, 6tli of May, 1S79, p. 1799 Hansard. A}{EyDMEXTS TO SUPPLY BILL. 499 bills. For iustauce, when a member was attemptiuo- to speak of the coustitutioii of the couutry, he was at once in- termpted by the speaker/ An amendment must be applicable to the bill or some part of it, and discussion thereon should not be allowed the same latitude as on the motion for going into com- mittees of supply and ways and means.- This rule, how- ever, does not "preclude a member from bringino- a ■question of foreign or domestic i^olicy before the house upon any stage of the bill, if it be a cjuestiou that arises out of any of the votes thereby appropriated"" Much latitude, however, has alwa5^s been allowed in the Canadian Par- liament. In the sessions of 1868 and 1869 members of the opposition reviewed the events of the session at con- siderable length and a debate followed on the motion for the third reading of the bill. In 1870 Mr. Mackenzie, then leading the opposition, refrained from making any remarks during the passage of the bill on account of the illness of the premier Sir John Macdonald.^ Since then the old practice of raising discussions on the bill has only been followed at rare intervals. In 1879, a discussion of several hours took place on the Letellier affair, which had been referred to England.' In a previous part of this work," reference has been made to a practice, which cannot be justified, of tacking to a bill of supply certain enactments to which the members of the upper house might have strong objection, but which they would feel compelled to pass rather than take upon themselves the responsibility of rejecting a money bill, 1 231 E. Hans. (3), 11G2. - 211 E. Hans. (3), 1555; 231 lb. lllS, 1158-02 ; 205 lb. 735-0. Can. Sp. D., No. 77. ^ 1 Todd, 529 ; 143 E. Hans. (3), 043; 170 lb. 1859; 250 lb. 907, 1232. * Can. Pari. Deb. May 11, 1870. Amendincnts were proposed at difloront stages ; pp. 1568-9. ^ Can. Hans. (1879), 2011-2035. * Chapter xiv., s. 6 500 SUPPLY AND WAYS AND MEANS. and causiii"' thereby gTav<^ inconvenience if not xDOsitive- injury to the public service. No attempt has ever been made since th(^ establishment of responsible government in Canada to renew a practice which was more than once attempted during the conflict between the assemblies and legislative councils. When recently it was proposed to move in the English Commons to instruct the committee on the appropriation bill to add to that bill a provision al- together foreign to its subject-matter, Mr. Speaker Brand said : " If such an instruction were moved, I should not consider it my duty to decline to i)ut it fj'om the chair; but I am bound to say that such a motion would be in the nature of a tack to a mone}' bill. I can say positively that no such proceeding has taken place in this house for a period of one hundred and fifty years. The House of Lords has always respected the rights and privileges of this house, and has abstained from amending money bills. So in like manner, has this house abstained from sending up money bills containing anything in the nature of a tack to a money bill."^ Xn. Supply Bill ill the Senate.— The supply bill is sent up im- mediately after its passage in the Commons to the upper house, where it receives its first reading at once. The bill is generally passed through its several stages on the same day, and is never considered in committee of the whole.^ It is usual, however, sometimes to discuss the various questions arising out of the bill at considerable length.' The House of Commons alone has the right to initiate measures for the imposition of taxes and the expenditure of public money. The o3rd section of the British North 1 256 E. Hans. (3) 1058-9, 1209-10. ■' Sen. J. (1878), 293 ; lb. (1879), 293, lb. (1883), 292 (all its stages on same day). In the Lords more time is given for consideration of the bill, and the question is always put whether the bill shall be committed, and re- solved in the negative. Lords J. (1877), 401, 405. ^ Sen. Deb. (1874), 359; lb. (1875), 750 ; lb. (1877), 487 ; lb. (1878), 983. SUPPLY BILL IX THE SENATE. 501 America Act, 1867, enacts that " hills for appropriating any part of the i^ublic revenue, or for imposing' any tax or impost, shall originate in the House of Commons." ' In the speech with which the governor-general opens and closes every session of Parliament, he recognizes the constitutional privileges of the House of Commons with respect to the estimates and supply ; for he addresses its members only with respect to those matters." The supply bill can only be presented for the assent of the sovereign by the speaker of the House of Commons, and it will be seen by reference to another page that the address which he makes on such an occasion, like the preamble of the English appropriation act, is an emphatic assertion of the sole right of the Commons to vote the money, and that the governor-general, in her Majesty's name, gives, in the form of his answer, a recognition of this claim.' The Canadian Commons have resolved, and placed the resolution among their standing orders, that " all aids and supplies granted to her Majesty by the Parliament of Canada are the sole gift of the House of Commons '" — a resolution taken from that passed by their English pro- totype more than two centuries ago.^ The constitutional privileges of the Commons in this particular are now tacitly acknowledged by the Senate never attempting to amend the supply bill. If any alter- ation is now made in a money or taxation bill in the House of Lords, it is only of a verbal and unimportant character ; but CA^en such an alteration is of very unusual occurrence, and so jealous are the Commons of even an appearance of an infringement of their privileges, that they will make a special entry of their reasons for accept- ' The same section is found in the X'nion Act, 1S40. - Sen. J. (1879), 298 ; 132 E. Com. J., 441. ■' Ivjra, s. xiii. * Chapter xviii., s. ii. 502 SUPPLY AND WAYS AND MEANS. ing such amendmout.s.' The supply bill when it comes back from the Senate bears the endorsement common to other bills " Passed by the Senate without amendment ;"- and the propriety of such an endorsation has even been questioned in the Commons ; but it is always considered a matter of form and is not noticed in the Commons' journals. Though the upper house may not amend a supply bill, yet all the authorities go to show that theoretically it has the constitutional right to reject it in its entirety ; but such a right will never be exercised by a legislative body, not immediately responsible to the people, except under circumstances of grave piiblic necessity.^ Either the direct or indirect concurrence of the upper house in every grant of money is constitutionally requisite/ When the Crown sends down a special message to the Commons asking that provision be made for some matter not in- cluded in the estimates, it is usual to forward a similar message to the Senate.' It is " a well understood principle that the consent of the Lords is indispensable to ever}' legislative measure, whether of supply or otherwise," and it is desirable that they should have a full opportunity given them of considering the policy of all public expen- diture and taxation, after it has been initiated and passed in the Commons." 1 112 E. Com. J. 393 ; 122 lb. 426. See chapter on public bills- 2 Sen. J., [1879], 293. •■' Blackstone's C, 169. DeLolme, book 1, c. 4. Cox on British Institu- tions, pp. 188-9 ; 1 Todd, 459 ; see svpra, p. 407, for a recent case of a supply bill rejected by the legislative council of the province of Quebec. * See despatch of Earl of Bathurst, Aug. 31, 1817. Low. Can. Ass. Jour. II. Garneau, 334. ^Sen. J. (1867-S),212, 214 ; Can. Com. J. 187, 201 ; relief to the family of T. D'Arcy McGee, foully assassinated during the session of Parliament. Grant to Sir Garnet Wolseley, 1874, 218 E. Hans. (3), 622, 709. ^ 1 Todd, 433-4. In 1879 resolutions setting forth the policy of the do- minion government with respect to the Canada Pacific E.R. were intro- duced and passed in both houses. Sen. J. (1879), 270 ; Com. J. 418. ROYAL ASSEXT TO SUPPLY BLLL. 503 Xin. Royal Assent to the Bill.— The supply bill is always returned to the House of Commons,' and is taken up to the Senate chamber by the speaker, when his Excellency the Governor-G-eneral has summoned the Commons for the purpose of proroguing Parliament. When all the bills passed by both houses have been formally assented to, or reserved for the signification of her Majesty's pleasure thereon, Mr. Speaker will present the supply bill with the usual speech. " May it please your Excellency : The Commons of Canada have voted the supplies required to enable the government to defray the expenses of the public service. In the name of the Commons, I present to your Excellency a bill intituled," etc.- The clerk of the Senate will then proceed to the bar, and receive from the speaker the supply bill, with which he will return to the table ; and the clerk of the crown in chancery will then read the title of the bill in the two languages. This done, the clerk of the Senate signifies the royal assent in the following words : " In her Majesty's name his Excellency the Governor-General thanks her loyal subjects, accepts their benevolence, and assents to this bill." ^ ^ It is privately returned to the clerk, who hands it to the speaker. Se« :iHatsell, l(il-2.' - In accordance with an ol WAYS AM) MEANS. XIV. Address to the Crown for a certain Expenditure, &c.— It has happened ou a few occasions in the English House of Commons when the estimates have all gone through the committee of supply, and when in consequence of the lateness of the session or for some other reason, it is not convenient to make a grant therein, the House of Com- mons will agree to an address to the sovereign for a certain expenditure of public money, with an assurance that " this house will make good the same." This practice has been followed only on one occasion in the Canadian Parliament since 1867 ; and that was at the close of the session of 1873^ when the death of Sir G-eorge Etienne Cartier was announc- ed. Sir John Macdonald, then premier, moved an address to the governor-general praying that '" he would be gra- ciously ];)leased to give directions that the remains of the deceased statesman be interred at the public expense," and assuring his Excellency that " this house will make good the expenses attending the same."' The course pursued on that occasion was in accordance with the precedents in the cases of Lord Chatham in 1778, and of Mr. Pitt in 1806, to whom monuments were voted by Parliament." But since that time the House of Commons has adopted a standing- order requiring that all such addresses should originate in committee f and as the Canadian rule is, in all unprovided cases to follow English usage, the address for a public funeral to Sir G-eorge Cartier should obviously have been in conformity with the later English practice, and should have originated in committee of the whole.^ The right of a private member in the English Commons • Can. Com. J. [1873, first session], 430. - 36 E. Com. J. ;[1778], 972 ; 61 Ih. (1806), 15. Also, Lord Nelson ; 61 E. Com. J. 16. Sir R. Peel, 1850 ; 105 E. Com. J. 512. Yis. Palmerston, 1866; 121 E. Com, J. 100. ^ May, 691. Vis. Palmerston, 1866 ; 121 E. Com. J. 100. See S. O., Ixxiv. * So i^articular is the English house in adhering to this practice that when an irregularity has been discovered, the order for an address has been discharged and jiroceedings commenced dc noro in a regular manner. ADDRESS TO THE CROWX. 505 to move an address to the Crown I'or a grant of public money to be provided by Parliament — such address as we have just seen, to originate in committee — appears to be admitted by all the English authorities. The form of the motion " that this house will make good the same." makes the royal recommc^ndation unnecessary.' When the House of Commons amended their standing orders, as they appear now, the chancellor of the exchequer recognised the right of any membei' to move an address — " the ancient and trul}^ constitutional method of expressing the desire of the house, that some public expenditure should be incurred." The effect of such a motion is not ultimately to bind the house, but to throw on the Crown the responsibility of accepting or declining that address." It must be remembered, however, that the express lan- guage of the 54th section of the B. N. A. Act, 18G7, for- bids any private member in the Canadian Commons 1o move for an address for a grant of public money, without a recommendation of the Crown.' It is still necessary, however, to insert the words, " that the house will make good the same," because the grant so authorizi^d upon an address, must afterwards be included in a regular l)ill of ap]iropriation. XV. Audit of Appropriation Accounts.— For the more complete examination of the public accounts and the reporting thereon to the house, there is an officer, appointed under the great seal, called the auditor-general, who holds officii See address for a statue to Vi.scount Gougli, May, 6!12. 125 E. Com. J. nr>.5, :',()2, 368. Also i»8 E. Com. J. 821 ; 10(5 Ih. ISi). ' 1 Todd, 436, n. ; 437, n. and 438-444. Also 221 E. Hans. (3), 766, wlieiv. a member moved, on motion for going into sujiply, liiat the house go into committee of the whole on a future day to consider tlu'. granting of a pension, and to assure her Majesty that the house would make good the same. - 1S2 E. Hans. (3), 598. lUil this right slidiiid (Hily \h\ exercised under peculiar and exce[)ti(inal cinuni.stanci's ; I h. 7i\y.\, Mr. ( Hadstonc. ' Suj)ro, p. 463. 50G SUPPLY AND WA YS A XI) MEANS. (luriug good bohavionr, but is romovablo by the governor- general, on address of the Senate and House of Commons.' When any sums have been voted by Parliament for speci- lied public purposes, the governor, from time to time, issues his warrant, authorizing the minister of finance to issue such sums as may be required to defray those expenses. The minister of finance will then, on the application of the auditor-general, cause credits to be opened in favour of the several departments or services charged with the expendi- ture of the moneys so authorized. These credits are issued on certain banks, authorized to receiA'e public funds, and the law provides a thorough system of checks over all payments for public purposes. No credit can issue in favour of any deprirtment or service in excess of any vote sanc- tioned in the supply bill or any act of parliament. It is the duty of the auditor-general to see that no cheque goes out unless there is a parliamentary appropriation for the same. He is to certify, and report upon, the issues made from the consolidated revenue fund in the financial year ending the 30th of June preceding, for the interest and management of the public funded and unfunded debt, and all other expenditures for services under control of the minister of finance. He certifies as to the authority under which these issues are made, and his report thereon is laid before the House of Commons by the minister of finance on or before the 31st January, if Parliament be then sitting ;- if not, then within one week after the houses have assembled.' The accounts of the appropriation of the several grants t'omprised in the appropriation, or any other act for the year ending the 30th of June preceding, are prepared by the several departments and transmitted for examination to the auditor-general, and to the deputy of the minister ' 41 Vict. c. 7. A summary of some of the more important provisions- of this act follows in the text. - Can. Com. J. (1880-81), 40. Parliament met on the !)th of Decemher, and the report was presented on the 14tli of tlie same month. •■• lb. (1883), 28. A UDIT OF APPROPRIA TION A CCO UXTS. 507 of finance, and when certified and reported npon, they are laid before the House of Commons. These accounts are carefully examined by the auditor, who, in his report to the house, calls attention to every case in which cheques have been issued without his certificate, or in which it appears to him that a grant has been exceeded, or that money received by a department from other sources than the grants for the year to which the accounts relates has not been applied or accounted for according to the direc- tions of Parliament, or that a sum charged against a grant is not supported by proof of payment, or that a payment so charged did not occur within the period of the account, or was for any other reason not properly chargeable against the grant. The act provides that if the minister of finance does not, within the time prescribed in the statute, present to the house the report of the auditor on these or other account.s, the latter shall immediately transmit it himself to the Commons. All balances of appropriation Avhich remain unexpended at the end of the financial year lapse and are written off", but the time for closing these accounts may be continued for three months from the 30th of June, provided there is sufficient cause shown for doing so in an appli- cation to the governor in council. In case the money cannot be expended before the 1st of October, and it lapses accordingly under the law, a memorial may be addressed to the governor in council, setting forth the facts, and if it is found expedient to authorize the payment of the money, a wan-ant is issued in due form. Special warrants may issue, in any case, when any expenditure not foreseen or provided for by Parliament is urgently and immediately required for the public good ; and a statement of all such warrants is laid before the house, not later than the third day of the next session.' As a rule, all grants, not expended within the financial year, and still required for the public service, are re-voted, in whole or in part, in the estimates ' Can. Com. J. (1S83), 47 ; 41 Vict. c. 7, s. 32, sub. s. 4. 508 SUri'LY AND ll'J )',S' AM) MEANS. when they ari^ brought down in the Ibllowing- year — the printed copies ol" the estimates having a column, when necessary, to indicate the amount oi" this re-vote.^ A detailed statement of all unforseen expenditures, made under order of council, is also laid before Parliament during the first fifteen days of each session.^ In the session of 1880, the committee of public accounts, to whom the report of the auditor-general is always referred, considered several matters therein mentioned, and made the following, among other recommendations, which were formally adopted by the house.' Orders concerning Grants of Supply. 1. The description of the service for which a vote is given •should be as detinite as is practicable, so that no one vote may be applicable to the same purpose for which another vote is given. 2. The description of the sub-heads into which votes are divided should be as definite as is practicable, so as to avoid questions as to the particular sub-head to which any particular item of expen- diture should be charged. 3. The sujDplementary votes^ should be divided as near as may be into the same sub-heads as the main votes to which they are supplem entary . 4. Where large votes are taken it is desirable to divide them into sub-heads, so as to give in the estimates as much detailed information as is possible. 5. Votes which are intended as grants to institutions or indivi- duals should be distinctly so specified ; and no vote should be con- sidered as so intended unless so specified. 6. The supply bill should contain the sub-heads of the votes on which it is based. ' See estimates for 1883 in Sess. P. for 1882, No. 2, pp. 44-5 &c. -' This statement appears in accordance with the provisions of the appro- priation act of every year. Can. Com. J. (1883), 40 ; 45 Vict., c. 2, sched. B. •^ Can. Com. J. (1880), 183. * The reference here is to the supplementary estimates brought down "vvith, or subsequent to, the main estimates. A VDIT OF APPROPRIA TION A CCO UXTS. 509 T. It is the duty of those responsible for the estimates to make the calculations on which the main vote and its sub-divisions are founded as carefully and closely as practicable, and their atten- tion to this duty will be increased by their being expected to furnish reasons for discrej)ancies/ Previous to bringing down the foregoing rei^ort, the committee recommended the aviditing by the auditor- general of the accounts of the two houses for salaries and contingencies, members' indemnity, printing and library. These recommendations were immediately adopted in the Senate and Commons. The committee, in their second report, suggested that the Audit Act should be so amended as to give effect to the recommendations in question ; but Parliament has not as yet taken any steps in this direction. ' Sen. J. (1880), 96-7 ; Com. J. 125-6. See mpra, pp. 184-5. CHAPTER XVIII. PUBLIC BILLS. 1, Explanatoi'}'. — II. Bills of appropriation and taxation must originate in the Commons. — III. Introduction of bills. — IV. Bills relating to trade. — V. Or involving public aid and charges on the people. YI. Second Reading. — VII. Order for committee of the whole. — VIII. Instructiou.s. — IX. Reference to select committees. — X. Notice of proposed amend- ments in committee. — XL Bills reported from select committees. — XII. Proceedings in committee of the whole. — XIII. Reports from such com- mittees. — XIV. Bills not referred. — XV. Third Reading. — XVI. ^Motion that the bill do pass. XVII. Proceedings after passage ; amendments ; reasons for disagreeing to amendments. — XVIII. — Revival of a bill tem- porarily superseded. — XIX. Introduced by mistake. — XX. Expedition in the passage of bills- — XXI. Once introduced not altered except bv authority of the house. — XXII. Correcting mistakes during progress. — XXIII. Loss of a bill by accident during a session. — XXIY. Once re- jected not to be again offered in the same session; exceptions to general rule. — XXV. Royal assent ; changes in governor-general's instructions as to reserving certain bills ; assent always given in the presence of the two houses ; cases of bills assented to by error. — XXVI. The assent in the provincial legislatures.^Practice of reserving and vetoing bills. — XXVII. Amendment or repeal of an act in same session. — XXVIII. Commencement of an act. — XXIX. The statutes and their distribution. I. Explanatory.— According- to parliamentary practice a bill is an incomplete act of Parliament. It is only when it receives the assent of all the branches of the legislative power that it becomes the law.^ A bill is, generally speaking, divided into several distinct parts : 1, the title ; 2, the preamble and statement of the enacting authority ; 3, the body of the act, consisting of one or more proposi- tions, known as clauses ; 4, the provisions, and 5, the ' Sweet's Law Dictionary. II. Stephen's Comm. 383. PREAMBLE— EXACTING AUTHOllITY. 511 schedules/ The provisos and schedules may not be necessary in every act, while public statutes frequently omit any preamble, or recital of the reasons of the enact- ment, and contain only a statement of the enacting authority. The Interpretation Act- provides : 1. " The following words may be inserted in the preambles of statutes and shall indicate the authority by virtue of which they are passed : " Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as fol- lows: 2. " After the insertion of the Avords aforesaid which shall fol- low the setting forth of the considerations or reasons upon which the law is grounded, and which shall, with these considerations or reasons, constitute the entire preamble, the various clauses of the statute shall follow in a concise and enunciative form." ' The only exception to this form of enactment is the preamble of the supply bill, which is in the form of an address to the queen : "Most gracious Sovereign: whereas it appears by messages fi-om his Excellency, the Governor-General, and the estimates accompanying the same, that the sums hereinafter mentioned are required to defra}^ certain expenses of the public service of the dominion, not otherwise provided for, for the financial years, etc. ''May it therefore please your Majesty that it may be enacted ; and be it enacted by the Queen's Most Excellent Majesty', by and with the advice and consent of the Senate and House of Commons of Canada." 1 See 4G Viet. c. 30, (Liquor License Act, 1883), which contains all tlic l^arte of a complete act as given in the text- - 31 Vict, c 1, " An act respecting the statutes of Canada." ^ In acts of Ontario, Quebec, Manitoba, and British Columbia, her Ma- jesty's name is used as in acts of the Dominion Parliament. In Nova Scotia, New Brunswick and P. E. Island, bills are enacted by the lieut.- governor (governor simply in tlie former province) council and assembly. In the North "West territories, ordinances are enacted by the liout.- governor, by and with the advice and consent of tlio council. The same practice was followed in the legislatures of the old provinces before confederation. 512 FUBLKJ J! ILLS. This preamble appsars iu all bills of appropriation since the union of Canada in 1840,' and differs from the English form in similar bills sin(;e it does not assert in express terms the sole right of the Commons to grant supply. The preamble of the English act sets forth : "Wc your Majesty's most dutiful and loyal subjects, the Com- mons of the United Kingdom of Great Britain, in Parliament assembled, towards making good the supply which we have cheerfully granted to your Majesty in this session of Parliament^ have resolved to grant unto 3^our Majesty the sums hereinafter 7nentioned, and do therefore, most humbly beseech your Majesty that it may be enacted ; and be it enacted by the Queen's Most Excel- lent Majesty, by and with the advice and consent of the Lords', spiritual and temporal, and Commons," etc. It will be seen that the form of the enacting authority^ is substantially the same in each, and differs from that of bills in general since it contains a prayer to her Majesty, that it may be enacted. This form appears to be derived from the old practice of the English Commons centuries ago, when bills were presented in the shape of petitions to the king. AYhile the language of a petition is still retained as above in certain bills, the declaration of the advice and consent of the two houses of Parliament has been added in the course of time in accordance with the modern form of statutes.' Bills are divided into two classes. The first-class com- prises all bills dealing with matters of a public natnre, ^ Before the union, the preamble in appropriation acts of the old assem- blies of Lower and Upper Canada contained no reference to tlie gover- nor's message, but this was the only difference in form. Upp. Can. Stat. 3 Will. I\., c. 26 ; Low. Can. Stat. 41 Geo. III., c. 17. After the union, the messages of the governor-general, recommending supply, were always mentioned in the preamble of the act ; Can. Stat. 4 and 5 Vict. c. 12. ■^ See on this subject, which is interesting to students of legal archaeology, an elaborate preface by Owen Ruff head, to the first volume of bis edition of the statutes at large. Towards the close of the reign of Henry VI. ,. bills in the form of acts, according to modern custom, were first intro- duced. Cushing, pp. 796, 819. MONEY OR TAX BILLS. 513 and may be introduced for the most part directly on motion. The second class comprises such bills as relate to the affliirs of corporations or individuals, and can only be presented on the petition of the parties interested, and in conformity with certain standing orders which are always strictly enforced. It is proposed in the present chapter to deal exclusively with public bills. Another part of this work will be devoted to the rules and practice s^overning the introduction and passage of private bills. II. Appropriation and Taxation Bills.— As a general rule, pub- lic bills may originate in either house ; but whenever they grant supplies of any kind, or involve directly or in- directly the levying or appropriation of any tax upon the people, they must be initiated in the popular branch, in accordance with law and English constitutional practice.^ Section 53 of the British North America Act, 1867, ex- pressly provides : " Bills for appropriating any part of the public revenue, or for imposing any tax or impost shall originate in the IIou.se of Com- mons." And a standing order of the House of Commons declares explicitly : " All aids and supplies granted to her Majesty by the Parlia- ment of Canada are the sole gift of the House of Commons, and all bills for granting such aids and supplies ought to begin with the house, as it is the undoubted right of the house to direct, limit, and appoint in all such bills, the ends, purposes, consideia- tions, conditions, limitations, and qualifications of such grants which are not alterable by the Senate." - ' III. Ilatsell, 120, 154, 155, &c. Bramwell, 1, 150. ^ This 4. But legal authorities call insurance business a" trade" and insurance conipanies " traders." Doutre, Const, of Canada, citing Judge Taschoreau, pp. 274-(J. Sc*3 also 38 Vict., 520 PUBLIC BILLS. as a rule, on motion in the English as well as Canadian Commons.* In 1874 Ml', Anglin decided that general banking bills ought to be based on resolutions^ — a decision quite in accordance with the recent practice of the English Parliament,'^ which is, however, variable, with respect to joint stock banks.'' Bills respect- ing insolvency have been invariably introduced on motion for leave. ^ Bills to regulate the traffic on railways and to protect the interests of the public in connection therewith, have been almost invariably brought in on motion;" but in the session of 1877 a bill providing for the more effectual observance by railway companies of the law requiring the equality of treatment in the management of the traffic and the imposition of rates and tolls was founded on resolutions.' Bills relating to joint-stock and loan companies have been ^jresented directly on motion ;'* but in England bills relating to joint-stock banks, companies, and partnership have originated in committee.^ Bills respecting the insj^ection of staple articles of Canadian produce have generally been founded on resolutions ;^" but a bill to amend the same has been allowed on motion.'^ Bills to regulate weights and measures have generally been founded on re- solutions ;^- but in England, as well as in Canada, it has been decided that as such bills deal with questions of public policy, affecting c. 16, s. 1, applying to " traders and trading companies, except insurance companies." The correct practice, no doubt, is to commence in committee. A recent judgment of the Canada Supreme Court considers that insurance falls under the constitutional provision affecting trade and commerce. See infra, chap. 19. » Can. Si^eak. D. No. 177 ; Can. Com. J. (1870), 313 ; lb. (1878), 31 ; lb. 1879-67. Bills in English house in 1839 and 1854 on motion. ~ Can. Com. J. (1874), 142. •■* 94 E. Com. J. 468 ; 100 lb. 468 ; 112 76. 239. ♦Ill J6. 13,37,119. » Speak. D. 193 ; Can. Com. J. (1873), 287 ; lb. (1876), 164 ; lb. (1877), 21, 71,94 ; lb. (1878), 47; J6. (1879), 19, &c. « lb. (1873), 60, 118 ; lb. (1876), 70 ; lb. (1877), 159 ; lb. (1879), 301. ' Can. Com. J. (1877), 272. But in England such bills have been always introduced without a previous committee. 126 E. Com. J. 14 ; 128 lb. 27. See 8 & 9 Vict., c. 20, and Jour, of 1845 (railways). '^ Can. Com. J. (1877), 28, 107, 258. 9 111 E. Com. J. 13. 1" Can. Com. J. (1873), 127 ; lb. (1874), 184. " Can. Com. J. (1876), 76. 1- Can. Com. J. (1873), 83 ; lb. (1877), 291 ; lb. (1879), 289. BILLS AFFECTING TRADE. 521 the whole community, and not merely the interests of trade, they may be directly presented on motion for leave.^ Bills regulating harbours,- pilotage,^ and shipping ;* and providing for the preser- vation of good order on board, and for the inspection and measure- ment of steamers,'' have always been based on resolutions passed in committee. Bills respecting the culling and measurement of timber should originate in committee of thewhole.^. Bills respect- ing patents^ and copyright'^ have been presented without a com- mittee. Bills respecting bills of exchange and promissory notes need not originate in committee of the whole, unless they impose stamp duties.^ A bill to regulate the sale and disposal of bottles used in the manufacture of mineral water and other di-inks has not been allowed to pass to a second reading because it was not com- menced in committee of the whole. ^^ Bills to regulate generally the sale or prohibit the traffic in intoxicating liquors should originate in committee ;'^ but bills which prevent liquor traffic on ' 114 E. Com. J. 235 ; 115 lb. 370 ; Can. Com. J. (1877), 44, 122. 2 117 E. Com. J. 271 ; Can. Com. J. (1873), 23, 55, 149 ; Ih. (1877), 13(i. A bill was withdrawn in 1879, because it was not founded on resolution. Hans. p. G49. = Can. Com. J. (1873), 127 ; lb. (1877), 136, 222 ; lb. (1879), 290-1. ' 129 E. Com. J. 31 ; Can. Com. J. (1873), 24, 54, 245 ; lb. (1874), 185 ; lb. (1878), 108, 109, 116. » Can. Com. J. (1873), 23 ; lb. (1877), 117, 222. « Can. Speak. D., No. 104 ; Can. Com. J. (1877), 207. " Can. Com. J. (1873), 166. In 1872 a l)ill to amend and consolidate patent laws was based on resolution ; and sub.sequently the same resolu- tion was referred to the committee on the bill, on the ground apparently, that it imposed fees. This was clearly an irregularity ; and indeed it was not necessary to consider in a previous committee resolutions imposing mere fees, necessary to the execution of an act and for services performed, if the Enghsh practice had been followed. Imp. Stat. 15 & 16 Vict., c. 83 (107 E. Com. J. 313) was brought from the Lords' with fees provided in schedule. A resolution to impose duties on stamps was only considered in committee and referred to the committee of whole on the bill. « 3Iirror of P., 1840, p. 1110 ; 129 E. Com. J. 287. '•» Can. Com. J. (1870), 33,52 ; lb. (1872), 125 ; lb. (1873), 41, 175. Also, in 1874, 1875, 1879, 1882. See Can. Hans., April 24, 1878. 10 Can. Com. J. (1878), 146. " 125 E. Com. J. 62 ; 129 //;. 31, 49, 109, 158 ; 132 lb. 11, 12 ; Can. Si)eak. D. 22 ; Leg. ^Vss. J. (1855), 957-8 ; Can. Com. J. (1883), 377. lu the last case, the liquor license bill was framed in a select committee, and reported to the house ; but it was thought expedient to comi)ly with the express 522 PUBLIC BILLS. Sundays^ have been regarded as meaHures of public conceni and order, wliich do not come under this rule. On the other hand bills to regulate fairs and markets and to prevent trading on Sunday, have been allowed to be inti-oduced without a previous committee on the ground that they were matters of police regulation and public decency.- Bills regulating the importation of cattle, with the view of preventing the spread of contagious diseases, are always initiated in committee of the whole.^ Bills to amend or con- solidate the customs acts are always founded on resolutions.* Bills reducing duties of customs originate invariably in committee on the ground evidently that all such measures affect trade.'^ Bills to grant cei-titicates to pedlers,'' and to regulate the sale of poisons' have not required committees. A bill to regulate the dimensions of apple barrels has originated in committee f also, one to regulate the sale of fertilizers.^ A bill for regulating the employment of children in factories is not such a bill relating to trade as to require it to originate in committee.^'' The rule does not apply to bills that originate in the Senate, for the reason as stated by Mr. Speaker Denison : " The object of the rule that bills relating to trade should be founded on a resolution of a preliminary committee is in order to give opf)ortunity for a fuller discussion and a wider terms of the rule, and first pass a resolution in committee of the whole before formally bringing in the bill. Hans. p. 23-1 (Mr. Casgrain). 1 See English Commons journals for 1855, 1863, 1868, 1878, 1881, &c. * May, 532 ; Sunday trading bills, 1833, 1863, 1868, kc. Fairs and markets (Ireland) bill, 1854, 1855, 1857 and 1858. 3 103 E. Com. J. 857 ; 121 lb. 55 ; 125 lb. 267. In 1879, a bill respecting the contagious diseases of animals was brought in on simple motion by the minister of agriculture ; but the irregularity having been discovered in time, he withdrew the bill and brought in another, based on resolutions. Jour. pp. 114, 136. ^ Can. Com. J. (1877), 129. ^For instance bills to rejieal customs in Isle of Man, 125 E. Com. J. 96; to repeal duties on soap, 108 /6. 590 ; shipping dues exemption act, 12-5 Ih. 303. « 125 E. Com. J. 309. ■ 125 lb. 187. ^ Can. Com. J. (1876), 248-9. » lb. (1880), 154-5. '»72E. Hans. (3)286. MONEY OR TAX BILLS. 52S notice fo the persons interested. These objects have been already secured by the proceedings in the other house.'" When resolutions relating simply to trade have been reported from committee of the whole, they may be at once agreed to, and the bill introduced in accordance therewith." The rule requiring the adoption of resolutions on another day only applies to money or tax resolutions.'' V. Bills involving Public Aid or Charges.— It is the invariable rule that all measures involving a charge upon the people, or any class thereof, should be first considered in a com- mittee of the whole. Rule 88 orders : " If any motion bo made in the house for any pubUc aid or charge upon the people, the consideration and debate thereof may not be presently entered upon, but shall be adjourned until such future day as the house may think fit to appoint ; and then it shall be referred to a committee of the whole house, before any resolution or vote of the house do pass thereon.'" Under this rule, all bills providing for the payment of salaries, or for any expenditure whatever out of the public funds of the dominion must be first considered as resolu- tions in committee of the whole.'' And all such resolu- tions necessary to the introduction of a bill, must first obtain the recommendation of the governor-general." It often happens that bills are introduced with certain clauses providing for salaries or other charges on the public rcA^enue, and in that case the bill may be intro- ^ 172 E. Hans. (3), 1221. Nor is a previous resolution necessary in the case of a consolidation of existinjj: laws ; but in case of clianges, than it would be required. 57 Ih. 587. ^ Contagious diseasee, weights and measures bills, 1879. 129 E. Com. J. 31, &c. * May, 539. See supra, 423. * Res. of 1G67 ; 3 Hatsell, 176. Such a motion cannot be discussetl on the same day it is first presented; 164 E. Hans. (3) 996. Can. Pacific Res. Dec. 13, 1880-81 ; 1st Fob., 1884. ^ Can. Com. J. [1873] 399; lb. [1876] 84; //-. [1»77] 200; ///. [1879] 313. * See chapter xvii., ss. 2 and 3. 524 PUBLIC BILLS. •duced directly ou motion, while the clauses in question (which should be distinguished by italics or brackets) are considered in the shape of resolutions in committee, and when agreed to, referred to the committee on the bill.' " Such clauses," said Mr. Speaker Brand on one occasion, ^' form no part of the bill as originally brought in, but are considered as blanks. Before any sanction is given to them, the recommendation of the Crown must be signi- fied and a committee of the whole house consider on a future day the resolution authorizing the charge. Unless these proceedings are taken the chairman, under the standing orders, will pass over the money clauses without any question. Without such preliminary proceedings, the bill, so far as the public money is concerned, is entirely inoperative." ^ But it must be carefully borne in mind that this can only be regularly done when the money clauses are merely a part, and necessary to the operation of the bill. Whenever the main object of a bill is the pay- ment of public money, it must directly originate in com- mittee of the whole ; or else the proceedings will be null and void the moment objection is taken.'' In the session of 18*74 one of the ministers introduced ou motion a bill to appropriate certain lands in Manitoba, but objection was taken on the ground that all bills granting any part of the public domain should originate in the shape of resolutions, like all measures for the expenditure of public moneys. Accordingly he withdrew the bill, and intro- duced a series of resolutions on which he founded a bill.^ 1 May, 533. Can. Com. J. [1872], 170 ; lb. [1873], 269, 400 ; lb. [1877], 128 ; lb. [1883], 228. - 209 E. Hans. (3), 1950-53. 3 Can. Com. J. (1877), 200 ; lb. (1879), 313. ■* Can. Com. J. [1874], 112. Also, see a case in which a Canadian speaker (Sp. D. No. 121) decided that a private bill containing clauses granting public lands in aid of its object should originate in committee of the ■whole. On 7th jNIarch, 1878, resolutions granting certain lands for rail- way construction were referred to a committee of the whole, having first received the recommendation of the governor-general. BILLS IMPOSING CHARGES. 525 A bill transferring a government railway to a company has also been proceeded vA'ith in the same way.' The rule also applies to releasing or compounding any sum of money due to the Crown.' The rule just cited also applies to the imposition of any state tax or charge upon the people or any class thereof.^ But it is not held to apply to pecuniary penal- ties necessary to the operation of a bill.^ In the Canadian house it is the customary practice to consider all fees and expenses imposed by a bill previously in a committee of the whole ; ' but such bills are received from the Senate in conformity with the English practice which allows the house to accept any clauses from the Lords which refer to tolls and charges for service performed and which are not in the nature of a tax. ^ The practice of the English Commons is not to require a previous committee when the bill exacts fees for services performed, and when they are not payable into the treasury or in aid of the public revenue. For instance, the " act to regulate expenses and control charges of returning officers at parliamentary elec- tions " (38 and 39 Vict., c. 84 Imp. Stat.) contains a schedule 1 Truro & Pictou R. R. Can. Com. J. 1877, pp. 93, 134. ■■^ English S. O., 20th of March, 1707. See supra, p. 465. =* 174 E. Hans. (3), 1700-1. Can. Com. J. [1870], 285. * Post-office act, 18(57-8, s. 81, &c. ; wharves and docks bill, 1875 - gaming houses bill, 1877. In England same practice obtains : petroleum bill, 1871 ; act granting certificates to pedlers, 1870 ; small penalties in Ireland bill, 1873, &c. '^ Can. Com. J. (1874), 195, election law ; lb. (1870), 83 ; lb. (1879), 253- •55, 346-7, 368. It is not an uncommon practice in the Canadian house in the case of bills containing clauses imposing fees and charges whicii go into the treasury, to consider such clauaes in a previous committee and to refer them, when agreed to, to the committee on tlio bill. Can. Com. J. (1870), 242, 314 ; lb. (1872), 254. •^ S^ipra, p. 515. Patent bill, 1809 ; trade marks and designs bill, 1S70. For Imperial acts, see patent law amendment act, 1852; also, 16 & 17 Vict., c. 78, commissioners under act relative to ai)pointmont of persons to administer oaths in chancer}^, &.c. ; also, 35 Vict., c. 1, s. 5, Dom. Stat.; also, railway bills imposing rates of tolls, 8 t^ 9 Vict., c. 10, s. 90 ; 21 i^i 22 Vict., c. 75. 526 PUBLIC BILLS. of (-harges and expenses, which was not previously con- sidered in committee.' But when any payment is made out of the consolidated revenue fund, or out of moneys to be provided by Parliament, the clauses providing- for such payment must be first considered in committee. Under the act just cited, the candidates pay expenses ; but in another act providing for the trial of controverted elections by judges, the clauses paying judges and expenses were first considered in committee, as such payments are made out of the public funds." In 1883, the Liquor License Act contained a clause providing for the payment of certain fees by persons receiving licenses under the act. These fees, together with fines and x:)enalties, form a license fund, applied, under regulations of the governor in council, for the pay- ment of the salaries and expenses incurred under the law, and any residue is to be handed over to the treasurers of the various municipalities, except in the case of un- organized districts, where it shall be paid to the receiver- general. As these fees are only necessary to the execution of the act, and are not intended to be in aid of the public revenue, no previous committee was required.'^ It has also been held that a bill merely declaratory in its nature, and involving no new charge, need not originate in committee of the whole. ^ Neither is a com- ' See als?, "Act granting certificates to pedlers," in which fees are paid to pohce authorities ; 125 E. Com. J. 309 ; also, 29 cprehension by no means con- fined to that body, since English speakers have frequently found it necessary to give decisions and explanations on the subject. An instruction, according to these decisions, is given to a committee to confer on it that power which, without such instruction, it would not have. If the subject-matter of an instruction is relevant to the subject- matter, and within the scope and title of a bill, then such instruction is irregular since the committee has the power to make the required amendment. The following precedents will illustrate the correct practice with respect to these class of motions : In 1854 the English Commons had before them a " Bill to abolish in England and Wales the compulsory removal of the poor on the ground of settlement," and a member proposed to introduce clauses into the bill to prevent the removal of Irish paupers in the different unions of the country. It was pointed out that the contemplated changes • 1G3 lb. 5978 ; 212 Ih. 1075. - 179 lb. 110-7 ; 183 lb. 920-1 ; StMi. J. [18S2], 195. '^ 163 E. Hans. 5978 ; 179 lb. llG-7 ; Can. Com. J. [1875], 284. 534 riJBLIC BILLS. would entirely alter the character of the bill, and could only be made by an instruction ; the speaker being appealed to said,' " that the rule had been clearly stated, and if the noble lord intended to propose the addition of the new provisions Jilludc^d to, it would be necessary to move them as an instruction to the committee." " In 1865, the order for committee on the Union Charge- ability Bill having been read, Mr. Bontinck moved that " it be an instruction to the committee, with a view to render the working of the system of union chargeability more just and equal ; that they have power to facili- tate, in certain cases, the alteration of the limits of exist- ing unions." An objection was at once taken, that under the Poor Law Board Act there was power to alter the boundary of unions, and therefore an instruction was not necessary. The speaker (Mr. Denison) decided: "The question is not as to whether the Poor Law Board has the power, but whether the committee would have it without the instruction ; and, in my opinion, the committee would not have that power, because the subject-matter would not be relevant to the subject-matter of the bill. There- fore the motion is in order and should have precedence, because an instruction is not of the nature of an amend- ment, but of a substantive motion." ''' In ]8t8, the order for committee on the Factories and "Workshops Bill having been read, Mr. Fawcett rose to move an instruction extending the operation of the bill to children employed in agriculture. Mr. Speaker Brand stated in reply to an objection to the proceeding: "The motion of the hon. member is in the form of an instruc- tion to the committee. The committee would not have power to deal with the question unless an instruction of this kind were passed." ^ 1 74 E. Hans. (3), 107 ; 195 lb. 847 ; 207 Ih. 401-2. ■' 131 Ih. 1274. =* 179 E. Hans. (3), 116. * 238 lb. 03-4. INSTR UCTIONS. 535 In 1881, the order for the committee of the whole on a bill respecting the sale of intoxicating liquors on Sunday, in Wales, having been read, it was moved as an instruc- tion that " they have power to extend the same to Mon- mouthshire." ^ In 1868, the speaker ruled that a select committee to which had been referred the Sale of Liquors on Sunday Bill would bo confined to its subject-matter, and could not consider the question of the general licensing system without a special instruction from the house.' In 18*70, the order of the day having been read for com- mittee on a bill respecting elections of members of the Commons, it was moved that the committee be instructed to provide that the qualifications of voters should continue to be regulated by the laws of the legislatures of the pro- vinces. Mr. Speaker Cockburn decided that the com- mittee had the power to do what was proposed, and that consequently the motion was irregular.' In 1872, when the question for committee on the bill to repeal the insolvency laws was under consideration in the Canadian House of Commons, Mr. Harrison moved that it be an instruction to the committee to except the province of Ontario from the operation of the bill. Mr. Blake having made objection to the motion, Mr. Speaker Cockburn ruled : "As the bill affected the whole dominion the committee have already the power asked for in the motion, and consequently it is out of order." ^ Decisions of English speakers have also laid down the following rules with respect to instructions : "That it requires an instniction to divide a bill into two parts, or to conHolidato two bills into one.' ' 130 E. Com. J. 302. '^ 190 E. Hans. (3), 1869. -' Can. Com. J. [1870], 120-21. * Can. Com. J. [1872], 78-9. » 80 E. Hans. (3), 154 ; also, 130 E. Com. J. 285 ; 137 / b. 121. 536 IT 11 Lie HILLS. "That notice Hhoiild be g-iven of an instruclion wlien u member has proposed such as a substantive motion, and not as an amend- ment to the question, that the speaker do leave the chair.^ " That when a bill is simply a continuance bill of an act now in force, it is not competent for the committee to introduce a clause of a diffei-ent nature to the simple scope of such bill, but it may be an instruction to the committee to introduce such a chiuso.- " That it is not regular to instruct a committee to entertain a question which is outside of the bill before them. For instance, on the Eepresentation of the People Bill, in 1860, a member moved an instruction that no borough should be deprived of one member until it had been ascertained by an actual census of the population of the borough, Avhether or not the number of its population fell below the limit of 7,000 inhabitants. Mr. Speaker ruled, as above, because it was not competent to the committee to inquire with i-egard to the census.'^ " That any number of instructions may be moved successively to the committee on the yame bill, as each question for an in- struction is separate and indejiendent of every other.^ " That it is regular to move amendments to a question for an instruction."'' If a motion for an instruction contains a proposition that oiight to be considered in a preliminary committee, it can- not be entertained. For instance, when it was proposed on one occasion in the English house to instruct a com- mittee on a bill respecting the sale of spirits to extend its operation to the sale of beer, wine and cider, Mr. Speaker Denison said : " The necessity for an instruction arose I 175 E. Hans. (3), 1939-40 ; 158 Ih. 1951. ■-• 159 lb. 1912, 1924. 3 158 E. Hans. (3), 1954-5. ' In 1860, nine instructions were moved after the order for committee on the representation of people bill ; the proceedings and rulings, on this occasion, illustrate the correct jiractice with resi-)ect to instructions. 158 E. Hans. (3), 1951-88. See Blackmore's decisions [1881], 116-17, where a summary is given of the decisions of Mr. Si)eaker Denison, on points that were raised. ^ 101 E. Com. J. 113. INSTR UCTIOXS. 537 from the acts relating to spirits being' considered quite a distinct class ; and to deal with beer, cider and wine, would be to deal with separate trades. If the house should now deal with those trades by an instruction they would pass by a stage — that is a preliminary committee — that, in due order, ought first to have been taken." ' On the same principle, an instruction cannot be moved to make any provision which imposes a tax or charge upon the i)eople ; but the matter ought to be first con- sidered in a committee of the whole.- It is the practice in the English Commons to give, according as it is necessary, instructions to the committee on customs and revenue bills to make provisions therein pursuant to resolutions passed in committee of ways and means."* In 1882, the house considered the Arrears of Rent (Ireland) Bill, as amended in committee of the whole, and it was ordered that the bill be recommitted, and that it be an instruction to the committee that they had j)ower to make provision in accordance with a resolution, reported from a previous ^-ommittee, authorizing the payment out of moneys to be provided by Parliament of the salaries of any officers appointed under the act, and also the payment out of the consolidated fund of the United Kingdom of any moneys required for the purpose of assisting emigration from Ire- land.^ According to the modern practic(» of Parliament an in- struction to a committee is not " mandatory," and it is therefore customary to state explicitly in the motion, as shown above, that the committee " have power" to make the provision required in a bill.^ " For," as stated by Mr. ' 1(>7 E. Huns. (3), ()i)()-7U0. ■-■ 78 1 b. Can. Com. .T. [1882], 285. * Can. Com. J. [187!)], 81. The insolvency laws have always been tin* result of the deliberations of select committees. Soe journals of 1807-8, 1809,1870, 1871,1875. ■^ Marine electric telegraphs' bill. Can. Hans. [187(t], 1''"- (^I'"- fc^I>eak. Blanchet). May, 577. 540 PUBLIC BILLS. It is also pei-rcctly K^gular to r(3fer a number of bills at the same time to one committee of the whole which may consider all on the one day without the chairman leaving the chair on each separate bill.' X.— Notice of Amendments in Committee.— "When a member intends to move an important amendment in committee of the whole to a bill, he may or may not, according to Canadian practice, give notice of such amendment ; but latterly it has been found expedient in many cases to give notice, and this practice, obviously so convenient and useful, is gaining ground every session.^ In the English house it is usual to give such notice ; and in fact, on the consideration of the bill, as amended in committee, no new clause can be proposed unless the house has received a regular notice containing the words of the proposed amendment.^ XI. Bills reported from Select Committees.— When bills are re- ported from select committees after their second reading in the house, they go upon the orders of the day for con- sideration in committee of the whole, in pursuance of the following rule : 22. " Bills reported after second reading from any standing or select committee shall be placed on the orders of the day follow- ing the reception of the report, for reference to a committee of the whole house, in their proper order, next after bills reported ' Eng. S. 0. 19tli July, 1854, No. liii. 114 E. Com. J. 253 : " Provided that, with respect to any bill not in progress, if any member shall object to its consideration in committee with other bills, the order of the day for the committee on such bill shall be postponed." In the legislative assem- bly of Canada this practice was followed on several occasions- Leg. Ass. J. [1860], 445 ; Ih. [18G1], 319 ; Ih. [1866], 195. In 1861 some nineteen bills were referred at one time. But it does not appear to be the practice of the Senate, Deb. [1880], 305. '' V. & r. [1877], 175, 200, 214, 225, 226, 233, 257. Raihvay act [1879], 250 ; militia act, 462. Notice is reqi;ired in case of amendments to private bills. ■' S. 0. 1854, No. Iviii. IN COMMITTEE OF THE WHOLE. 541 from committees of the whole house. And bills ordered by the liouse for a-eference to a committee of the whole house shall be placed, for such reference, on the orders of the day following the order of reference, in their proper order, next alter bills re- poi-ted from any standini;: or select committee.'" Xn.— Proceedings in Committee of the Whole.— AVhen either house asTees to o-o into committee of the whole on a bill, the speaker calls a member to the chair, and the mace is put under the table. The practice in both houses is for the most part identical f but there is an express order of the Senate which forbids " any arguments being admitted against the principle of a bill in a committee of the whole."'^ Rule 46 of the Commons provides : ** In proceedings in committee of the whole house upon bills, the preamble shall be first postponed, and then every clause con- sidered by the committee in its proper order; the preamble and title to be last considered." In the Senate the title is regularly postponed ;' but in the Commons it is never considered except when it is ne- cessary to amend the same. The preamble is also post- poned in both houses until after the consideration of the clauses.^ The bill is then considered clause by clause. The chairman will call out the number of each clause, and read the marginal note as a rule, but he should give the clause at length when it is demanded by the committee. He will then put the question, " shall the clause be adopted," or, " stand part of the bill ? " Each clause is a distinct question, and must be separately discussed. "When a clause has been agreed to, it is irregular to discuss it ' 129 E. Com. J. 260, 314 ; Can. Com. J. [1877], 140, 207. Insuianco l.ill. '' Sen. J. [1807-8], 121. ■^ R. 89. * Sen. J. [1880], 100. * lb. [1880], 100. The English house has now a S. 0. to postpone the preamble until after the consideration of the clauses, witliout «|U06tion put. No. Lv., 27th Nov., 1882. 542 PUBLIC BILLS. again on tlic consideration ol" another clause." Amend- ments mnsi 1)0 made in lli<' order of the lines of a clause. If the latter part of a clause is amend<'d, it is not compe- tent for a member to move to amend an earlier or antecedent part of the same clause. But if an amendment to the latter part of a clause is withdrawn, then it is competent to propose one to an earlier part.-^ "When the committee have agreed to a clause, or to " a clause as amended," the chairman will sign his initials on the margin, and his name in full at the end of the bill, when it has been fully considered by the committee. According to strict English practice, which is generally followed in the Senate, new clauses should be brought up and discussed after the consideration of the original clauses of the bill ; but in the Canadian Commons, the practice is not rigorously followed, and the committee is generally ^guided by what is most convenient in each particular case. The schedules are the parts of the bill last consid- ered. Clauses are frequently postponed, in order to give an opportunity until another meeting of the committee of considering the advisability of amending them, or tak- ing any other course that may be found necessary with respect to them. If it be necessary, the title can be amended in accordance with English practice, in order to make it conform to changes in the bill, and in such a case a special report ought to be made f but as a rule in the Canadian house, any change in the title is made the sub- ject of a special motion after the third reading.^ In the case of a Senate bill it is usual to amend it in committee, ^ 241 E. Hans. (3), 2112 ; May, 561. If a member move to omit a clause the chairman will simply put the usual question, shall the clause stand part of the bill ? 164 E. Hans. (3), 1466. •-' 46 E. Com. J. 175 ; 181 E. Hans. (3), 539. ^ 127 E. Com. J, 352, parish constables abolition bill ; Can. Com. J. [1882], 426, harbour and river police bill. * Can. Com. J. [1876], 217 ; lb. [1877], 212. IN COMMITTEE OF THE WHOLE. 543 and report the fact to the house. ' But in the Senate the title may be amended at this as at any other stage of the bill.- A committee of the whole have now power to make amendments not within the scox)e and title of the bill. A rule of the English Commons'^ provides : "That any amendment may be made to a clause, pi-ovided the same be relevant to the subject-matter of the bill, or pursuant to any instructions, and be otherwise in conformitj' with the rules and orders of the house ; but if any amendment be not within the title of the bill, the committee are to amend the title accord- ingly,^ and report the same specially to the house.'' In the session of 18*75, the house went into committee on a bill " to amend the general acts respecting railways," and a question arose whether it was competent to add a clause requiring the government to purchase goods for the use of dominion railways upon public tender and con- tract only ; and the committee having arisen for the purpose of receiving instructions from the house upon the point at issue, Mr. Speaker Anglin decided that such an amend- ment would be regular'" without an instruction. A similar decision was given in committee of the whole on a bill to repeal the Insolvency Laws now in force in Canada. It was proposed to make some amendments which would have the etfect of adding certain provisions with respect to preferential assignments and priority of judgment, and in that way avert certain dangers likely to result, in the opinion of many persons, from the total repeal of the act as provided for in the bill. The amendments were de- cided to be in order.^ 1 Can. Com. J. [1882], 363. •^ Sen. J. [1880], lOG, 1G8. •■' S. O. 19th .hily, 1854. ' Sen. J. [1877], 253. ^ This order has always boon held in tho English house to apply to select committees. May, 578 ; 118 E. Com. J. 248 ; 127 lb. 169,342. « Can. Com. J. [1875], 327. ■ Can. Hans. [1879], 1775. 544 FUJI Lie bills: On the other hand, it has been decided that it is not within the scope of a committee to which a continuance bill has been rei'errod, to amend the provisions of the acts which it is thereby x)roposed to continue, or to abridge the duration of the provisions contained in those acts.' It is irregular to propose an amendment which is irre- levant to the subject-matter of a clause, but it should be submitted to the committee at the end of the bill, as a separate clause.^ The committee cannot agree to any clauses involving payments out of the public funds,'' or imposing any do- minion tax or charge upon the people,^ unless such clauses have been previously considered in committee of the whole — a subject fully explained in the previous part of this chapter.' The committee on the bill cannot increase duties, without a previous resolution from a committee,, but it may reduce them in accordance with the settled, principle that gives every facility to the removal of public burthens.*^ It has also been ruled in the English house that amendments varying the incidence of a rate or tax come within the rule, requiring consideration in a ]3re- vious committee, and the bill must be re-committed with respect to the clauses affected, in case there has been no previous committee on the subject.^ Such clauses, having been read a second time and agreed' to, and referred to the committee on the bill, are not con- sidered as amendments made in committee. According-ly if no alteration be made therein in committee on the bill,. 1 129 E. Com. J. 353. - 147 E. Hans. (3), 1190, 1198. In this case the amendment proposed to be made was relevant to the bill, but as it embodied a principle contrary ' to the clause, it could not be added. » May, 563 ; Can. Com. J. [1876], 84, 185 ; lb. [1877], 94, 128. * Can. Com. J. [1870], 242, registration of timber marks ; lb. 285,. copyright. * Supra, s. V. •^ May, 564. ' 217 E. Hans. (3), 402, 413. 7.V COMMITTEE OF THE WHOLE. 545 ilie latter may be reported up without amendment/ The English Commons have the following order : — "In going through a bill, no questions shall be put for the till- ing up of words already printed in italics, and commonly called ' blanks,' unless exception be taken thereto; and if no alterations have been made in the words so printed in italics, the bill is to be reported without amendments, unless other amendments have been made thereto." - But an exception is always made in the case of a Senate bill. When such clauses are added to a Senate bill, they must be considered as amendments and reported up as such, in order to send them to the upper hous(» for con- currence." After a bill has been considered clause by clause, and the preamble agreed to, the committee have sometimes found it expedient to reconsider the bill, either in whole or in part, and in order to do this, a motion for the recon- sideration has been made and agreed to.' The Senate have a rule which appears to provide for such cases : " 44. A senator may, at any time before a bill has passed, move for the reconsideration of any clause thereof already passed." The same practice sometimes obtains in Commons com- mittees, but it is not one to be encouraged, since it is obviously at variance with the sound principle which prevents either the house or committee passing on the same question twice.'' The proper time for the reconsider- ation of an amended bill is after report from committee, when, under English practice — which might advantage- ' Penitentiary act, 1S7G. - S. O. lOtli July, 1834, No. 57. In the English Commons money or taxation clauses are printed in italics in the bill as intrcMluced. In tho Canadian house they are generally given in the same way. » Post-office bill, 1867-8 ; Sen. J. 155-8 ; Com. J. 128-9 ; census bill, 1871). * Sen. J. 1882, March Gth and 13th, county judges' bill. * See siipra, p. 339 7iote and infra, j). 5(i3. 35 546 PUBLIC BILLS. ously bo followed in the Canadian Commons — it ia com- petent to make amendments, and " reconsider " the bill ; or in any case, it may be sent back, and the committee regularly authorised to reconsider it in any particular.' Xni.— Report from Committee of the Whole.— "When the com- mittee have only partly considered a bill and it is found advisable to postpone further proceedings until a future day, the chairman is instructed to report progress, and ask leave to sit again.^ On receiving the report, the speaker will ask the house to appoint a future day for the further consideration of the bill. But when it is w^ished in com- mittee to make no further progress with a bill, it is moved " That the chairman do now leave the chair." In this case no report is made to the house and the bill wull disappear from the order book.'^ The same will happen if it is found that there is not a quorum present in the committee.^ But the committee " have no power to extinguish a bill, that power is retained by the house itself." ^ Consequently the bill may be subsequently revived by a motion, without notice, to fix another day for the committee.'^ But when the committee have fully considered the bill, the chairman reports " The committee have gone through the bill and made certain amendments thereto " ; or " the committee have gone through the bill aud directed me ^ Infra, p. 547. ^ Can. Com. J. [187 7], 186. Sometimes the committee may receive leave to sit again that same day. lb. [1878], 147. ■' lb. [18G9], 106, 288 ; lb. [1874], 326 ; lb. [1882], 229 ; Can. Hans. [1882], 615 ; Sen. J. [1880], 166. ' 110 E. Com. J. 449. 3 176 E. Hans. (3), 99. " Can. Com. J. [1883], 159 {'Mr. Si-)eaker Kirkpatrick's ruling with respect to Criminal Law Amendment Bill). See infra, s. xviii., where the ques- tion of notice is discussed. REPORT FROM COMMITTEE. 547 to report the same without amendment." ' Ivule 47 of the Commons provides : •• All amendments made in committee shall be rejtorted 1)}' the chairman to the house, which shall receive the same forthwith. After report the liill shall be open to debate and amendment before it is ordered for a third readinij^. But when a bill is reported without amendment, it is forthwith ordered to be read a third time, at such time as may be appointed by the house." Accordingly when a bill is reported without amend- ment, the speaker puts the question, " "When shall the bill be read a third time ? " The bill is either read immediately, or on a future day, as the house may decide. But when a bill is reported with amendments the speaker will propose the usual question, " "VYhen shall the bill, as amended in com- mittee, be taken into consideration ? " On this question the only regular amendment is as to the time when the consideration should be taken, and the discussion must be relevant thereto.' Except in cases where the amendments are of an important character, and the house requires time to consider them, ' the bill is immediately considered.^ "When the bill, as amended, is taken into consideration, the amendments are twice read and agreed to." Up to very recently the amendments onh' were considered : '' but now the whole bill is open to consideration, which is in conformity with the Canadian rule, and with the prac- tice of the English Commons from which it is taken." In the Senate it is usual to follow the English practit-e and amend the bill, when necessary, on consideration of 1 Can. Com. J. [1S77], 232. - 217 E. Hans, (o), o4.5-5S. It is nut regular to discuss a i)arti( iilar dauso, 250 lb. 3. ^ Maritime jurisdiction ])ill, 1S77. Can. Com. J. [1878], 09. * Can. Com. J. [1877], 224 ; lb. [1878], 200 ; Sen. J. [1807-8], 225. * Can. Com. J. [1877], 241. 6 1 b. [1809], 253. See for English procedure, 130 E. Com. J. 110-1 IS. 548 PUIiLKJ BILLS. the bill as amended in committee of the whole.' As a matter of fact, the Commons never amend the bill at this stage in accordance with the Eng'lish practice. It is quite usual, however, for a member to move that the order for consideration be discharged and the bill recommitted for the purpose of amending the bill in any particular.' The bill may be ordered to be reprinted as amended, or re-com- mitted to a committee of the whole, or to a select com- mittee, immediately after reception of the report.^ Or, on the order of the day having been read for the considera- tion of the bill, as amended, it may be recommitted to a select committee, and all petitions relating thereto may be so referred, and counsel may be heard before the com- mittee on the subject.^ Bills may be recommitted any number of times to a committee of the whole or to a special committee.^ Bills may be recommitted ivith or without limitation ; in the latter case the whole bill is open to reconsideration ;'' but in the former case, the com- mittee can only consider the clauses or amendments or instructions referred to them.'^ Xrv. Bills not referred to Committee of the Whole.— It is not an uncommon practice in the Canadian houses to pass 1 Sen. J. [1867-8], 222 ; Ih. [1877], 143-4 ; Ih. [1878], 180, 259, &c. - Can. Com. J. [1869], 249-252 ; Ih. [1877], 208 ; S3 E. Com. J. 533 ; 128 Ih. 375. ' 129 E. Com. .T. 228, 244 ; Can. Com. J. [1875]. 160 ; Ih. [1880], 124 ; Ih. [1882], 158 (reprinting) ; lb. [1877], 149 (select com.) ; Ih. [1878], 172 (com. of whole). Sometimes the amendments, when they are short, are printed in the votes for the convenience of the house, when the bill has been amended by a select committee ; common assaults' bill, 1878, p. 138, V. & P. In such a case no formal motion need be made ; a verbal direc- tion will be given to the clerk. * 129 E. Com. J. 345. ^ Can. Com. J. 1875, supreme court bill ; Ih. 1877, Pickering harbour bill ; 69 E. Com. J. 420, 444, 460 ; 128 lb. 375. « 129 E. Com. J. 284, 308 ; Can. Com. J. [1878], 170 ; lb. [1880], 82. ' Can. Com. J. [1877], 115, criminal procedure bill; 216, joint stock com- panies' bill ; Ih. [1878], 172, indejjendence of parliament bill; 178, insur- ance bill, 129 E. Com. J. 364 ; 179 E. Hans. (3), 826 ; Can. Hans. [1875] 90S. NOT REFERRED TO COMMJTTEK OF THE WHOLE. 549 bills without reference to a committee of the whole. This is almost invariably done in the case of the Appropriation or Supply Bill/ and not unfrequently in the case of other bills, also founded on resolutions passed in the committee of the whole." Instances are also found in the Canadian journals of Commons' bills not based on resolutions, as well as of Senate bills having been passed without reference to a committee of the w^hole^ — being* read at length in such cases instead of being sent to a committee of the whole.' Supply and customs' bills, on the other hand, have been considered at times in committee, whenever it has been found necessary to amend them. ' This proceedinir is at vari- ance w"ith the general practice of the Canadian Commons, and is not sustained by the modern usage of the English house, where bills generally (except those reported from standing committees) are considered in committee of the whole.*^ It may be added, however, that the practice in the Canadian house appears to be followed only in cases where there is no wash or intention to propose an amend- ment in committee. In the Senate, public bills are also sometimes considered without reference to a committee of the whole,' and inva- riably so in the case of the supply bill. In the Lords, bills are almost invariably committed, except towards the end of the session, and then the question for a committee is formally put and negatived."* ' Chapter xvii., s. 11. ■' Can. Com. J. [1867-8], 114 ; Ih. [1871], 117 ; ///. [1.S77], r.llii ; Ih. [1879], 374, &c. ; Sen. J. [1878], 205, 282. •''Can. Com. J. [18G 7-8], 37 (speaker's act); 22t) (interpretation of stat- utes) ; Ih. [1873], insolvency bill, 314 ; Ih. [1873], 17i», 210 (Senate bills). * This is an obsolete practice of no utility, and may bo traced to the exploded practice of reading bills at len^jtli. See «»//•", p. 518 »(. ■' Can. Com. .1. [18()7-8]. 421 ; Ih. [1874], 207. « 241 E. Hans. (3), 1238-9. See mpra, p. 539 n. ^ Sen. J. [1867-8], 309. » Lords' J. [1877], 393, 405, &c. 550 PUBLIC BILLS. XV. Third Reading.— \V lie n the order of the day for the third reading has been read, it is competent to move that it be discharged and the bill withdrawn,' or that it be re- committed." Formerly it was not unusual when the mo- tion for the third reading had been agreed to, to add clauses, or make other amcndment.s' ; but of late years the house has followed the modern practice of the English Commons, which is stated in a standing order : " no amendments, not being merely verbal, shall be made to any bill on the third reading.'" Whenever it is proposed to make important amendments, it is usual to move to discharge the order for the third reading, and to go back into committee for the purpose.'^ Or the house may be asked at this as at any other stage of a bill to divide on a resolution relative to the principle of the whole measure.*^ In the Senate, bills are constantly amended on the third reading without going back to committee." Previous to 1880-81 it was customary not to require a formal motion for the third reading, — a loose practice which sometimes gave rise to misunderstandings when members wished ta move amendments. Since then, the third reading is moved regularly as in the Commons.^ The practice in moving' amendments is still very variable. Amendments are now moved after the reading of the order,^ or on the motion for the third reading — the proper time when there is a diver- 1 Can. Com. J. [1874], 298 ; 112 E. Com. J. 380, &c. ^ Can. Com. .J. [1873], 311 ; 113 E. Com. J. 318, &c. ■'Can. Com. .J. [1867-8], 112, 180, 402. * 21st July, 1856 ; 256 E. Hans. (3), 19, 20. s Can. Com. J. [1877], 228. « 131 E. Com. .T. 229. 'Sen. J. [1867-8], 124, 278; 76. [1876], 115, 183, 212 ; 16. [1878],. 186 ; lb. [1880], 247 ; Ih. [1882], 334. Same practice in Lords ; 151 E. Hans. (3), 1967, 2077 ; 209 Ih. 764 ; 20th Feb., 1862 ; Lords' J. [1877], 260. *Sen. Hans. [1880-81], 401 (Mr. Speaker Macpherson's remarks). 9 Sen. J. [1882], 136, 147, 187, 227, 257-9. This is generally the case with private bills and amendments to which there are no objections. READ THIRD TIME AND PASSED. Ool sity of opinion as to the bill and amendments.' Or they are moved after the third reading has been agreed to.- Sometimes it is found convenient to go back to com- mittee.' XVI. Motion, that the Bill do pass.— The next question put by the speaker is : •'That this bill do pass, and that the title be, etc." This motion generally passes nem. con. immediately after the third reading/ though it is quite regttlar to defer the final passage until a future day \' or to move that the fur- ther consideration of the bill be postponed ; or to propose other amendments against the principle of the measure with the view of preventing its passage.'' On the 5th of April, 18^7, in the Canadian Commons, a member proposed to send a bill respecting insolvency back to committee, but the speaker ruled that such an amendment was inad- missible at that stage — the third reading having been agreed to." Any amendment to the title may now be raade.*^ XVII. Proceedings after Passage, — Amendments, Reasons. — When a bill has passed all its stages in one house, it is reprinted in proper form and communicated to the other house by one of the clerks at the table, who takes it up and presents it at the bar to a clerk.'' Every bill has en- ' Sen. J. [1880-81], 203-6 ; Ih. [1880], 247 ; Ih. [1882], 190, 327. •^Sen. Hans. (1880), 281-2; Jour. 157, IGO, 187 ; /^. (1880-81), 188 ; Ih. (1882), OG. '•' Sen. J. (18G9), l-'il ; lb. (1876), 165-6. * Can. Com. J. (1877). 223, &c ^ May, 484. In the Senate, 1879, the motion for the passairc of a Mil was nejratived, the speaker coming down from his rliair to six'ak and vote against the measure. Hans. p. 439. •^ 86 E. Com. J. 86 ; 106 J6.335 ; 117 Ih. 383. ' Can. Com. .T. (1877), 220. ** 129 K. Com. J. 60, 64, 115, 153, &c. ; Can. Com. J. (1874), '■'•-^ \ ^''- (l^"^"*') 217; Ih. (1S79), 373. *•' Sen. K. 100 ; Com. R. 97. 552 PUBLIC BILLS. gi'ossed on its back the order of the house, in the two lan- guages : That the clerk do carry the bill to the Senate (or Commons) and desire their concurrence.' If the bill is passed by the Senate, to which it is sent, without any amendment, a written message is returned to that effect." If the bill is amended, a message is sent desiring the con- currence of the other house to the amendments, which are always attached to the copy of the bill.' If the bill fail in either house, no message is sent back on the subject, and the fate of the measure can only be decided by reference to the records of the house, to which it was sent for concurrence.^ Rule 23 of the Commons provides : "Amendments made by the Senate to bills originating in this house, shall be placed on the orders of the da}- next after bills reported on by select committees." The practice in both houses with respect to amend- ments is the same. "When the amendments are of an un- important character, or there is no objection to their pas- sage, they are generally read twice and agreed to forth- with f but if they are important their consideration is de- ferred until a future day.'' The speaker of the English Commons lays down the English practice as follows : " In cases where expedition is necessary, it has been the prac- tice of the house occasionally — especially late in the ses- sion — to order that these amendments shall be considered forthwith. But on such occasions the member in charge of the bill is bound to satisfy the house that expedition is necessary."'^ 1 Sen. J. (1878), 187 ; Can. Com. J. (1878), 202, 265, &c. ■' Sen. J. (1878), 216 ; Com. J. 224. 3 Sen. J. (1878), 277 ; Com. J. [1877], 131, 322. * Receiver-general and attorney-general of Canada bill ; Com. J. 1878, p. 155; Sen. J. p. 201. ^ Sen. J. (1878) 277. 6 Sen. J. (1869), 170 ; Com. J. (1877), 183 ; Ih. (1878), 261, 292. ' 225 E. Hans. (3), 650. See also, 110 E. Com. J. 458, 464 ; 135 E. Hans. (3), 1411. A.V]:XD.\fEXTS. 55:1 If one house agree to the amendments made in a bill by the other house, a message is returned to that effet-t, and the bill is consequently ready to be submitted to the gov- ernor-general.' In case the amendments are objected to, a member may propose : That the amendments be considered that day "three" or '"six" months ;- and, when such a motion is agreed to, the bill is practically defeated for that session. But under ordinary <;ircumstances, when there is a desire to pass the bill if possible, a member Avill move that the amendments be " disagreed to " for certain " reasons," which are communicated by message to the other hons<^ where the amendments were made. These reasons are moved after the second reading of the amendments.' If the Se- nate or Commons do not adhere to their amendment, on the reasons being communicated to them, they return a message that "they do not insist, etc "' ; and no fui-ther action need be taken on the subject. But if they " insist on their amendment,"' then the other house will be called upon to consider whether it will continue to disagree or waive its objection in order to save the bill. In the latter case, the house which takes strong ground against an amendment, will agree to a motion that it "does not insist on its disagreement," but concurs in the amendment made by the other house ; and consequently the measure i> saved.'' In 18Y8, the Senate having insisted on their amendments to two Commons' bills, respecting the su- preme and exchequer court and the Pembina branch of 1 Can. Com..!. (1S76), 153 ; lb. (1878), 200 ; Sen. J. (1878), 177. ^Sen. J. (1876), 190 ; Can. Com. J. (1877), 350, Albert K. K. Mil ; /A. (1877), 281. ' Can. Com. J. [1874], 31!) ; Ih. [1877], 202 ; lb. [1878], 2U3 ; lb. [1882]. 508 ; lb. [1883], 32G ; Sen. J. [1878], 293, &c. * Sen. J. [1878], 232, 289, 290 ; 77.. [1880], 277 ; Cum. J. [1S77], :'.2S ; fh. [1882], 512. ^ Sen. J. [1878], 289. In siuli a case the rea.son.s are also j^'iven. lb. 275-G. « Sen. J. [1878], 295 ; lb. [1882], 335, :',41, 342; Can. Com. J. [1877], 328; lb. [1878], 298 ; lb. [1882], 515 ; II:'. K. Com. J.. 332. 554 PUBLIC BILLS. the Pacific Railway, th(> government allowed tliem to drop ; and the same was done in 1883 in the case of a bill further to amend the fisheries' act.' The old practice of resorting to a conference, in order to bring about an agreement between the two houses, is now virtually obsolete, though the Commons have still a rule on the subject.- When amendments made by one house to a bill from the other house are received back, and are under consid- eration, it is not regular to discuss the bill itself, or its principle, or the policy of the government thereon ; but the debate must be confined to the amendments.' Nor on a motion for disagreeing to an amendment of this kind. is it regular to enter into a general discussion of the prin- ciple of the bill, but all debate should be confined to the amendment and the reasons for the same.^ Neither house can regularly, at this stage, insert any new provision, or amend, or omit any part of a bill it has passed itself and sent up to the other house for concur- rence.' But it is perfectly in order to propose any amend- ment to an amendment made by the one house to a bill of the other house, provided it is " consequential " in its nature ; that is to say, consequent upon, or relevant to the amendment under consideration." In 1879. a bill re- specting petroleum was sent up to the Senate for concur- ' Sen. J. [1878], 277, 294 ; Com. .T. 284, 298 ; Com. Hans. 2550, 2553 ; Sen. J. [1883], 288 ; Com. J. 430. ■'' Chapter xiv., s 2. ■' 241 E. Hans. (3), S4G; Can. Hans. [1880], 1985. * Can. Hans. [1877], 1879, Albert R. R. bill ; lb. [1878], 2457, Canada Pacific R. R. bill. * 9 E. Com. J. 547 ; 91 lb. 592 ; 114 Lb. 375 ; 121 Lb. 472 ; 135 E. Hans. (3), 828 ; Can. Com. J. 1875, March 23, marine electric telegraphs bill ; Lb. 1878, April 5, Canada Southern R. R. bill. « May, 587 ; 193 E. Hans. (3), 1920 ; 129 E. Com. J. 299 ; 115 Lb. 494 ; 120 Lb. 197 (an amendment in body of bill, consequent upon a lords' amendment). Sen. J. [1877], 228 ; lb. [1882], 328 ; Can. Com. J. [1869], 281 ; Lb. [1877], 201, 268 ; Lb. [1879] 415 ; Lb. [1882], 508, 509, 513, 514, 515 ; Lb. [1883], 323. .1 MEXD MENTS. 5 6 5 rence. It had beeu amouded in the Senate and smt back to the Commons, when it was discovered that a very impor- tant matter had been left out of the bill. As it was im- possible to alter the bill at that stage, since the requisite amendment was not consequent on the Senate amend- ment, it was necessary to introduce a short bill embody- ing the provision in cjuestion.' Sometimes bills are returned from the Senate with amendments which appear to infringe on the privileg«-s of the Commons. In such cases the bills are sent back with reasons for disagreeing to the amendments ;■ or if the amendments are of an unimportant character and the house is anxious to avoid all delay, they are at once agreed to with a special entry in the journals of the house, so that the agreement may not be drawn into a precedent. ' Bills originating in one hotise are brought down to the other house with a message, " That the Senate (or Com- mons) have passed a bill intituled, etc., to which they desire the concurrence of this house.'" It is usual for the member who has charge of the bill to move immediately that it be read a j&rsttime, and placed for its second read- ing on the orders.^ The motion for the first reading will be decided without amendment or debate, in at-cordance with rule 42 of the Commons. The moment a bill comi's into possession of either house it is subject to all its rules with respect to bills. XVni. Revival of a Bill temporarily superseded.— Tlie cjuestiou lias been frequently discussed in the Canadian House of C'Ommons, whether it is necessary to give notice of a motion for the revival of a bill, which has temporarily dis- ' C«.n. Com. .T. [1S7!>], 422. The. error was pointed out in the Sc^nato. when the oriirinal bill had passed its final stage, but it was too late iIkmi to rectify it. Sen. Deb. [1879], 60'J. * Can. Com. J. [1873] 430 ; Sen. J. 330 ; timber duticus at I^iuIk'. . ' Can. Com. J. [1874], 336. See mipra, p. 514. *Sen. J. [1878], 231, c^c. ; Can. Com. J. [1878], 171 ; 121) E. Com. .1. 2>1. * Sen. J. [1878], 231 ; Com. J. [1878], 171 ; 132 K Com. J. 110. 556 PUBLK J! ILLS. appeared IVoin the order papisr.' Itule 81 of the house, which requires two days' notice of a motion says dis- tinctly that an (exception shall be made of bills "after their introduction."- A notice of a motion for leave to intro- duce a bill does not go on the order paper among the ordinary notices of motions, but is placed at the head of the paper containing the daily order of business,' for the infor- mation of the house. When motions are called during the progress of routine business — always before calling of orders of the day' — the members propose their motions for leave to introduce bills, in the manner previously ex- plained in the opening part of this chapter. If such motions were allowed to go on the notice paper, the intro- duction of many bills would necessarily be indefinitely postponed, since only particular days or parts of days are devoted to " notices of motions," and it not unfrequently happens that weeks ela]3se before a particular motion is reached. The practice in the Canadian house in reference to a bill temporarily superseded, has been to move that it b)e read a second or third time, or committed, (as the case may be), on a future day, as soon as motions have been called in their due order.' Such a motion prevents sur- prise and is equivalent to a notice. The same subject has also been considered in the English house, and the same conclusion arrived at in reference to a bill which had dis- appeared from the order paper, on account of a committee having arisen without reporting." On another occasion it was decided : ^ Supra, p. 530. - Supra, p. 309. •' This practice Avas commenced in the session of 1880, notices of bills having previously appeared only in the votes. . •* Supra, p. 309. ' Can. Speak. D. 132. Interest bill, 1870 ; insolvency bill, April 3, 1876, Can. Hans. Bill for relief of Robert Campbell, April 24 and 26, 1877, Can. Hans. All>ert railway company bill, April 27, 1877. Criminal laAv amendment bill, 30th March, 1883 (Mr. Si)e.alver Kirkpatrick's decision). " See remarks of Mr. Speaker Denison on this point. 176 E. Hans. (3), 99. INTRODUCED BY MISTAKE. 551 " If a member Avishos to alter a bill his course is to ask leave of the house to withdraw the bill and present another instead thereof. Under such circumstances no notice on the part of the member in charge is necessaiy in order to raise the question whethei- he should, or should not, be permitted to present anothei- bill."! Again, when the motion for the second reading* of a bill has been negatived, it has been immediately followed hv another for reading it that day three or six months." If a bill becomes a dropped order by the counting out of the house it is competent for a member to revive it on a sub- sequent day without notice."' In the Senate, on one occasion, a private bill was re- ferred to the supreme court for an opinion as to whether it came within the jurisdiction of the Parliament of Can- ada, and as this was done by an amendment to the motion for the third reading, the bill disappeared from the order paper. Consef[uently when the judges had reported favourably, it became necessary to restore the bill to the paper, which was done without notice.^ XIX. Bill introduced by mistake.— If a bill should be intro- duced by mistake, and the order made for the second reading, it will be necessary to move for the discharge of the order and the withdrawal of the bill. In the session of 18*78, the minister of marine had two resolutions re- specting merchants' shipping on the x^aper ; the house agreed to one, and then he introduced a bill, which was ordered to be read a second time on a futun^ day. It transpired, however, on the following day that he had in- advertently introduced a bill which was intended to be based on the second resolution, not then adopted by the 1 215 E. Hans. (3), 303. Also, 214 Ih. 194. ■■^ 107 E. Com. J. 207 ; 110 Ih. 199. This is douo tu imvcut :i iwival uf the bill during the same session. ■' 202 E. Hans. (3), 1716 ; Black niorc's Sp. D. [1.SS2], u4. * Canada rrovidont AesociationbilljSen. J. [18^2], 273-4,310 ; Hans. 09S. 558 I'UBIJC BILLS. lioiise. He was thorcupon allowed to withdraw the bill and introduce the one prop(;rly consequent upon the passage of the fir.st resolution.' XX. Expedition in passage of bills— It is the usual and cor- rect practice to allow a day or two to intervene between the different stages of bills ; but during the latter part of the session, when the house is anxious to dispose of the business before it, many bills are permitted to pass with unusual speed. The rules of the Senate provide : 41. "Eveiy bill is to undei'go three separate readings, each on a different day. 42. "Bills of an urgent nature are sometimes allowed to pass Avitli unusual expedition through their several stages." - And the invariable practice in the Senate is, whenever it is desired to read a bill more than once on the same day, to move formally the suspension of the rule, in conformity with the practice of the House of Lords." This practice, however, only applies to the case of readings ; when a bill has been read twice, the house may go immediately into committee thereon, without requiring the suspension of any rule.^ Eule 43 of the Commons provides : *' Ever}^ bill shall receive three several readings on different days, previously to being passed. On ui-gent or extraordinary occasions, a bill may be read twice or thrice, or advanced two or more stages on one day." 1 March 26, 1878. See Can. Hans. [1878] 801 for an illustration of a case where a private bill had been introduced before the application has been reported on by the committee on standing orders. Also. Can. Com. J. [1880], 59, 63 (marriage bill). - In the session of 1882, a motion was passed in the Senate to the effect that government bills should be deemed " urgent " in accordance with the 42nd rule. Sen. Hans. pp. 698-700, 705 ; Jour. 318. Notice was given of this motion, Min. of P., p. 504. •^ Sen. J. [1867-8], 293, 294, 299, 309, 312, &c. ; lb. [1878], 285-6 ; Ih. [1880J, 274, 275 ; lb. [1882], 56. ' lb. [1869], 226, 230 ; lb. [1878], 286. URGENCY. 559 "When the question has been raised in the Commons, it has been generally decided that it is for the house to declare whether there is such uTgency as to require the rapid passage of the measure ;' and whenever the sense of the house is to take more than one stage on the same day, the speaker has permitted it to be done. As a rule, bills in the English Commons pass through their various stages with an interval of a day or two between each. If a bill is amended in committee, it will not be considered immediately and read a third time on the same day except under exceptional circumstances. Towards the close of the session, however, bills which have not been amended in committee are frequently allowed to be read a third time forthwith.- " It was at the option of any hon. mem- ber," said Mr. Speaker Denison on one occasion, " if he thought it inconvenient or imi)roper, to interfere ; but il' the body of the house was satisfied that there was no objection, then it had not been uufrequent that a bill, if it had passed through committee without amendment or objection, should be read a third time and passed on the same day." On the same occasion the mover of the bill stated that he had given notice on a previous day that he should ask to be allowed to pass the bill through all its stages on that evening." In fact in England, as in thi.s • ountry, when urgency can be shown, the house will ' Can. Speak. D. Nos. 49, 139, 140; also, Can. Han.s. (1S78), 200G-7, 2157 ; also, 256 E. Hans. (3), 708. Speaker Brand said in 1880 : " It is occasion- ally the custom to pass bills through their difTerent stages at one and the same sitting. That course, however, is never taken except in case^ of extreme urgency, and with the general assent of the house." 254 E. Hans. (3), 009-10, 040. -R. 47 leaves it within the authority of the house to order the 3 K. immediately in such a case: "When a bill is reported without amend- ment, it is forthwith ordered to bo read at such time as may bo ajipointed by the house." Can. Hans. (1879), 1575, marine electric telegraphs bills. ^ 184 E. Hans. (3), 2107. See also, ^Ir. Speaker Macpherson's decision ; Sen. Deb. (1880), 210. 560 I'Uiujd jJiLLs: allow a bill to jxij-s through several stages' (except money bills of course)" on one day ; but such occasions seldom arise, and the wise practice is to give full consideration to every measurcv XXI. Bills, once introduced, not altered except by authority of House.— AVhile a bill is in progress in the Commons, no alteration whatever can be made in its provisions except l)y the authority of the house. If it should be found that a bill has been materially altered since its introduc- tion it will have to be withdrawn." A clerical alteration^ liowever, is admissible.^ If it be necessary to make any changes in a bill before the second reading the member in (^harge of it will ask leave to " withdraw the bill and pre- sent another instead thereof."^ In the Canadian house, 18*74, the order for the second reading of a bill relative to usury was discharged, and the bill withdrawn. On the Ibllowiug day, the member interested in the bill was given leave to bring in another on the same subject, but with an amended title.'' In the session of 1883, the atten- tion of the speaker was directed to the fact that the repre- sentation bill had been materially altered since its intro- duction, and that it was not, in consequence of such alte- rations, the same bill that had been presented a few days before to the house. Mr. Speaker Blanchet at once decided that the bill could not be allowed to proceed, and that it was necessary " to follow strictly thereafter the practice of the English Parliament and not permit any changes, except mere clerical alterations, in a bill when once regu- ' May says " there are no orders to be found in the journals which for- l.iid the passing of bills in this manner," p. (iOO. Also, 244 E. Hans. (3), H91-2. '^ See mj^ra, p. 498. No instance of this course being taken in England with regard to money bills. 239 E. Hans. (3), 1419. '' 215 E. Hans. (3), 300. * 108 lb. 969 ; 237 lb. 3G2-3. * 111 E. Com. J. 211-3 ; 117 lb. 202 ; 132 lb. 84, 243. « Can. Com. J. (1874), 123, 120. CORRECTION OF MISTAKES. 561 larly before the house." The bill was accordingly with- drawn and another immediately presented.^ No notice need be given in such cases, as the original order of leave for the introduction is still operative.^ XXn. Mode of correcting mistakes during progress of a Bill.— Sometimes mistakes are discovered in bills after they have been sent up to the other house. For instance bills may be sent without having passed all their stages, or without certain amendments that had been made therein. When a bill has been sent up by mistake to the Lords without certain amendments, a message has been transmitted to that house asking them to make the necessary amend- ments, either by adding the requisite provisions, or by expunging certain clauses or parts of clauses.'^ When a bill has been sent up without having been read a third time, a message has been received for its return ; and in such a case, if the house agree to the request, the bill will be discharged from the orders.' On another occasion when several amendments made by the Commons were not in the bill sent to the Lords, the former have trans- mitted a correct copy of the bill.' In the session of 1875, a bill " to incorporate the Royal Mutual Life Assurance Company of Canada " was amended in the Senate and sent back to the Commons, where the amendments were con- curred in. Subsec[uently the House of Commons was in- I'ormed by message that an amendment to the title had been inadvertently left out in the copy of the bill sent ' Can. Com. J. (1882), 40G. ■^ 215 E. Hans. (3), 307 ; supra, p. 537. =* 78 E. Com. J. 317 ; 91 lb. 639 ; 92 lb. 609, 646 ; 100 Ih. S04. * 75 E. Com. J. 447 ; 80 Ih. 312 ; 92 lb. 572. ^ 101 Ih. 1277. In the old Canadian lefrislature the practice was gener- ally to a.sk for the return of a l)ill, when it had been sent up without amend- ments or was otherwise inai'curato. Leill8 passed up to that time.' Sometimes in a great public emergency it is necessary to give immediate effect to an act. This was done in the session of 1870 — the year of the Fenian difficulties — when a bill " to authorise the apprehension and detention of persons suspected of committing acts of hostility or conspiring against her Majesty's person and government" was passed through all its stages and received the royal assent on the same day." In 18Y3, 18*78, and 1880, 1880-1, and 1882, a number of bills were assented to in the course of the session.* On such occasions, when the House of Commons returns from the Senate chamber, the speaker (who has received a list from the clerk of the Senate) will report the acts to the house, so that the titles may appear on the journals.' When any bills have been reserved the titles have also been read by the clerk of the crown in chancery, and the clerk of the Parliaments has announced the fact in these words in the two languages : "His Excellency, the Governor-General, doth reserve these bills for the signification of her Majesty's pleasui'e thereon." The following are the sections in the British North America Act, 1867, which refer to the royal assent and to reserved bills : 55. " Where a bill passed by the Houses of Parliament is pre- sented to the governor-general for the queen's assent, he shall declare, according to his discretion, but subject to the provisions of this act and to her Majesty's instructions, either that he assents thereto in the queen's name, or that he withholds the queen's assent, or that he reserves the bill for the signification of the queen's pleasure. 1 Can. Com. J. [1867-8], 134. ^ lb. [1870], 18«-8. ^ lb. [1873], 265; lb. [1»78], 177; J b. [ISSO], 179, 288 ; lb. [1880-1], 201 ; Sen. J. [1882], 69. * Can. Com. J. [1878], 177 ; 131 E. Com. J. 103, &c. RESERVED. 561> 56. "Where the governor-general assents to a bill in the queen's name, he shall, by the lirst convenient opportunity, senil an authentic copy of the act to one of her Majesty's principal secretaries of state, and if the queen in council within two years after receipt thereof by the secretary of state thinks fit to dis- allow the act, such disallowance (with a certificate of the secre- tary of state of the day on which the act was received by him) being signified by the governor-general, by speech or message to «ach of the houses of the Parliament, or by proclamation, shall annul the act from and after the day of such signification. 57. " A bill reserved for the signification of the queen's plea- sure shall not have any force unless and until within two years from the day on which it was presented to the governor-general for the queen's assent, the governor-general signifies by speech or message to each of the Houses of the Parliament or by proclama- tion that it has received the assent of the queen in council. An •entry of eveiy such speech, message, or proclamation, shall be made in the journals of each house, and a duplicate thereof dulj^ attested shall be delivered to the proper officer to be kept among the records of Canada." The foregoing sections are also found in the union act of 1840, and the constitutional act of ItOl.' The governor- general's instructions, previous to 1878, directed him not to assent in her Majesty's name to any bill within the following classes : 1. Any bill for the divorce of persons joined together in holy matrimony. 2. Any bill whereby any grant of money or land, or other do- nation or gratuity, maybe made to the governor. 3. An}'- bill whereby anj^ paper or other currencj' ma}^ be made a legal tendei-, except the coin of thei-ealm or other gold or silvei- coin. 4. Any bill imposing difi'ercntial duties. 5. Any bill, the provision of which shall ajjpear inconsistent "with obligations imposed on the sovereign by treat3^ ' 3 & 4 Vict., c. 35, 88. 37, 38, 39 ; 31 Geo. III., c. 31, ss. 30, 31, 32 (mpra, •p. 17). Soo also, 14 Goo. III., c. 83, s. 14, as to his Majesty's approval of ordinances passed by the legislative council of those days ; mpra, p. 11. r)70 PUBLIC BILLS. 6. Any l>ill iiiterfci-in^- Avilli the discipline or control of her JEajeHty's forces in the dominion by sea and land. 7. Any bill of an extraordinary nature and importance, whei-e- by the i-oyal prerogative, or the rights and property of her Ma- jesty's subjects not residing in the dominion, or the trade and shipping of the United Kingdom, and its dependencies may be |irejiidiccd. 8. Any bill containing provisions to which our assent has been once refused, or which has been disallowed by the queen. " Unless such bill shall contain a clause suspending the opera- tion of the same until the signification in our said dominion of our pleasure thereupon, or unless you shall have satisfied yourself that an urgent necessity exists, requiring that such bill be brought into immediate operation, in which case you are authorized to assent in our name to said bill, unless the same shall be repug- nant to the law of England, or inconsistent with any obligations imposed on us by treaty. But you are to transmit to us, by the- earliest opportunity, the bill assented to, together with your rea- sons for assenting thereto."^ Ill accordance with these instructions the governor- general, between 1867 and 1878 inclusive, reserved twenty-one bills of the Parliament of Canada." Of these eleven related to divorce, and received the assent of the queen in council with little or no delay."* Among the other bills was one to reduce the salary of the governor-general, to which her Majesty's advisers re- fused to give their approval, on the ground that a reduc- tion in the salary would place the high office in question in the third class among colonial governments. In 1869, the dominion Parliament passed a bill, re-enacting the clause in the imperial statute of 1867, fixing the salary at .£10,000 sterling ; and this act subsequently became law 1 Sen. J. [1873], 74 ; Sess. P. 1867-8, No. 22. - See Sen. and Com. J. of 1867-8, 1869, 1872, 1873, 1874, 1875, 1877 & 1878. ' See the case of the Harris divorce bill disallowed in 1845, because the parties were not at the time domiciled in Canada — Mr. Harris being an officer in tlie army — and the courts of law would not on that account consider such an act as a valid divorce. Can. Leg. Ass. .7. [1846], 29. RESERVED. 571 though it too was reserved, in accordance with the royal instructions/ In 1872, a bill respecting copyrights was reserved, and never received the approval of the imperial government because it conflicted with imperial legisla- tion." In 1867-8, the governor-general reserved a bill "respect- ing the treaty between her Majesty and the United States of America, for the apprehension and surrender of certain offenders " ; but, whilst necessarily reserved under the royal instructions, it subsequently received the royal as- sent as it was within the jurisdiction of the Canadian Parliament, and in accordance with the treaty obligations of England."* In 1873 and 1874, two other bills on the subject of extradition generally were reserved, and have never become law, though the dominion government has contended that it has full ]30wers to deal with the c[ues- tion.^ In 1874, a bill to regulate the construction and mainte- nance of marine electric telegraphs was reserved, because it might " possibly be considered to prejudice the interests and rights of property of her Majesty's subjects not resid- ing in Canada," as provided against in the seventh para- graph of the royal instructions ; but all difficulty was removed by the passage of another bill in a subsequent session, in order to meet the views of the opposing par- ties.^ In 1873 and 1878, the governor-general reserved three bills : 1. An act respecting the shipping of seamen ; 2. An act relating to shipping, and for the registration, inspection and classification thereof ; 3. An act to repeal section 23 of " the merchants' shipping act, 1876," as to ' 32-33 Vict., c. 74 ; Can. Scss. P. 1860, No. 73. See proelainatioii in the Canada Gazette, Oct. 16, 1869, and Can. Stat. 1870. * Can. Sess. P. 1875, No. 28. =* 31 Vict., e. 94, amended by 33 Vict., c. 25. * See Totld, Pari. Govt, in the colonies, 204, ct scq. ; Can. Boss. P. 187(),. No. 49 ; lb. 1877, No. 13, pp. 10-18. *38 Vict., c. 26 ; Can. Soss. P. 1875, No. 20 ; //'. 1877, No. 119. 572 j'cnijr hills. ships in Canadian waters. The first two acts subse- quently received the royal assent in council, and procla- mation thereof was duly made by the governor-general in the Canada Gazette,^ but the third act (of 1878) never became law, as it was considered to contain provisions in excess of the powers of the Canadian Parliament.^ Since the session of 1878, no bills have been reserved, but the royal instructions have been amended in certain material particulars. These instructions were originally framed for provinces and colonies possessing limited powers of self-government, and could not possibly apply to a dependency of the Crown, " which is entitled to so full an application of the principles of constitutional freedom as the dominion of Canada."' "When the commission and instructions of the governor-general -^vere at last revised, the imperial authorities recognized the peculiar position of Canada and omitted the clause in the instructions relating to bills. These and other changes were the result of the action of the government of Canada in 1876 and 1877, when the minister of justice (Mr. Blake) made various suggestions, in an elaborate state-paper, which were prac- tically adopted by the imperial ministry. In his memo- randum on the subject he directed attention to the fact that " it would be better and more conformable to the spirit of the constitution of Canada, as actually framed, that the legislation should be completed on the advice and responsibility of her Majesty's privy council for Can- ada ; and that as a protection to imperial interests, the reserved power of disallowance of such completed legisla- tion is sufficient for all purposes." In the final despatch on the subject, the colonial secretary of state stated that ^ See beginning of statutes of 1874. It lias been the practice to print reserved bills, when subsequently sanctioned by the Crown in this way, in the statutes. The proclamation alwaj'S appears in the Canada -Gazette. - Todd, Pari. Govt, in the colonies, 150. ' Can. Sess. P. 1877, No. 13, p. 4. IMPERIAL POWER OF DISALLOWANCE. 5lS the clause in the former royal instructions, requiring that certain classes of bills should be reserved for her Majesty's approval, " was omitted from the revised instructions, be- cause her Majesty's government thought it undesirable that they should contain anything which could be inter- preted as limiting or defining the legislative powers con- ferred in 1867 on the dominion Parliament."' Since 1878, an act passed by the Parliament of Canada to effect a judicial separation of certain parties from the bonds of matrimony has received the assent of the gover- nor-general, though it would have been reserved in pre- vious years, in accordance with the old instructions.- It is now understood that the reserved power of disal- lowance which her Majesty in council possesses under the law, is sufficient for all possible purposes;^ This power of disallowance can be exercised, not merely in cases where imperial interests are afiected, but even in matters of a purely local character, when it is shown that the act is beyond the jurisdiction of the dominion Parliament. For instance, in 1873, the imperial government disallowed an act " to provide for the examination of witnesses on oath by committees of the Senate and House of Com- mons in certain cases," on the ground that it was beyond the competency of the Parliament of Canada. As shown elsewhere, doubts were expressed in the house during its passage as to its legality ; but the governor-general, in view of the necessity that existed at that time for the measure, gave the royal assent, and then directed the attention of the imperial authorities to the subject, with the result just stated.^ This precedent shows the value > Can. Sess. P. 1877, No. 13. See despatch of Sir Michael Hicks Beach, colonial secretary of state, 3rd of May, 1879 ; Can. Sess. P. 1880, No. 51 (not printed). '' 42 Vict, c. 79 ; Sen. Deb. [1879], 287. 3 Can. Sess. P. 1877, No. 13, p. 9. * Can. Com. J. 1873, 2nd sess., 5, ct scrj. See supra, p. 459, whore 11 lo liistory of the act is given. 574 I'liiLic niLLs. of tho pow«M" of disallowance under certain circumstances, and that it is equal to all exigencies. In accordaiK'i; with estaljlished usage no act of the Par- liament of C-anada can be disallowed, except upon the issue of an order of the queen in council.' The mode of informing Parliament of the disallowance has already been given in section 56 of the British North America Act.^ Acts are sometimes passed with suspending clauses ; that is, although assented to by the governor-general they do not come into operation or take eiFect in the dominion until they shall have been specially confirmed by her Majesty in council. In this way, bills are practically reserved, since it is only by order in council that they become law. When approved and confirmed by the Crown, a proclamation will appear in due form in the Gazette, to bring the act into force.' The following is the only paragraph in the amended instructions that refers to legislation in Canada : IV. " Our said governor-general is to take care that all law^ assented to by him in our name, or reserved foi- the signification of our pleasure thereon, shall, when transmitted by him, be fairly abstracted in the margins, and be accompanied in such cases as may seem to him necessary, with such explanatory observations as may be required to exhibit the reasons and occasions for pro- posing such laws ; and he shall also transmit fair copies of the jom-nals and minutes of the proceedings of the Parliament of our said dominion, which he is to require from the clerks or other proper officers in that behalf, of the said Parliament." The same paragraph has always appeared in substance in the instru.ctions issued to the governor-generals of Canada since 1763.^ An act of the Parliament of Canada 1 Col. regulations, No. 51 ; col. office list, 1883, p. 256. 2 Can. Com, J. 1873, 2nd sess., p. 5 ; Sen. J. p. 14. See Leg. Ass. J. 1860, p. vi. for a proclamation disallowing a Canadian act. * Col. regulations, No. 49 ; col. office list, 1883, p. 256. See 33 Vict., c. 14, 8.3. * See copy of instructions issued to Governor IMurray, 7th of Dec, 1763, in Doutre et Lareau, Histoire du Droit Canadien, vol. i., p. 556. liOYAL ASSENT. 575 requires the clerk of parliaments to certify and deliver to the governor-general a bound copy of the statutes for transmission to one of the secretaries of state, as required by section 56 of the B. N. A. Act, together with, certified copies of all reserved bills. ' Hatsell quotes Sir Edward Coke as saying in 1621 : " AYhen bills have passed both houses, the king's royal assent is not to be given, but either by commission or in person, in the presence of bo/h houses.'' In his comments on this point, Hatsell shows that " the law of this realm is. and always hath been" to this effect." The British North America Act, like previous imperial statutes providing constitutions for Canada, is silent on the question ; but it has always been the practice to follow the ancient usage of the parent state in this respect, and to give the assent •of the sovereign in the upper chamber in the presence of both houses. In 1841, the governor-general. Lord Sydenham, was un- able to come down to the legislative council, but sent a message on the I7th of September requesting the mem- bars of the two houses to adjourn on the afternoon of that day to government house, where he would declare the royal pleasure on the bills passed that session. But in consequence of the serious turn his illness had taken (he died two days later) the assent could not be given at government house. On the 18th of September a deputy- governor formally assented to all the bills in the chamber of the legislative council.' In this case it will be seen that the proposed departure from constitutional usage was only as to the place where the assent was to be given. '35 Vict., c. l,s.4. ■^ 2 Hatsell, 338. Dr. Todd does not consider the practice of giving the assent in the presence of the two houses as "essential" (Pari. Gov. in the Colonies, 131). The practice, however, in this country has been uni- form in accordance with the wise jirinciplo of following British consti- tutional usage in the o{x)ning and closing of the legislatures of this .country. •■' Leg. Ass. J. [18-11], 638, 040. r)76 rrnrjc bills. In 18*70, :i dcacl-lock occurred between the two houses ill Ihc province of QnobcK-, and the assembly adjourned lor two months, l)ut th(^ council remained in session for some time later. The lieutenant-governor came down to the council chamber a few days after the adjourjiment of the ass(Mnbly, and gave the royal assent to the bills passed up to that time. The speaker, and officers of the house, including the serjeant-at-arms with the mace, w^ere pre- sent outside of the; bar. Subsequently, when the assembly met, it was proposed to pass a bill to remove doubts as to the legality of the assent, but the session came to a pre- mature close on account of the defeat of the ministry, before any measure could become law. When the lieu- tenant-governor prorogued the legislature, he gave the assent again to all the bills in the presence of the two houses — his previous proceeding being deemed insuffi- cient.' Should a bill receive the royal assent without having, through some inadvertence, passed through all its stages in the two houses, then a serious question as to the vali- dity of the statute may arise. Cases of this nature have occurred in the parliamentary practice of England and Canada. In 1829, the Lords amended a Commons' bill relating to the employment of children in factories, but did not send it back that the Commons might consider it as amended. After it had received the royal assent, the speaker of the Commons drew attention to the mistake. The amendment was agreed to by the house, after a con- ference on the subject, and a bill was passed to render valid and effectual the act in question. In 1843, Mr. Speaker Lefevre called attention to the fact that the School- masters' Widows' Fund (Scotland) Bill had been returned ' Quebec Leg. Coun. J. [1879], 208, 221 ; Ass. J. 350, 352 ; Montreal Gazette and ILrald, Oct. 28, and Nov. 1. It is stated on the anthority of tlie first paper that -when the speaker presented himself on the first occa- sion of the assent being given, he did not occupy the place specially provided for him at such ceremonies. THE ASSENT IN THE LOCAL LEGISLATURES. 577 by the Lords to the Commons with amendments, but be- fore these were agreed to, it was taken up by mistake to the other chamber, and though it had not the usual endorsement, a ces amendment les communes sont assentus, the mistake was not noticed, but the bill received the royal assent in due form. In this case also, a new act was con- sidered necessary to give validity to the measure.' In 1877, the lieutenant-governor of Quebec assented to a bill intituled " an act to provide for the formation of joint-stock companies for the maintenance of roads and the destruction of noxious weeds," though it had only been read twice in the assembly. Apparently in the hurry of the last hours of the session, the clerk, by mistake, had certified it as passed without amendment. The error was immediately discovered by the attorney-general, who made a report to the authorities at Ottawa, and suggested that the act be disallowed. The minister of justice (Mr. Blake) declined to take this course because the bill was not an act, but only so much blank paper. He pointed out that, according to precedent, an act might be passed in the legislature to declare the act to be invalid, and that, meanwhile, it was in the power of the lieutenant- governor in council to refrain from putting it into opera- tion. The Quebec government concurred in this opinion, and directed that the act should not be printed among the statutes of the session.^ It will be remarked that, in the English cases cited above. Parliament was sitting when the mistakes were discovered, and was able to provide against the difl5.culty that might arise. In the Quebec case, the government had to deal with it at once on their own responsibility. XXVI. The Assent in the Provincial Legislatures.— AVhih^ the governor-general, and the lieutenant-governors of Ontario, Quebec, Manitoba and British Columbia assent to bills 1 69 E. Hans. (3), 427. See Bourko's Precedents, pp. 64-6. May, 601-3. * Can. Com. Scss. P. 1879, No. 19, p. 20, and No. 26. 37 578 PUBLIC BILLS. in her Majesty's nain(^ a difna'oiit practice prevails, now as before confederation, in the maritime provinces of the dominion. In Nova iScotia, New Brunswick, and P. E. Island, the lieutenant-governors give the assent in their own names ; the reasons for this difference of practice have never been authoritatively explained. By section 90 of the B. N. A. Act, 1867, it is provided that the provisions of sections 55, 56 and 57, are " made applicable in terms to the respective provinces and the legislatures thereof, with the substitution of the ' lieuten- ant-governor ' of the province for the 'governor-general,' of the ' governor-general ' for the ' queen ' and for a 'secretary of state,' of 'one year,' for two years, and of the province for " Canada.' " Consequently it is now within the discretion of a lieutenant-governor in any province, when any bill is presented to him for the neces- sary assent, to reserve the same " for the signification of the pleasure of his Excellency the Grovernor-G-eneral thereon." Such a bill cannot go into operation unless, within one year from the date of its having been reserved, the governor-general shall issue his proclamation inti- mating that it has received the assent of the governor in council.' The governor-general in council also possesses the same power with respect to provincial acts that her Majesty in council can exercise in the case of dominion acts, and may at any time within a year from the passing of a provincial act, disallow it for good and sufficient reasons." This important subject is briefly reviewed in the first chapter of this work. The lieutenant-governors of all the provinces fre- quently reserve bills for the consideration of the gover- nor-general in council.^ In Nova Scotia, New Brunswick, ^ These pi'oclaniations always appear in the Canada Gazette and Canada Statutes. ■^ See Canada Gazette, Dec. 4, 1869, p. 386. ' Nova S. Ass. J. [1869], 126 ; New B. Ass. J. [1874], 224 ; P. E. I. Ass. J. [1879], 229 ; British C. Ass. J. [1873], 79 ; Man. Ass. J. [1879], 83 ; Ont. Ass. J. [1873], 374 ; Quebec Ass. J. [1878], 213. RESERVED OR VETOED. 579 ■and P. E. Island — but not in the other provinces — they have also, on several occasions, withheld their assent from bills passed by the legislature ' — a power not exercised by the Crown in England since the days of Queen Anne.- The power is, however, expressly given to them as well as to the governor-general by sections oo and 90 of the British North America Act ; but the latter has -never given the veto to an act of the Parliament of the dominion. Nor can we find any example of the exercise of the power in the records of the old legislatures of Canada, even in those times when the constitutional rights of the colony were limited. The minor power of reserving bills was always considered quite sufficient in those times,'^ just as it is now in the provinces of Quebec and Ontario. Section 55 of the British North America Act now applies expressly to the provinces of the dominion, and conse- quently in reserving, or withholding the assent from bills the lieutenant-governors are to act not merely on their own " discretion,'' but " subject to instructions " which must necessarily emanate from the governor-general in council, since these high officials now occupy the same rela- tion towards the dominion government that the gover- nor-general occupies towards the imperial authorities.' > Nova S. Ass. J. [1875], 124 ; New B. Ass. J. [1870], 229 ; P. E. I. Ass. J. [1880], 284. Soo also, Nova Scotia J. for 1879 and 18S3 ; New Bruns- wick J. for 1871, 1872, 1875, 1877 and 1882. '^ In 1707, in the case of a bill respecting the mililia in Scotland. See 18 Lords' J. 506. ^ Between 1836 and 1864, three hundred and forty -one bills of the legis- latures of the provinces of British North America were reserved or sus- pended in their oix3ration, but the number diminished witii the establish- ment and in the operation of responsible government. E. Com. P. 1864, vol. xl., p. 665 ; Todd, Pari. Govt, in the Colonies, 140. * " The provision in the B. N. A. act, 1867, that the governor-general may reserve a bill for tlio signification of her ^lajesty's plea.suro was solely made with a view to protection of imi^erial interests, and the maintenance of imix)rial policy, and in case the governor-general should exercise the l)0wer of reservation conferred on him, he would do so in his capacity as an imperial ollicer and under royal instructions. So in any province the 580 rUHLKJ BILLS. Ill tho absonce of these instructions, they are thrown on their own discretion and forced to come to a conclusion on such matters with the assistance of any advice that their ministry may give them under the circumstances. But whilst we may, by reference to the past practice of governor-generals in Canada come to some conclusion as to the position of lieutenant-governors with reference to reserving bills, we have nothing whatever before us as a guide to the principles which influence these function- aries in the not unfrequent exercise of the extreme power of veto. The section in question makes instructions as necessary, in the case of withholding assent, as in that of reserving bills. It might be supposed that the exercise of the minor power of reserving bills for the conside- ration of the governor-general, would suffice to meet the most extreme case where dominion interests would be imperilled by provincial legislation. In fact, the his- tory of " disallowance " shows that the general power possessed by the general government of annulling such provincial acts as are considered objectionable is quite sufficient to meet all possible exigencies that may arise. Under these circumstances, it is impossible to arrive at any definite conclusion as to the necessity that exists for using at all so extreme a power. All that can be assumed is that, if the lieutenant-governors do not exercise the power by virtue of the instructions to which they are certainly subject under the British North America Act, then they are obliged at times to use their own discretion^ under very exceptional circumstances, in order to prevent the further progress of measures, which contain provi- sions clearly unconstitutional or injurious to the interests lieutenant-governor should only reserve a bill in his capacity as an officer of the dominion, and under instructions from the governor-general." Sir John A. Macdonald, minister of justice, in his rej^ort on the Ontario Orange bills of 1873, Out. Sess. P., 1st sess., 1874, No. 19. Also, Can. Sess. P., 1882, No. 141. THE VETO IN CERTAIN LEGISLATURES. 581 of the dominion, whose officers they are.' In this way they can no doubt relieve the general government of a delicate responsibility which otherwise would devolve on it. The position of a lieutenant-governor's advisers, under these exceptional circumstances, is very difficult to explain in accordance with the principles of responsibility that govern a ministry in their relations with Parliament and the head of the executive. It is not possible to suppose in these times that a bill passed by the Lords and Com- mons should be formally presented to the sovereign to be refused ; for such a proceeding would be an acknowledg- ment that the ministers who advised it were no longer responsible for legislation, did not enjoy the confidence of Parliament, and consequently were not in a position to advise the Crown. But there is just this to be said when we come to consider the position of the lieutenant-gover- nors : they are officers of the dominion, and bound to consider its interests in all legislation that comes under their review. Circumstances, therefore, may arise when a provincial administration may think themselves justified in concurring with the opinion of a lieutenant-governor, or even in extraordinary cases advising him, that a bill should not be assented to. The fact that no issues have yet been raised in the provincial legislatures as to the ex- ercise of the veto is, perhaps, so much evidence that it may have its value, though it is not possible to explain satisfactorily the principles on which it has been or may be used.- ' See Todd, Pari. Govt, in the colonies, p. 39G, where ho endeavours to •explain the position of one lieutenant-. ^ 31 Vict., c. 1 ; in conformity with the imperial statute 13 & 14 Vict., c. 21. See Can. Com. .J. 1879, petroleum acts; 1882, Ontario Bank; 1883, booms and works in navigable waters bill. ^ 46 Vict., c. 1 ; other amendments were made in the act of 1867-8, but they do not require special mention here. ^ For instance, the Liquor License Act (46 Vict., c. 30, s. 147) was only to come into force on the 1st of January, 1884, and the licenses thereunder on the 1st of May in the same year. THE STATUTES. 583 XXIX. Distribution of the Statutes.— Certain acts passed since 186t provide for the printing and distribution of the statutes of Canada by a queen's printer. They are printed in the two languages, in two separate parts or volumes, the first of which contains the general public acts of Canada, and .such orders in council, proclamations, trea- ties, and acts of the Parliament of Great Britain, as the governor in council may deem to be of public interest in the dominion. The second volume contains the local and private acts. These two volumes are generally bound in one, and distributed to membersof the two houses, admin- istrative bodies, public departments and officials, in ac- cordance with a list arranged in council ; and the mode of distribution is annually reported to Parliament. Acts may be published in the Gazette previous to their publi- cation in the printed volumes.^ All the original acts of the Parliament of Canada, of the legislatures of Canada and of the late provinces of Upper Canada and Lower Canada, as well as all disallowed and reserved bills, remain in the custody of the clerk of the Parliaments, who can furnish certified copies to those persons who may require them." ' 38 Vict., c. 1, in amendment of 31 Vict., c. 1. See mpra, p. 288 n. as to the ollice of queen's printer. - 35 Vict., 0. 1. See mpra, p. 159 as to the duties of the clerk of the Parhaments. CHAPTER XIX. PRIVATE BILLS. I. Importance of private bill legislation. — 11. Definition of private bills. — III. Questions of legislative jurisdiction arising out of private legislation in Parliament. — IV. Reports of Supreme Court of Canada on private bills. — V. Questions of jurisdiction referred to standing orders com- mittee in Senate. — VI. Classification of private bills ; Hybrid bills, etc. — VII. General public acts affecting corporate bodies. — VIII. All acts deemed public, unless otherwise declared. I. Importance of private bill Legislation.— I u a country like Canada, with its immense extent of territory and varied material resources, private bill legislation must necessarily form a very important part of the work of the Par- liament and the legislatures of the dominion. One of the advantages of the federal union has been the distribution among several legislative bodies of an immense amount of work that otherwise would have embarrassed a single legislature. One of the difficulties which the Imperial Parliament has had to encounter for a long while back is the impossibility of dealing practically or satisfactorily with the numerous matters of local or muiiicipal or private interest that are constantly pressing upon its attention. Such a difficulty has been successfully surmounted by the Canadian system of confederation which, to speak in general terms, gives to each province control over all sub- jects of a purely local or provincial nature and to the domi- nion jurisdiction over all matters of a general and wider interest. Since 1867, the dominion Parliament has passed more than fourteen hundred acts, of which six hundred and fifty have been for private objects in the parliamentary sense DEFINITION. 585 of the term ; that is to say, for the iucorporation of railway, land, insurance, and other companies and bodies, many of which illustrate the development of the country from a material, intellectual and social point of view. During the same period, the legislatures of the provinces of Canada have passed, in the aggregate, between six and seven thousand acts,^ of which upwards of two-thirds relate to local or private objects. These figures show not only the legislative activity of Canada, but the value of local or provincial freedom of action in all matters that necessarily and i^roperly fall within the constitutional functions of the several legislatures. II. Definition of Private Bills.— Private bills are distinguished from public bills inasmuch as they directly relate to the affairs of private individuals or of corporate bodies, and not to matters of public policy or to the community in general. They must j)ass through the same stages as public bills, but at the same time are subject to various standing orders in both houses of Parliament. Certain judicial functions have been entrusted to committees to which all petitions and bills of a private nature are referred, under the rules, with the view of carefully pro- tecting all the interests involved in the proposed legisla- tion. The parties whose private interests are to be pro- moted appear as suitors before a select committee, to whom the bill has been referred, whilst those who apprehend any injury, and are opposed to the legislation sought for, are admitted as adverse parties in the suit. The analogy which the ^proceedings bear to those of courts is sustained by the fact that certain fees must be paid by the pro- moters of a private bill before tlie house will permit its passage. All persons whose interests are affected by the measure must have due notice of its nature, so that they may have every opportunity to present themselves before ' See supra, \\ "i ''• 586 PRIVATE BILLS. the house unci dispute, ii" necessary, its passage.* It will })C the ol)ject of the writer to explain as clearly as possible in the following pages the rules and practice of the houses with respect to this important class of bills. III. Questions of Legislative Jurisdiction.— Sections 91 and 92 of the British North America Act enumerate the various matters assigned to the jurisdiction of the Parliament and legislatures of the dominion. Among the matters within the exclusive jurisdiction of the general legislature we tind the following, which embrace the various subjects which properly fall within the category of private bill legislation : " 13 Ferries between a province, and any British or Foreign country, or between two provinces. 15. Banking, incorporation of banks, and the issue of paper money. IG. Savings-Banks. 22. Patents of invention and discovery. 25. Naturalization and aliens. 26. Marriage and divorce. 29. Such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this act assigned exclusively to the legislatures of the provinces ; and any matter coming within any of the classes of subjects enumerated in this section (91) shall not be deem'ed to come within the class of matters of a local or private nature comprised in the enumera- tion of the classes of subjects by this act assigned exclusively to the legislatures of the provinces." By section 02 the provincial legislatures may exclusively make laws in relation to the following subjects : " 10 Local works and undertakings other than such as are of the following classes. (a) Lines of steam or other ships, railways, canals, telegraphs ' Courts of ecinitj- also look upon the solicitation of a bill in parliament in the light of an ordinary suit, and will in a proper case restrain the promoters by injunction from proceeding with a bill. May, 756. LEGISLATIVE JURISDICTION. 58T and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province. (b) Lines of steamships between the province and any British or Foreign country. (c) Such works as, although wholly situate within the pro- vince, are before or after their execution declared by the Parlia- ment of Canada to be for the general advantage of Canada, or foi- the advantage of two or more of the provinces. 11. The incorporation of companies with provincial objects. 16. Generally all niattei-s of a merely local or private natui'e in the province." Though the constitutional provisions, just cited, have been framed with the avowed object of clearly defining- the respective limits of dominion and i^rovincial legisla- tion, yet sixteen years' experience has proved incontestably that there is still much uncertainty as to the rules and principles that ought to govern the question of jurisdic- tion. In every session of Parliament, the issue has come up for discussion and from the difference of opinion that prevails in many cases it is easy to see that the question of jurisdiction is of a very perplexing character, even to those who have assisted in framing the constitution itself. So far as the writer, however, is concerned, he proposes to confine himself simply to a review of the legislation that has been at different times the subject of debate, and in this way show the tendency or direction of the legisla- tion of the Parliament of the dominion. During the first session of Parliament doubts arose as to the jurisdiction of the general legislature with respect to certain bills for the incorporation of railway, insurance, building and other companies. Ivailways, canals, tele- graphs, and other works or undertakings, connecting a province with one or more of the provinces, or extendinu- beyond the limits of a province, are expressly reserved for the jurisdiction of the general legislature. But in the case of railway companies within a single province, like 588 riUVATK It ILLS. lli»i St. Lawrence iiiid Ottawa railway, which runs from Otlawa to Prescott on the St. Lawrence, or the Northern railway, which runs from Toronto to the north of Ontario,' it has been found necessary to declare them to be " for the general advantage of Canada," or "for the advantage of two or more provinces," in conformity with sub-section 10 of section 92, cited above. Since 1867, forty-eight char- ters have been granted to railways, expressly declared to be for the general advantage, or benefit, or interests of Canada. Some of these roads have been incorporated in the first instance by the provincial legislatures, but they have found it expedient to come under the provisions of the Act, in order to obtain extended powers. The policy of Parliament has been for sixteen years in the direction of practically controlling the entire railway system of the dominion, and during the session of 1883 the government brought in a bill," which became law, with the object of giving effect to that policy. It is expressly declared to be " for the better and more uniform government of rail- ways " that the G-rand Trunk, Great Western, Intercolo- nial, North Shore, Northern, Hamilton & North Western, Canada Southern, Credit A' alley, Ontario & Quebec and Canada Pacific railways, as well as all branch lines now or hereafter connecting with or crossing these railways or any one of them, " are works for the general advantage of Canada within the meaning of the British North Ame- rica Act." Acts of the local legislatures, authorizing the construction and running of railways and branch lines, ^re to remain valid, but these roads are to be subject hereafter to the legislative authority of the Parliament of Canada. By this law, some sixty-four Canadian railways have been already declared to be works for the general advan- ^ 31 Vict., cc. 20 and 86. - 46 Vict., c. 24. " An act further to amend the Consolidated Railway Act of 1879, and to declare certain line^ of railway to be works for the general ad vanta^'c of Canada." LEGISLATIVE JURISDICTION. 58^ tage of Canada, or of two or more provinces, and made subject, so far as the statute can make it, to dominion ix)ntrol/ The question was raised during the passage of the bill, whether the effect of so wide a provision was not practically to destroy the efficiency of provincial juris- diction and control in the important matter of provincial railways ; but it was urged on the other hand that there were manifest public advantages in having all the rail- ways of Canada, as far as possible, under one control, especially in view of the fact that Parliament had here- tofore been powerless to deal with many matters requiring legislation, in the general interest of the country." It was not denied, however, even by the most earnest advocates of provincial rights that the dominion Parliament has full power to declare that a work is for the general benefit of Canada, and when it has been so declared, it may be assumed to be under dominion control. Of course, Parlia- ment should exercise that power bona fide, and not declare arbitrarily what railways are works for the general advan- tage of Canada.^ It is obviously difficult to draw the line, for there can be very few railways which may not be brought, for sufficient reasons, within the very wide scope of the section of the British North America Act giving Parliament the right to deal with such subjects. As a question of conveniency there can be no doubt that the policy of the dominion Parliament has decided advan- tages ; and the only question is how far it can be carried without infringing provincial legislation with respect to local railways. ' In answer to an inquiry, the minister of railways, Sir Charles Tapper, stated that the roads oxce])ted were the Carillon and Grenville ; Frederic- ton, New Brunswick and Canada ; St. John and INIiiine ; Waterloo and Magog ; Western Counties ; Grand Southern ; Windsor and Annapolis railways ; but more than one of these it was added would probably be brought into the general category of dominion lines by legislation before the house. Hans. [1883], 1302. •^ Can. Hans. [1883], 1293-1304. 3 Can. Hans. [1883], 1294. ;)r»0 I '111 V ATE HILLS. Siucc 18<)7, tli<' liouscs have freqiKiiiily roiuid a diffi- vulty ill many ort to the house, representing that " doubts had arisen as to whether the objects sought to be obtained by the promoters were not provincial in their character, and such as the local legislature is exclusively empowered to deal with," and at the same time soliciting instructions from the house as to the course to be pursued with reference to the bill. The result was that no further progress was made with the bill during that session.' Doubts were also expressed by the banking committee as to the juris- diction of Parliament in the case of the Canada Life Stock Insurance Company Bill which was not proceeded with.- The whole question as to the jurisdiction of Parliament over insurance came up for discussion on a motion for the second reading of a public bill respecting insurance com- panies. It was moved in amendment that "■ the regulation of insurance companies is a subject properly within the jurisdiction of the provincial legislatures," and the house decided by a very large majority (-44 to 5) against the amendment.'^ Since the first session of the dominion Parliament until the end of that of 1883, between thirty and forty statutes have been passed relating to insurance and insurance com- panies. The local legislatures have also during the same period granted acts of incorporation to companies that do business within the limits of a province. In another part of this work reference is made to the fact that the highest courts in the dominion as well as the judicial committee of the privy council have had the question of jurisdiction under review with reference to the constitutionality of the Ontario Act of 18*76, " to secure uniform conditions in poli- 1 Can, Com. J. (1867-8), 60. ■' lb. 357. » lb. 426. r)92 PRTVATE HILLS. «U's oi' lire iiisiiraiict'." It is now authoritatively decided that the terms of paragraph eleven of section 92 (giving powers to provincial legislatures for provincial objects) are considered sufficiently comprehensive to include insurance- companies, whose object is to transact business within provincial limits. If a company desire to carry on opera- tions outside of the province, it will come under the pro- visions of the general federal law, to which it must con- form, and which contains special provisions for such pur- poses.^ The dominion parliament may give power to contract for insurance against loss or damage by fire, but the form of the contract, and the rights of the parties there- under, must depend uf)on the laws of the country or province in which the business is done.^ Policies of insurance being mere contracts of indemnity against loss by fire, are, like any other personal contracts between parties, governed by local or provincial laws. The pro- vincial legislature has the power to regulate the legal incidents of contracts to be enforced within its courts, and to prescribe the terms upon which corporations, either foreign or domestic, shall be permitted to transact business within the limits of the province — the power being given to local legislatures by the constitution to legislate over civil rights and property,'^ The privy council, in their judgment, confirming that of the Canadian courts, made special reference to the fact that dominion legislation has distinctly recognized the right of the provincial legislatures to incorporate in- surance companies for carrying on business within the province itself. The statute passed in 18Y5 enacts among other things : " But notliing lierein contained shali prevent an}' insurance company incorporated bj or under any act of the legislature of ^ Fournier, J., Sup. Court E. vol. iv., p. 277. » Harrison, C. J., 43 U. C, Q. B. 261 ; Doutre, 267. 3 4 Ont. App. 109. LEGISLATIVE JUIUSDICTIOX. 593 the late province of Canada, or of any province of the dominion of Canada, from carrying on any business of insurance within the limits of the late pi-ovince of Canada, or of such province only accoi-ding to the powers granted to such insurance company within such limits as aforesaid, without such license as herein- after mentioned." Section 28 of the act of 18YY^ consolidating certain acts of the dominion Parliament respecting insurance also sets forth : " This act shall not apply to any company within the exclusive legislative control of any one of the provinces of Canada, unless such company so desires ; and it shall bo lawful for an}' such com- pany to avail itself of the provisions of this act ; and if it do so avail itself, such company shall then have the power of ti-ansact- ing its business of insurance throughout Canada." In the opinion of the privy council, this provision con- tains a distinct declaration by the dominion Parliament that each of the provinces had exclusive legislative control over the insurance companies incorporated by it ; and therefore is an acknov^ledgment that such control was not deemed to be an infringement of the power of the domi- nion Parliament as to " the regulation of trade and com- merce." The privy council add that " the declarations of the dominion Parliament are not, of course, conclusive upon the construction of the British North America Act ; but when the j)roper construction of the language used in that act to define the distribution of legislative powers is doubtful, the interpretation put upon it by the dominion Parliament in its actual legislation may properly be con- sidered." In this connection it is necessary to refer to the fact that certain legislation in the province of Quebec allecting insurance companies has been declared beyond the com- petency of the local legislature. The act in question (30 Vict., chap, a) imposed a tax upon the policies of sucli in- ^ 40 Vict., c. 42. 38 594 PRIVATE lifLLS. suranrc companies as were doing business within the province. Tlic statute enacts: That every assurer car- rviiii;' oil any l)usiness of assurance, other than that of niariiK^ assurance exclusively, shall he bound to take out a license in each year, and that the i)rice of such license shall consist in the payment to the Crown for the use of the province at the time of the issue of any policy, or making or delivery of each premium, receipt, or renewal, of certain percentages on the amount received as premium on renewal of assurance, such payments to be made by means of adhesive stamps to be affixed on the policy of assurance, receipts or renewals. For each contravention of the act a penalty of fifty dollars is imposed. The question of the constitutionality of the act came before the judicial committee of the privy council, who decided : That the act was not authorized by sub-sections two and nine of section ninety-two of the B. N. A. Act with respect to direct taxation and licenses for raising a revenue for provincial, local or municipal purposes. That a license act by which a licensee is compelled neither to take out nor pay for a license, but which merely provides that the price of a license shall consist of an adhesive stamp, to be paid in respect of each transaction, not by the licensee, but by the person who deals with him, is virtually a stamp act, and not a license act. That the imiposition of a stamp duty on policies, renewals and receipts with provisions for avoiding the policy, renewal or receipt in a court of law, if the stamp is not affixed, is not warranted by the terms of sub-section two of section ninety-two which authorizes the imposition of direct taxation within a province in order to the raising of a revenue for provincial purposes.^ Since 1867 the two houses of Parliament have passed a ^ 3 App. Cas. 1090 ; Cartwright, 117. On appeal from a judgment of the court of queen's bench of Quebec, affirming a judgment of the superior court of Lower Canada that the act is ultra vires. 16 L. C. J. 198 ; 21 lb. 77 ; 22 lb. 307. LEGISLATIVE JURISDICTIOX. 595 large number of bills for the incorporation of building- societies, insurance companies, joint-stock, loan, and in- vestment companies. As all such corporations have been desirous to do business in more than one of the provinces, and to establish agencies throughout the dominion, they have found it not only convenient, but absolutely neces- sary in many cases, to obtain legislation from that Parlia- ment which can give them the widest powers. Parliament has always been disposed to extend every possible facility to companies that claim to carry on business for the ad- vantage of Canada, though, on more than one occasion, it has been questioned, whether it has not trenched on pro- vincial jurisdiction. We have already seen that Parliament has been very liberal in its construction of the law enab- ling it to declare a railway a work for the g.'neral advan- tage of Canada, but in the session of 1882 it went a stej) further in making a similar declaration with respect to two electric light companies ; the " Edison Electric Light Co." and the " Thompson & Houston Electric Light Co.'' A debate took place on the first named bill, and it was urged that the corporation was practically local in its character, since it was formed for the purpose of carrying on business within a certain locality. As the company ^sked for powers to take lands for the purposes of its business, and must be subject to municipal regulations, it should therefore receive its powers from local legisla- tures. If the subject-matter was essentially local in its character, the house could not alter that fact by a declar- ation like that in the preamble. It was stated in reply to these objections that when the bill was discussed in the private bill committee it was considered that the introduction of the electric light system was a work to the general advantage of Canada ; that, inasmuch as the company would have to carry on their operations in every province, the best system was the granting of the neces- sary power to one central estal)lisliment from which oper- ations could be carried on between two or more of the 506 rnrvATE bills. ])voviiifos. "Whon it was considered that the act gave the coiiipany power to maiiuiacture and carry on business all over the dominion, the committee thought that this was a case wh(Mi it might be properly declared that the work was for the benefit of Canada. The premier (Sir John Macdonald) took issue with those who argued against the right of the house to make the declaration in question in the case of such companies. It would be exceedingly unfortunate, in his opinion, if the promoters of any great undertaking or invention which they desired to introdu.ce into the dominion were obliged to go to every legislature, and in this way obtain separate corx)o- rations with different conditions and restrictions. The object of the Imi^erial Parliament, in passing the law in question, was to prevent the expense and obstruction to material i:)rogress that would arise if the promoters of a work for the general advantage of Canada had to apply to the several provincial legislatures. They might obtain certain powers in one and be refused the same in another province ; they might get large or restricted powers accord- ing to the policy of a particular legislature ; they might be compelled to submit to conditions, varying and incon- sistent in their nature.^ Whilst Parliament is disposed to give every legitimate facility to companies whose objects are of a dominion character, it has on several occasions refused legislation which appeared to be provincial in its character, or trenched upon matters clearly within provincial jurisdic- tion. The House of Commons refused in 18Y9 to permit the passage of a bill which contained some unusual pro- visions. This was a bill to permit one Nehemiah K. Clements of Yarmouth, Nova Scotia, and such other per- sons as might thereafter be associated with him, to be in- 1 Can. Hans. [1882], 430-6. Mr. Blake, however, dissented from the view that the words in the British North America Act respecting an "undertaking" for the general advantage of Canada could be applied under any circumstances to a mere trading company, p. 434. LEGISLATIVE JURISDICTION. 59 Y corporated for the pii.rx30se of building dykes across the Chebogue and Little Rivers. The premier and others took strong objections to the bill on the ground that it was a matter properly within the jurisdiction of the legislature of Nova Scotia. It was simx)ly a bill to enable a single person to dyke two rivers in Nova Scotia, and was so com- pletely of a provincial character that the last clause provided that the consent of the marsh owners in writing should be deposited in the office of the provincial secretary of Nova Scotia. It would be a novelty in dominion legisla- tion, added the prime minister, if any single person could apply for a charter as a corporation to be formed of any parties whom he might subsequently induce to join him. All matters relating to the granting of lands reclaimed from the waters clearly fell under the head of property and civil rights which should be dealt with exclusively by the local legislatures. On the other hand, more than one speaker, including the minister of justice, thought there was some ground for the application to the general legis- lature since it had granted powers in other cases for the construction of works on navigable waters ; but the difficulty appeared to be the fact that the main object of the proposed legislation was the obtaining of the posses- sion of a large tract of land, which would be reclaimed, but which Parliament had no authority to convey.' The proper course, no doubt, was, as suggested in debate, to obtain an act of incorporation in the first instance from the local legislature, and then apply to the dominion Parliament fo]- any additional powers that it could consti- tutionally grant." In the session of 1882 a bill respecting Pawn-brokers — to prevent them practising extortion — was withdrawn bv the mover at the request of the minister of justice, as it was doubtful if it was within the jurisdiction of the » Can. Hans. [1879], 921-24 ; Yarmouth Dyking Co. biU. - See infra, p. 602 for a precedent in point. 098 I' li IV ATI-: HILLS. clominioii rarliamont.' In 18G0, a bill providing for vac- cination was not proceeded with for a similar reason.^ In the session of 1883 the Senate amended a Commons bill respoctinn-the Wesleyan Methodist Missionary Society by inserting the words, "and every such conveyance shall be subject to the laws relating to the conveyance of real estate to religious corporations which are in force at the time of such conveyance in the province or territory in which such real estate is situate." The private bill com- mittee of the Commons to whom the amendment was referred, on the return of the bill, reported a recommenda- tion that the amendment be disagreed to for the reason that " the Parliament of Canada not having jurisdiction in matters of civil right which belongs to the legislatures of the provinces, it ought not to prescribe the terms and conditions on which the conveyances are to be made to the society, but should leave all laws in each province to operate as to such conveyances." The Senate did not insist on its amendment.' The following list of acts of the Parliament of Canada illustrates the wide range of dominion legislation : An act to incorporate the Commercial Travellers' Association of Canada (37 Vic, chap. 96); "having for its objects the moral, in- tellectual, and financial improvement and advancement and -wel- fare of its members." An act to incorporate the St. Croix Printing and Publishing Company (3*7 Vict., chap. 116); " a corporation for printing a newspaper and other publications in the town of St. Stephen, New Brunswick. An Act to incorjDorate Lamb's Waterproof Grum Manufactm-ing Company (37 Vic, chap. 1 17) ; with its principal office in London, Ontario. An act to amend the act incorporating the Ottawa Gas Com- pany, to confirm a resolution of their shareholders, placing pre- ' Can. Hans. [1882], 266. -' Com. Deb. [1869], 64 ; also, Sen. Deb. [1879], 47. => Sen. J. [1883], 154, 241 ; Com. J. 317, 326, 351. LEGISLATIVE JURISDICTION. 599 ferential and ordinary stock on the same footing, and to confirm, amend, and extend their corporate powers (39 Vic, chap. *7l) ; a corporation originally created by an act of the late province of Canada. Two acts with respect to the Mail Printing and Publishing Company of Toronto (35 Vict., chap. Ill, and 39 Vict., chap. 73.) An act to incorporate the " Dominion Grrange of the Patrons of Husbandry " of Canada, (40 Vict., c. 83) ; " having for their object the improvement of agriculture and horticulture, the sale and disposal of their productions, and the procuring of their supplies to the best advantage, the systematizing of their work, the discountenancing of a system of credit, the encouragement of frugality, and the intellectual, social, and tinancial improvement, and welfare of its members in the various provinces of the domi- nion." An act to amend the act to incorporate the Globe Printing Company of Toronto (40 Vict., c. 84), " desirous of establishing offices in various places outside of the province of Ontario." An act to amend the act respecting the Canadian Engine antl Machinery Company (4G Vict., c. 85) ; authorizing them to " exercise the powers conferred on them by their act of incorpora- tion at any place or places in Canada." An act to incorporate the Grange Trust (40 Vict, c. 86) ; an association incorporated as a loan company by Ontario letters- patent, but desirous of extending their business in the other pro- vinces. An act to incoi-porate the Dominion Phosphate and Mining Company (46 Vic, c 91) ; associated for mining and manufac- turing purposes at various points within tlie dominion of Canada. The foregoing- acts are cited here because they represent a large class of acts which, it has been sometimes ques- tioned, do not legitimately fall within dominion juris- diction,' l)ut whenever a bill asks for powers as a trading or manufacturing company, to do business throughout the ' See reference to dominion pliosphato act by private bill committee. Jour. [188:>] 135. Also, Can. Hans. [1SS:5], 701 (Grange Trust). (300 I'lUVATK HILLS. doiiiiuioii, it lias bfcn considcn-cl to Tail under th(3 pro- vision \vhi(3h places trade under the control of the general legislature. In this class must be placed the Dominion Grange Company, which obtained power to dispose oi" its products, agricultural and horticultural, in the several provinces. In the case of the Grange Trust Com- pany, it required powers to deal with the question of interest, and so far had cause to apply to the general legislature. In other cases, like the printing and publishing- corporations, it is not so clear why it was necessary to apply to Parliament for legislation. In all such matters, however, the general legislature has rarely hesitated to give powers to companies which make a claim to do business in more than one province.' Corporations, established by acts of the provinces or of foreign countries, frequently apply for, and obtain, addi- tional x^owers by statutes of the dominion Parliament. Joint legislative action, in fact, is necessary in many cases. A company may be obliged to receive certain rights and privileges from a foreign government which Canada can- not grant, and at the same time to resort to the dominion legislature for powers which the former government could not concede to it." In 1881 and 1882, Parliament granted acts of incorporation to " "Winslow, Jones & Com- pany," and to the Quebec Timber Company, both formed under imperial acts, in order to enable them to carry on their business within the dominion.^ In 1882, Parliament also passed an act respecting the New York & Ontario Furnace company, which is a corporation " duly incor- porated under the general laws of the state of New Jersey, and of the United States of America, to mine, ship and manufacture iron in its various forms." It declared its 1 Can. Hans. [1882J, 435 (Sir John :Macdonald). ^ Ih. [1SS2J, 429-30. ^ 44 Vict., c. 03 ; 45 Vict., c. 110. See infra p. for a report of the supreme court of Canada, as to the constitutionaUtj- of the Quebec timber bill. LEGISLATIVE JURISDICTION. 601 desire iu its application to Parliament, as set forth in the preamble of the act, to carry on business throughout Canada, and to have " its organization and corporate powers recognized by the Parliament of Canada and ex- tended to the dominion." ' Some objection was taken to the bill in the House of Commons on the ground that Parliament was asked to sanction exceptional legislation by recognizing a foreign entity and giving it certain powers. Dominion legislation, it was urged, ought to be in the direction of creating the corporation to which Par- liament might legitimately give power. It was stated in the discussion that the question of the expediency of recognizing a foreign corporation in the way proposed had come up in the private bill committee, when the bill was before it, and it was found that the house had, in former sessions, passed more than one bill of a similar character, without insisting upon the companies being organized, according to the laws of Canada, or upon their stockholders being residents of the dominion." No doubt, in all such cases, the desire to encourage the introduction of capital into the country prevails above other considera- tions, and inclines the house to facilitate the passage of acts like the one in question. Several bills have been passed by Parliament to permit the construction and maintenance of bridges over various navigable rivers of the dominion — navigation and shipping- being under the exclusive control of the general legislature. ' ' 45 Vict., c. 113. - Can. Hans. [1882], 429-30. '^ B. X. A. Act, s. 91, siib-s. 10 ; Doutrc, p. 141. See Dom. Stat. 38 Vict., c, 97, bridjro acro.ss river L'Assoniption ; fan. Han.s. [1875], 893-89(3. Tho committee on this bill were of opinion that tlie Parliament of Canada liatl the power to deal with such matters, p. 895. Also, 40 Vict., c. G5, Riviere du Loup bridjre ; this river is only navijrable at certain seasons in the neighborhood of the bridge ; Can. Hans. [1877], 1041-2. Also, 37 Vict., c. 113 (River L'Assomption Toll-bridge) ; 45 Vict., c. 91 (Richelieu Bridge Co.) Also, 45 Vict, c. 37, " An act respecting bridges over navigable waters, (102 i'i:iv.\rr. iiii.LS. Wliciit'ver coiiipiinics, incorporated under provincial acts, have required <;ertain privileges upon navigable streams, they have always sought and obtained them from the general legislature. For instance, the Canadian Electric Light Company had received certain rights as a corporation from the legislature of Quebec, but in 1883 it was obliged to seek legislation from the dominion Parliament to define its powers as to the construction of dams, wharves, and other works necessary for the successful prosecution of its l)usiness. It was enacted in the Quebec act of incorpora- tion that the " company shall not exercise any right or ])rivilege which may be within the exclusive jurisdiction of the federal power without having first obtained the required authority from the government or parliament of Canada according to circumstances." Hence the appli- cation to the general legislature and the passage of a dominion act by Avhich the company can construct works on navigable rivers with the approval of the governor in council. In the session of 1883, a very instructive discussion took place on the question how far the general legislature may go in legislating in the case of companies already incorporated under provincial acts. Among the bills before the house was one to grant certain powers to the Acadia Powder Company, already incorporated by special acts of the province of Nova Scotia. The bill asked for power to extend the business of the company throughout the dominion ; and, from the debate on the measure, it is evident that had its promoters been content with asking* Parliament to grant this general power, there would have been little objection to its passage, except from those who had doubts as to the right of the dominion legislature to in- constructed under authority of provincial acts." Sen. Hans. [1882], 373- 77. See remarks of Sir J. A. ^lacdonald (Can. Hans. [1879], 923) in which lie claimed that the local legislature could deal with navigable rivers. Parliament, however, had a right to legislate as to navigation and shipping, and could pass general laws in relation to obstructions. LEGISLATIVE JURISDICTION. 603 terfere in any way with local legislation/ But the bill went still further, since it contained provisions with res- pect to the capital stock and directors, which were a clear infringement of the powers of the provincial legislature which created the company. The following summary of the views of some of the principal speakers on the points at issue will show that there was unanimity of opinion as to the principles that should guide the house in similar cases : Mr. Ouimet said that it was quite clear that corporations created by the local legislatures might come to the general par- liament to have their powers extended ; that is to say. to obtain powers, which could not be granted by the legislature of a pro- vince. For instance, the house had that session given power to the Credit Foncier Franco-Canadien- to impose certain chai-ges of interest, which were not within the. power of the provincial legis- lature. No doubt the parliament had power to create coj-porations whose operations would be general or federal, but in cases like the bill under consideration it should only grant such powers as the legislature could not grant. Application should be made to the latter body for such powers as it could give. Mr. Blake. There are two modes in which parliament can deal with a manufacturing company which wants more than a local legislature can give. We can either extend to the cor- ])orate entity, created by the local legislatui-e, certain powers which we alone can give, or we can create a federal corporation complete and entire, created by and amenable to ourselvesj totus, teres, atque rotundus. On general principles I strongly ])refer the second of these two modes, because it gives a multi- plicity of conveniences. I would refer all those who are interested whether as shareholders, creditors, or otherwise, in the constitu- * See speech by ]Mr. .\niyot (Hans. pp. 422-25) in wliicli he gave his ol)- jections at length to any k-gislation by the dominion parliament -whic-h would infringe, in liis opinion, upon the exclusive jurisdiction of the provincial legislatures. If a company re(iuired rights in otlier provinces, it should apply to tlioir rcsixu;tivo logishiturcs. But, on the other liand, see {mprd, p. 59(1), the argument of the premier in the very opposite direction. '' 46 Vict., c. 85. (104 I'lUVATE lULLS. liuiKil j)o\v'ers of the ciimpun}' to tli(3 one statute or the amend- ments of the statute. The other mode exposes you to compli- cations; but if we adopt tlie least convenient course, we ought to know the extent of the corporate entity, the sum of power, which it cannot obtain from the local legislature, and which will enable it to enlarge, if i-cquired, the sphere of its operations. We should not interfere with such details as can be arranged by the local legislature. Were some of the domestic arrangements to be altered by the Nova Scotia legislature and others by parliament, gi'cat confusion would necessarily arise, ]\Ir. McCarthy — For my part I entertain not the slightest doubt that we can give increased powers to a corporation, although it may owe its existence to one of the local legislatures, just as we give powers to English and American companies. But we should stop there ; we should not interfere with such details of the organization, as are wholly within the jurisdiction of that sovereignty' which has created the corporation. The legislature which had in the first instance made provisions with respect to the capital stock, had it now in its power to increase the same on such terms and conditions as it might deem expedient ; and it was clearh^ from that body alone such power should be sought. Sir John Macdonald — A complication arises when a local cor- poration having certain limited powers confei-red on it by a pro- vincial legislature seeks extended rights. Whilst we may extend these powers we cannot alter the constitution as arranged by the provincial legislature. Nay, I go further and say that, if a corpor- ation, chartered under certain conditions and provisions by a local legislature, comes to the dominion parliament, and asks for increased powers, which the legislatui-e considers contrary to the policy, under which they created the corporation originally, then I think it is quite within the jurisdiction of the provincial l)ody to take steps to destroy it. If it wishes to have a dominion existence it should come here and obtain a new charter. Mr. Weldon, who agreed with these views, pointed out how a conflict of authority might arise from the fact that the bill, ae amended by the Commons committee, provided for an increase of capital stock by a two-thirds vote of the shareholders in accordance with the principle laid doAvn by parliament in such cases, whilst the act of the provincial legislatui-e left that matter to be decided by only a majority of votes. REFERENCE TO SUPREME COURT. 605 111 view of these opinions, so emphatically express^^d by eminent constitutional authorities, the bill was amended in committee by striking out the clauses with resjiect to capital and directors, and giving' the company simply power to do business throughout the dominion/ rV. Supreme Court Reports on Private Bills.— By section 53 of the Supreme and Exchequer Court Act" it is provided that the supreme court or any two of its judges shall examine and report upon any private bill or petition for a private bill, referred to the court under any of the rules of either house of Parliament. The Senate at first adopted a stand- ing order which jn-ovided for the reference to the court before the second reading of a bill, but now such bill may be referred at any time before final passage." The opinion of the judges is placed on the journals as soon as it has been laid before the Senate by the speaker/ In the session of 18*76, a question arose in the Senate whether a bill for the incorporation of the Brothers of the Christian Schools in Canada was not a measure which fell within the class of subjects exclusively allotted to provincial legislatures under section 92, sub-s. 11 of the B. N. A. Act, 1867, relating to the incorporation of com- panies with provincial objects, and section 93 relating to education. Four of the judges reported their opinion that it was a measure included in the class of mea- sures falling under provincial jurisdiction. Chief Justice Richards did not differ from the other judges in the con- clusion arrived at, but declined to make a report on the ground that he doubted if section 53 of the Supreme Court Act intended that the judges should, on the reference of a ' 46 Vict., c. 94 ; Can. Hans. [1883], 202, 422, 499, .500. 2 38 Vict., c. 11, Dom. Stat. 3 R. 55 amended in 1878, March 28, p. 337, Sen. Dob. Also, Dob. [1877], 260 ; lb. [1878], 100, 137, 147, 293. * Sen. J. [1876], 155, 206. €06 I'inVATK JilLLS. private hill to them, express an opinion on the constitu- tional right of the Canadian Parliament to pass the bill.' In 1882, on the recommendation of the committee on private bills, the Senate referred to the Supreme Court a hill to incorporate the Quebec Timber Company in order to solve doubts that had arisen as to the constitutional right of Tarlinment to legislate in the matter. The points on which the house desired information were these : — 1st. Whether a company already incorporated under the "Companies' Act of 1862 to 1880," of the Imperial Parliament for the purposes mentioned in the bill, has a legal corporate existence in Canada, and, if so, whether a second corporate exis- tence can, upon its own application as a company, be given to it by the Canadian Parliament, and 2nd. "Whether the objects for which incorporation is sought are such as to take the bill out of the exclusive jurisdiction of the legislature of Quebec. The judges, in their report on the bill, excused them- selves from answering the first part of the first query on the ground that it affected private rights which might come before the court judicially. As to the second part of the query, the court was of opinion that the dominion Parlia- ment can incorporate such a company for objects coming within the jurisdiction of the Parliament of Canada. As to the second query, the court was of opinion that the objects set forth in the bill are within the jurisdiction of the dominion Parliament, and out of the exclusive jurisdic- tion of the legislature of the province of Quebec." In the same session, on the motion for the third reading, a bill to incorporate the Canada Provident Association was referred to the Supreme Court. This association was formed " for the purpose of making provision in case of sickness, unavoidable misfortune, or death, and for sub- stantially assisting the widows and orphans of deceased ' Sen. J. (1876), 207. = Sen. J. (1882), 143, 158-9. The bill was, with the report, then referred to the committee on private bills, and subsequently passed by the Senate. CLASSIFICATION. 607 members.'" The judges reported that it did fall within the jurisdiction of the dominion Parliament, although they had doubts as to the first section which enabled the company to hold and deal in real estate, and also as to the second section which exempted from execution for the debts of any member the funds of the association — matters which should be argued before an}" positive opinion should be expressed by the court.' V. Questions of jurisdiction referred to Senate committees.— In 18t9 the Senate decided to make the experiment of giving authority to the committee on standing orders and private bills to consider the question of jurisdiction in the case of bills submitted to them. Rule 60 was rescinded and the following substituted : '' Any private bill shall, if It he demanded by two members^ when read the first time, be refei-red to the committee on stand- ing orders and private bills, to ascertain and report whether or not the said bill comes within the class of subjects assigned ex- clusively to the legislatures of the provinees.- VI. Classification of Private Bills.— Sometimes doubts may arise whether a bill should be classed as public or private. Many cases of this nature occurred in the practice of the old Canadian legislature, but the houses generally allowed themselves to be guided by the decision of the committee to whom a bill might be referred. A committee has, under such circumstances, made some ainendments to a bill in order to obviate a difficulty, and bring it under the category of a public or private bill.'^ In the session of 1865 a bill was brought up from the legislative council > 45 Vict., c. 107 ; Sen. J. [1882], 273, 301-2 ; Hans. pp. 460-2, G9S. - Sen. J. [1879], 155, 170, 190, 206 ; Deb. 309, 340, 415 ; Jour. [1880], 79, 83, 85, 91, &c. Tlie words in italics wore added as an amoiKhnent in 1880. Jour. p. 92. ' Todd's Private Bill Practice, pp. 8-10 ; bill in reference to townships in Victoria countj'. Ass. Jour. [1858], 568, 684 ; Huron Indians, Ass. Jour. [1864], 391, 478. (108 I'lnVATK I! ILLS. iiititulod, "an act to enable the church societies and incor- porated synods of the Church of England dioceses in Canada to sell the re<;torial lands in the said dioceses ; " and the ohjcciion was taken that it was private in its character and ought to have been introduced on petition. The speaker decided against the bill, on which no further progress was consequently made.' All bills respecting synods and religious corporations are considered private since 1867.^ In the session of 18t9 a member asked leave to intro- duce, as a public measure, a bill " to empower R. Gr. Dalton, clerk of the court of queen's bench, Ontario, to pay to John Stewart, of the city of Kingston, surgeon, one thou- sand dollars," — the money having been paid into court in accordance with the law requiring a certain deposit in the case of an election petition. The speaker at once decided that the bill was private in its character, and accordingly the motion for leaA'e was withdrawn.^ Subse- quently a petition for a private bill was presented.^ Bills from the corporations of towns, and municipal bodies generally, are always treated as private bills, when they desire special legislation affecting their property or interests.^ Though this class of measures now falls, as a rule, within the jurisdiction of the local legislatures, yet several cases will be found in the Commons' journals of applications from corporations of cities and towns for bills touching their interests ; but on reference to the details of the measures it will be seen that they affect certain matters which properly come within the purview 1 Siieak. D. 134 ; Ass. Jour. [1865], 123. - Saskatchewan Synod bill, Com. J. [1882], G4, &c. ; 45 Vict. c. 120 ; also, 34 Yict.,c. 58 ; Com. J. [1871], 71, &c. ^ Can. Hans. 1879, March 5. By reference to the journals of 1S7S (pp. 27, 36, 74), it will be seen that a private bill on the same subject had been presented that session, but not proceeded with. * Can. Com. J. [1879], 56, 57. * A bill to incorporate the city of Kingston was declared in 1847 to be a private bill, and subject to the payment of a fee ; Jour. p. 150. CLASSIFICATION. 609 of the dominion Parliament. For instance, in the session of 1870, bills were passed to enable the town council of Belleville to levy harbour dues, and to give authority to the Collingwood Township Council to construct a harbour at the mouth of the Beaver river. Numerous bills of a similar character have been passed in other years ; and as they have affected trade, navigation and shipping, matters within the jurisdiction of the dominion Parliament, they have been properly presented in the general legislature.' In the English house, bills relating to the metropolis have been treated as public bills on many occasions on account of the general and large interests involved, al- though possessing many features characteristic of private bills. These measures have related to the vend and de- livery of coals, ballast heavers, weighing of grain, main drainage, water-supply, besides many others which, had they been presented by other cities, would certainly have been regarded as private bills." As a rule, it may be stated that when bills treat of mat- ters of general policy, su("h as sanitary, or police, or com- mercial, or fiscal regulations, they may be considered as public measures. In fact, all bills affecting the general interests of the community, and involving considerations of public policy, are out of the category of private bills dealing with the special interests of corporations or asso- ciations. In the session of 1880-81, the government of Canada having decided to complete the Pacific railway by means of a company, brought in a public bill to incorporate certain persons under the name of the Canadian Pacific ' 33 Vict., c. 45 and c. 46 ; Can. Com. J. [1870], 60, 81. Also, harbour (lues in Owen Sound (34 Vict., c. 35) ; harbour duos in Trenton (34 Vict., c. 36) ; Grafton harbour continuance bill (46 Vict., c. 93) ; Kincardine 1)111 (40 Vict, c. 52) ; Moira river bill (42 Vict, c. 51). * 129 E. Com. J. 122 ; 131 lb. 336 ; 132 lb. 348, «&c. Bills aflectinj.' the property, interests or jurisdiction of the city of London have been gener- ally solicited as private bills. May, 747. 39 610 PRIVATE BILLS. Ivailway Company.' In the same session a minister pre- sented a pu])lic IhII intituled "an act to provide for the incorporation of a company to establish a marine tele- g'raph between the Pacilic coast of Canada and Asia." This bill applied the provisions of the Joint Stock Com- panies' Act, and of the Marine Electric Telegraphs' Act to the company in question.^' "Whenever public bills involve private interests which should be carefully guarded, they are subjected to the same examination provided for private bills. A bill introduced in 1864 in the English Commons on the subject of the weighing of grain in the port of London was considered a public bill, as it concerned the hom.e and foreign trade, and also the public revenue ; but the speaker called attention to the fact that there w^ere alle- gations in the preamble which were open to dispute and required to be established by evidence, and under such circumstances he deemed it advisable to commit the bill to a select committee, by whom these facts would be in- quired into, and any local or private rights would be duly protected.^ A similar case occurred in the Canadian house in the session of 1883, when a member introduced, on motion, a bill, " to increase the harbour accommodation of the city of Toronto, to extend the esplanade, and to provide for the control of the use thereof by railway companies." This measure proposed that a board of commissioners should be established for the ]3urpose of carrying out the objects, which were sufficiently set forth in the title. After the second reading it was referred to the railway committee with the understanding that due notice would be given to the private companies and great corporations which ^ 44 Vict., c. 1. - 44 Vict., c. 33 ; Hans. [18S0-S1], 1173-77. The bill was based on reso- lutions from the committee of the whole — an altogether superfluous pro- ceeding. ^ Mr. Speaker Denison, June 23, 1864 ; 176 E. Hans. (3), 163, 171. HYBRIDS. 611 would be affected by the proposed legislation. The com- mittee did not, however, deal with so important a measure that session, but reported to the house that the preamble was not proven/ In the English House of Commons, there is a class of local bills, quasi private, distinguished as " hybrid bills." They are brought in, by order, as public bills, but " their further progress is subject to the proof of compliance with the standing orders before the examiner, and to the pay- ment of fees." They are generally '" bills for carrying out national works, or relating to crown property, or other public works in which the government is concerned," or they sometimes deal with matters affecting the metropolis. - The rules of the Canadian houses do not make any special provision for this class of bills. The Toronto Esplanade bill, just mentioned, would probably belong to this class, since the house found it necessary to refer it to a select com- mittee with a view to protect the private interests in- volved.'^ In other cases, where bills have affected both public and private interests, a different course has been followed. In the session of 1875, the premier (Mr. Mac- kenzie) moved for leave to introduce a public bill to re- arrange the " capital of the Northern Railway of Canada, to enable the said company to change the gauge of its railway, and to provide for the release of the government lien on the road on certain conditions." Objection having been taken that some of the provisions affected private in- 1 Can. Com. J. [1883], 203, 224 ; Hans. 709. - ]May, 787. "Windsor Castlo a])proachcs bill, 18-48 ; Portland harbour and breakwater bill, 1850 ; Smithfield market removal bill, 1851 ; Belfast municipal boundaries bill, 1853 ; Thames embankment bills, 1802 and 1863 ; Metropolis gas bills, 1867 and 1868 ; Dover pier and harbour bill, 1875 ; public offices site bill, 1882. ^Though the committee reported the preamble not proven, the bill appeared in its proi^er place on the public orders. A strictly private bill ■would not have even appeared on the private busine-ss paiwr under the rules governing such bills (see infra, p. 660). In the English Commons hybrid bills always appear on the public orders. 612 PRIVATE BILLS. terests and altered the powers of the company in very- material points, the speaker decided that the bill ought to he withdrawn. Separate bills were subsequently passed by the house — one, relating to the government lien, was treated as a public bill, and the other, relating to the gauge and capital, as a private bill/ In 18*79, a bill of a very novel character was presented in the House of Commons. The solicitor-general of the province of Quebec came before the house as a petitioner for a private act to confer upon the government of that province " the powers granted to the Montreal, Ottawa and "Western Railway Company, by several acts of the Parliament of Canada, in so far as related to the construc- tion of a bridge over the Ottawa River, and likewise power to acquire all land and real estate situate in Ontario, necessary for the purposes of the said Railway." The executive government of Quebec, for the time being, was to be constituted a railway corporation and body politic and corporate, for the purposes of the act, by the title of the government of the province of Quebec. The bill was not discussed in the house, but sent at once to the railway committee, where the inconveniences that might arise from constituting the Quebec government a corporation under a dominion charter became obvious to the majority of the committee ; and it was agreed to alter the bill very materially. The bill, as finally amended and passed authorized " the commissioner of agriculture and public works of the province of Quebec for the time being to construct a bridge over the waters of the Ottawa River, between the cities of Hull and Ottawa, and also a line of railway to connect the Quebec, Montreal, Ottawa, and Oc- cidental Railway with any railway coming to the said city of Ottawa." It was also provided that the powers con- ferred upon the commissioner in question shall be vested in and may be exercised by any commissioner ^ Can. Com. J. [1875], 213, 217; Hans. 662. MISCELLANEOUS. 613 or public officer who may hereafter be substituted by the legislature of Quebec in place of the said commis- sioner/ In 1880, the minister of justice introduced a bill to remove a difficulty that had arisen as to the title of the Quebec, Montreal, Ottawa, and Occidental railway, which had been already the subject of dominion legis- lation. The government of Quebec, by whom that road had been acquired, believed it to be necessary to obtain .additional legislation from the dominion Parliament with Tespect to that portion of the railway extending from Montreal to Quebec, just as it had been previously obtained in the case of the part between Montreal and Aylmer. Objection was taken, on the second reading, that the bill affected private interests, and the case of the Northern ^Railway bill was adduced as a precedent. The bill was then withdrawn.^ It is perfectly regular to repeal or amend a ]3ublic act by a private bill.'' The policy of this mode of legislation has been sometimes questioned, and while the practice is allowable, such bills cannot be too closely scrutinized- Many cases can be found in Canadian, as in English legislation, of companies or corporations being excepted in express terms from the provisions of certain public statutes. A new rule was adopted in the Canadian Com- mons in 1883, with the view of indicating in every bill any departure in its details from general acts.^ But a bill proposing to amend a public act in the interests of certain persons will not be allowed to proceed as a public bill. In the session of 1883 it was proposed to pass, as a public measure, a bill to enable the minister of 1 Can. Com, J. [1879], 65, 89, &c. ; 42 Vict., c. 56. See Montreal Gazette, March 29, for summary of discussion on various points raised. - Can. Hans. [1880], 1998. •' 176 E. Hans. (3), 16-19. * Res. of 20th April, 1883 ; iufru, p. 657. 614 I'RIVATK BILLS. the interior, notwithstanding- the provisions of the act 43 Vict., chap. 7, to receive the applications of certain persons in Manitoba for the issue of letters-patent to them of various lots of land in that province ; but it was with- drawn on the objection being taken that it was a private bill.' It has been decided in the English House of Commons that a bill, commenced as a private bill, cannot be taken up and proceeded with as a public measure. In 1865, the promoters of the Middlesex Industrial Schools Bill, dissatisfied wdth some amendments relative to Eoman Catholic Chaplains, made in committee, determined to abandon it ; but subsequently Mr. Pope Hennessy gave notice that he proposed to proceed with it as a public bill ; but this course was decided to be irregular.- Nor can a strictly private bill be turned into a hybrid.^ If it be found that a private bill affects the public revenue,, it will be necessary to obtain the consent of the govern- ment to the clauses in question and have them first considered in committee of the whole, and then referred to the committee on the bill.^ A private bill has not been allowed to proceed on the ground that it atfected the public revenue,^ but in the majority of cases where the property or interests of the Crown are concerned, the con- sent of the sovereign will be obtained at some stage before the final passage. If this consent be not obtained, all pro- ceedings will be stayed." 1 Can. Hans. [1883], 1034. '^ May, 753. It has been decided in the English Commons that it is for the house, and not for the speaker, to decide whether the subject-matter of a bill is proi^erly private or public. 177 E. Hans. (3) 642-653, (Liveriiool Licensing Bill). » 180 E. Hans. (3), 45. * Canada ^^ne growers' association bill, 1867-8. ^ Bill to extend the time for paying debt of the county of Perth. Leg. Ass. J. [1860], 298. ® Supra, pp. 473-4. GEXERAL ACTS RELATIVE TO COMPANIES. 615 Vn. General Public Acts affecting Corporate Bodies.— In order to give greater facilities to the ineorporatiou of companies for various purposes, and to obviate the necessity of so many applications for special legislation, Parliament has passed general statutes which provide all the necessary machinery by which a number of persons can form themselves into a body corporate. Uuder an act respect- ing Joint Stock Companies,^ the governor in council may, by letters-patent under the great seal, grant a charter to any number of persons, not less than five, who may be constituted a corporation for any purpose to which the legislative authority of the Canadian Parliament ex- tends, except the construction and working of railways, or the business of banking and the issue of paper money or insurance. In addition to the act previously men- tioned, providing for the incorporation of boards of trade- throughout the dominion, a general statute authorizes the governor in council to grant a charter, under the gTeat seal, to any company of persons who may be formed under any special act of the Imperial Parliament, or under the imperial joint stock companies act, or any other general act of Grreat Britain, or by royal charter, for the purpose of establishing and maintaining telegraphic communication in the waters within the jurisdiction of Canada.'^ A number of general statutes have also been passed by Par- liament for the purpose of regulating the business of banking, insurance, railways, and trading and business companies generally, and with the view of protecting the various interests that the public have in all such associa- tions and undertakings. The provisions of the general railway acts apply to every railway already constructed, or to be constructed, under the authority of any act of the Parliament of Canada, and must be incorporated with the 1 40 Vict., c. 43. ^ Supra, p. 590. 2 38 Vict., c. 2G. 1 (j PRIVA TE BILLS. special acts respecting these works, unless they are expressly varied or excepted by the terms of such acts/ In the same way the provisions of the Canada Joint Stock Companies Act apply to every company, unless it is other- wise expressly provided in its special act of incorpora- tion.^ Very stringent provisions have also been made for the careful working of monetary institutions, and for the security of the people of Canada who have assured their lives or property in insurance companies. G-eneral statutes have also been passed for the winding up of in- solvent banks and trading companies.'^ But notwithstanding the facilities afforded by the dominion Parliament as well as by the local legisla- tures for the incorporation of certain classes of companies by the governor or lieutenant-governor in council, the work of these various legislative bodies does not appear 1 42 Vict., c. 9 ; 44 Vict., c. 24 ; 46 Vict., c. 24 {mpra, p 588). ' 32-33 Vict, c. 12. ^ For the legislation of the Canadian Parliament on trading and business companies, see in addition to the acts alreadj' cited : Carriers by water, 37 Vict., c. 25. Banks, 34 Vict, c. 5 ; 35 Vict., c. 8 ; 36 Vict., c. 43 ; 42 Vict., c. 47; (holidays, etc.) 36 Vict, c. 43; 38 Vict, c. 17 ; 40 Vict., c. 44, (right of voting); 42 Vict., c. 45; 43 Vict, c. 22; 44 Vict, c. 9; insolvent banks and trading companies, 45 Vict, c. 23) 46 Vict, c. 23. Savings banks in Ontario and Quebec, 34 Vict., c. 7 ; 35 Vict, c. 9 ; 36 Vict., c. 72 ; 43 Vict., c. 23 ; 44 Vict, c 8. Kaihvay passenger tickets, 45 Vict., c. 41. Tele- graph companies in Quebec and Ontario, 32 & 33 Vict, c. 14 ; telephones, 45 Vict., c. 40 ; telegraph operators, 44 Vict., c. 26. Insurance companies, 38 Vict, c. 20 ; 40 Vict, c. 42 ; mutual, 34 Vict, c. 12. Permanent build- ing societies in Ontario, 37 Vict., c. 50 ; 40 Vict, cc. 48, 49 ; 41 Vict. c. 22 ; 42 Vict., c. 49 ; 45 Vict., c. 24 ; building societies in Quebec, 40 Vict., c. 50 ; liquidation, 42 Vict, c. 48 ; permanent building and loan societies generally, 43 Vict, c 43. Conveying timber down rivers, 36 Vict-, c. 64 ; 43 Vict., c. 9. Inspection of bridges, 35 Vict., c. 25 ; bridges over naviga- ble rivers under provincial legislation, 45 Vict., c. 37 ; booms and works in navigable waters, 46 Vict, cc. 43, 44. Interest and usury, certain corporations in Quebec and Ontario, 36 Vict, c. 70 ; in Nova Scotia, 36 Vict., c. 71 ; in Now Brunswick, 38 Vict, c. 18 ; British and other foreign companies for lending money, 37 Vict c. 49. See a useful little index to the general statutes of Canada published periodically by Mr. Wicksteed, law clerk to the Commonst ALL ACTS DEEMED PUBLIC. 6lY to dimiuish.. Ou the contrary, as has been shown in the first part of this chapter, the number of special acts passed by the legislatures of the dominion for the incor- poration of companies for various objects has never been so great as within the j)ast five years. The necessity of obtaining powers not included in the general acts, con- tinually forces companies to seek special legislation. Indeed, on a careful review of the statute book, it will be seen that, in not a few cases, companies have found it necessary to obtain special exemption from provisions of the general acts. VUI. All Acts deemed public, unless otherwise declared.— Every local and inivate act passed in Canada previous to, and for some years after 1840, contained a clause declaring that it " shall be deemed a public act and shall be judicially taken notice of as such by all judges, justices of the peace and other persons whomsoever without being specially pleaded." From 1850 to 1868, the clause was shortened, and it was simply enacted that " it shall be deemed a public act."' In the first session of the dominion Parlia- ment it was enacted that " every act shall, unless by express provision it is declared a private act, be deemed a public act, and shall be judicially noticed," and conse- quently the public clause has been ever since omitted from private acts. It is also provided in the same statute" that " all copies of acts, public or private, printed by the queen's printer, shall be evidence of such acts and of their contents, and every copy purporting to be printed by the c^ueen's printer, shall be deemed to be so printed, unless the contrary be shown. "^ ^ See Consol. S. C, c. 5, s. 6, sub-s. 27. '^ 31 Vict., c. 1, s. 7, sub-s. 38. This provision is in accordance with Lord Brougham's act of 1850, for shortening the language of acts of Parliament ; 13 Vict., c. 21, s. 7. ' See Imp. Stat. 8 & 9 Vict., c. 113, s. 3. CHAPTER XX. PRIVATE BILLS.—Continued. T. English compared with Canadian procedure. — II. Promotion of private bills in Parliament. — III. Private bill days in the Commons. — IV. Petitions for private bills. — V. Committee on standing orders. — VI. First and second readings of bill. — VII. Fees and charges. — VIII. Committees on private bills. — IX. Reports of Committees. — X. Com- mittee of the whole. — XI. Third reading. I. English compared with Canadian Procedure.— The procedure in the Senate and House of Commons with respect to private bill legislation is more simple than that of the Eng-lish houses. In Canada there are only twenty-four special rules or orders for the regulation of private bills, while in the English Commons there are no less than two hundred and fifty relating to that class of legis- lation. It is true that, in all unprovided cases, refer- ence may be had to the practice of the English houses, but so far the system of the Imperial Parliament has only been adopted in a very modified form. The English orders provide for a much more thorough examination of all petitions and bills than is possible under Canadian rules. For instance, the chairman of the committee of ways and means, who is deputy speaker and a paid officer of the house, examines all private bills whether opposed or unopposed, and calls the attention of the house, and also of the chairman of the committee on every opposed bill, to all points which may appear to him to require it. He is also at liberty, at any period after a private bill shall have been referred to a committee, to report to the house any special circumstances relative ENGLISH PROCEDURE. 619 thereto, which may appear to him expedient. The im- portant and onerous duties of the chairman of ways and means in these particulars are in practice performed by individual members of the Canadian committees on private bills. The work of private bill legislation is also distributed as far as possible between the two houses. It is the duty of the chairman of the committee of ways and means, at the commencement of each session, to seek a conference with the chairman of committees of the house of Lords, for the purpose of determining in which house the respec- tive private bills shall be first considered. Consequently a fair proportion of private bill legislation is now initiated in the Lords, and the work of the Commons is to this extent lessened. A similar practice is not possible in Canada, while the promoters of private bills are free to introduce their bills in either house. In 1882, out of 71 private acts that were passed, only eight were presented in the Senate. The English house refers private bills to certain small committees, which may be compared to the sub-com- mittees to which the large committees of the Canadian Commons find it occasionally convenient to refer some private bills for thorough scrutiny and amendment. A committee of selection, composed of eight members, classi- fies all bills, except those of railways, canals, or tramways, nominates the chairman and members of committees on such bills, and arranges the time of their sitting, as well as the bills to be considered by them. A general com- mittee of railway and canal bills, usually composed of eight members, has duties analogous to those of the committee of selection. It arranges railway, canal and tramway bills into groups, and appoints the chairman of every committee on such bills from its own body. The main object of its constitution " is to ensure a com- munication between the several chairmen, and uniformity in the decisions of the committees." The committees ta 4320 PRIVATE BILLS. whom the several classes of opposed bills are referred consist of four members.^ The system in the Canadian houses is to refer the dif- ferent classes of bills to large standing committees, which consist of the following numbers : — In the Senate. Oommittec on Standing Orders and Private Bills 3G " Kailways, Telegraph and Harbours 32 " Banking and Commerce 29 In the Commons. Committee on Standing Orders 42 " Eailways, Canals and Telegraph Lines. . .136 " Miscellaneous Private Bills 70 " Banking and Commerce 98 The committees of the Commons, as already shown in the chapter on select committees, are nominated at the commencement of each session by a committee of selec- tion, composed of leading men representing the political divisions in the house. The writer has compared the Canadian with the English practice as respects the examination of bills and the con- stitution of committees, because it has been more than once debated whether the procedure of the Canadian houses might not be advantageously amended in these particulars. With these remarks the writer may now proceed to con- sider the practice of the two houses of the Parliament of the dominion. As the orders of the houses are the same, it will be sufficient to give a summary of the procedure of the Commons, where the great mass of private bill legisla- tion is initiated.' A separate place will be given to divorce bills, and to a few points of practice in the Senate which demand special mention. ' May, 802-3 ; S. 0. 98-118. HOW TROMOTED. 621 n. Promotion of private legislation in Parliament.— It is the practice of the Canadian Commons ibr members to take charge of private bills and to promote their progress through the house and its committees, but it is " contrary to the law and usage " of the English Parliament that any member of the house "should be permitted to engage, either by himself or any partner, in the management before this or the other house of Parliament for pecuniary reward."^ So strictly is the principle of this usage carried out in England, that it is even provided in the Standing Orders of the Commons that no member, " locally or other- wise interested" in an opposed private bill, can sit in a com- mittee thereon. Every member of a committee on such a bill must, before he is entitled to attend and vote on such committee, sign a declaration that his constituents have no " local interest " and that he himself has no " personal interest " in the proposed legislation. Nor can a member, locally or otherwise interested in an unopposed private bill, vote in a committee on any question that may arise, though he may attend and take part in the proceedings." It is a recognized principle in the Canadian, as in the English, Parliament, that ministers of the Crown should not initiate or promote private bills. But ministers sit on private bill committees in the Canadian Commons, and carefully scrutinize all private and local legislation with the view of guarding the public interests.'^ ^ Res. of 26th Feb., 1830 ; 85 E. Com. J. 107. " Eng. S. 0. 108-110, 137, 139 ; Can. Hans. [1883], 30-37. While some members have been inclined to adopt the English standing orders in these particulars, others have argued that in a very large committee like that on railways in the Canadian house, it is to the public advantage and convenience that all the railway interests should bo represented and heard; of course, in small committees like those in the Englijsh Common.s, it is inexpedient to have members locally interested in such works. See remarks of Sir J. A. Macdonald, p. 37. ^ In England, the occupants of the Treasury bench are exempt from serving on private bill committees ; 175 E. Hans. (3), 1545. See as to duties of ministers : Mirror of P. 1830, ji. 2009 (Sir R. Peel) ; lb. 1840, n22 rniVATE bills. Rules 72 aiulY-'] of the Commons lay down certain regu- lations for the guidance? of agents, to whom parties inter- ested in private legislation may entrust their bills. Every agent is personally responsible to the house and to the speaker for the observance of the rules, orders and prac- tice of Parliament, and also for the payment of all fees and charges. He cannot act until he shall have received the express sanction and authority of the speaker. If he shall act in violation of the rules of Parliament or of those prescribed by the speaker, or shall wilfully misconduct himself in prosecuting any proceedings before Parliament, " he shall be liable to an absolute or temporary prohibition to practice as a parliamentary agent, at the pleasure of the speaker ; provided that, upon the application of such agent, the speaker shall state in writing the ground of such pro- hibition." No officer of the house is allowed to transact private business for his emolument or advantage, either directly or indirectly.' m. Private Bill Days in the Commons.— By rule 19, private bills come up for consideration in the House of Commons on Monday, Wednesday, and Friday in each week.^ No limit is fixed to the discussion on such bills when they are reached on Monday, but on the other days they are not to occupy more than one hour, when the house resumes at half past seven o'clock in the evening. By general consent the hour may be extended,^ but if objection be taken the house must go on with the other business on the order paper.^ The rule is frequently suspended to- ll. 4657 (Mr. Baring, chancellor of the exchequer); 80 E. Hans. (3), 177 (Sir R. Peel). See also Sen. Deb. [1879], 186 ; lb. [1883], 52. 1 Pari. Rep. No. 648, of 1833, p. 9 ; Xo. 606, of 1835, pp. 17, 19. May, 782. - Supra, p. 251. •' Canada Southern railway bill, March 22 ; and April 10, 1878 ; when two hours and a half were devoted to private bills. * CampbeU relief bill, Hans. [1879] 1883. PETITIONS. 623 wards the close of the session by orders giving precedence to government or other business of importance. In case it is not proposed to supersede private bills, the motion to give priority to other matters should be so expressly worded.' rv. Petitions for Private Bills.— Every private bill, presented in either house, should be first based upon a petition which states, succinctly, the object which the promoters have in view." The rules that govern petitions generally, apply also to those for private bills ; and it is therefore important that every applicant for private legislation should carefully observe these rules, as an informality may jeopardise the measure he is applying for. As the subject of petitions is treated fully elsewhere,'* it is here necessary only to state that the signature must appear on the sheet containing the whole or part of the prayer ; that the signature or signatures must be in the hand-writing of the party interested ; that an agent cannot sign for another except in case of illness ; that the petition of a corporation must contain the corporate seal ;^ that no member can present a petition from himself, but must do so through another member.' A member will present the petition in his place — confining himself to a simple statement of the prayer — and it must lie two days on the table before it can be read and received ;'"' and it is then re- ferred, as a matter of course, to the committee on standing orders, which takes cognizance of all such petitions, and it is only after a favourable report that the bill can be presented. 1 Can. Com. J. [1882], 231. •' Sen. R. 57 ; Com. R. 56. ^ Chapter viii. * In the Gla.sgow gas bill, 1843, an objection was taken that the seal attached to a petition was not the corporate seal of a company ; and when this was proved to be the case, all the evidence in support of the jx^tition was ordered to be expunged; ]May, 838. '" Bank of Manitoba, Can. Com. J. 1875, p. 235 ; Metropolitan Bank, lb. 1876, p. 141. 6 Sen. Deb. [1879], i:0. 024 PRIVATE BILLS. Petitions could formerly be presented within the first three weeks of the sessioii : but in 18*70 certain modifica- tions and changes were made' in the rules, and it is now ordered : " No petition forany private bill is received by the house after the first ten days of each session ; nor may any private bill Ije presented to the house after the first two weeks of each session ; nor may any report of any standing or select committee upon a private bill be received after the first six weeks of each session." (Sen. & Com. E. 49). Under the amended rules, any person seeking to obtain the passage of a private bill is required to dei)osit with the clerk a copy of the bill eight days before the meeting of the house, together with a sum sufficient to pay for the printing and translation.^ Under the old system, the time of the house was occupied even toward the latter part of the session with private bills, and the house was fi'e- quently unable to give them the full consideration all such measures should invariably receive. The time for x^resent- ing petitions and bills was practically extended throughout the whole session, and a very loose and careless system was encouraged. The object of the amended rule is to bring the bulk of petitions and bills within the first part of the session, but, though there is a decided improvement as compared with the old practice, the promoters of private bill legislation are still very remiss, and are likely to be so while they feel that the committee on standing orders is disposed to extend the time whenever an api)licatiou is made for that purpose. When it becomes necessary to extend the time for receiving petitions, the regular course is for the committee on standing orders to make a report,, recommending such an extension. The rule provides : " No motion for the suspension of the rules upon any petition ' Can. Com. J. [1876], 108. » Infra, p. 643. PETITIONS. 625 for a pi-ivatc bill is entertained, unless the same has been reported upon by the committee on standing orders," (Sen. E. 18; Com. W. 55.) Rule 69 of the Commons also provides that any motion in relation to the suspension of the rules, must be referred to the committees : " Except in cases of urgent and pressing necessity, no motion for the suspension or modification of any rule applying to private bills or petitions* for private bills shall be entertained by the house until after reference is made to the several standing com- mittees charged with the cousideration of private bills, and a re- port made thereon by one or more of such committees."' When the committee on standing orders, or other com- mittee charged with private bills, has reported in favour of extending the time, it is the duty of the chairman to make a formal motion in accordance with the recommendation. This motion may also extend the time for presenting pri- vate bills, or receiving reports from committees — the latter recommendation being only necessary in rare cases." In the session of 1879, the time expired before the committee on standing orders in the Commons was organized. A motion was then made in the house by the premier to ex- tend the time, as a number of i)etitions would be brought up before the committee could report regularly in favour of an extension.'^ Subsequently the committee on stand- ing orders reported in favour of extending the time for presenting bills, and the house agreed to the recommen- dation.* "When the usual time for receiving petitions has expired, * The Senate have no such rule respecting bills, but in order to suspend a rule one day's notice should be properly given under rule 18. Sen. Deb. [187'J],500. '' Can. Com. J. [1876], 102, 107,108 ; Ih. [1877], 38, 42, 44 ; Ih. [1878], 36, 93, 137 ; Ih. [1883], 104, 214, 235 ; Son. J. [187!»], 71, 83 ; lb. [1883], 58, 76. ^ Can. Com. J. [1870], 31 ; rule 55 was suspended by general consent. * See also, Senate journals, pp. 51, 52, 102 ; Com. J. [1870], 30. 40 626 I'RTVATE IULI.S. and the house is not disposed to extend it, occasions may arise when parties will be obliged to ask for legislation. Under such circumstant-es, the regular course is for the parties interested to present a petition praying to be per- mitted to lay before the house a petition for the passing of the necessary act, notwithstanding the expiration of the time for bringing up petitions for private bills. It is usual to allow such a petition to be read and received forthwith, and to refer it to the committee on standing orders. If the committee, after considering all the cir- cumstances of the case, report favourably, the petition for the bill will be at once presented, and leave given to read and receive it forthwith.' When the committee find that the reasons for delay in coming to the house for legisla- tion are not sufficient to justify a suspension of the rules, they will report accordingly, and no further progress can be made in the matter." Cases will be found in the jour- nals of the old legislature, of the house having allowed the presentation of petitions without the reference of a preliminary petition to the committee on standing orders.'^ In these cases the rules have been suspended by unani- mous consent, and the petition at once received. In one case, since 186 1, a petition was immediately received, and the bill at once presented and referred.^ But such in- stances of departure from correct practice are of very rare occuiTence, and can only be justified " in cases of ur- gent and pressing necessity."' In another case, stated to be of urgent necessity, the house consented to receive > Can. Com. J. [1877], 263, 267, 268 ; Ih. [1879], 357, 363 ; lb. [1880-1], 208 ; lb. [1883], 111, 214, 244, 254. In the Senate it is not the practice to refer the preUminary petition to the committee on standing orders, but to receive it forthwith ; Jour. [1879], 175, 254. Then the petition for the act is brought in and referred in due form to the standing orders com- mittee ; 76. 208, 219. - Can. Com. J. (1875), 246. • Leg. Ass. J. (1852-3), 347 ; lb. (1863, Feb. sess.), 320, 326. ♦ Can. Com. .1. (1873), 280. " R. 69, supra, p. 625. COMMITTEE OX STANDING ORDERS. 627 forthwith a petition praying that the rule requiring' pre- vious notice of an application for a bill be suspended. The committee on standing orders considered the application, and when they had reported favourably the member in charge of the bill moved for the suspension of the 51st rule, and presented the bill.^ Petitions in favour of, or in opposition to, private bills may be received at any time while the bill is under the consideration of the house and its committees, and are re- ferred to the committee on the bill, without a motion in the house, in accordance with rule 59 of the Commons, (Sen. K,. 60)." There is no rule laid down in the Canadian houses as respects the time when such petitions should be presented f they are frequently brought up and received after the bill has been referred to a select committee. * V. Committee on Standing Orders.— This committee is ap- pointed in both houses at the commencement of the session, and proceeds to work without delay. Under rule 53 of the Senate and Commons "petitions for private bills, when received by the house, are to be taken into consid- eration (without special reference) by the committee on standing orders, which is to report in each case whether the rule with regard to notice has been complied with ; and in every case where the notice shall prove to have been insufficient, either as regards the petition as a whole or as to any matter therein which ought to have been specially referred to in the notice, the committee is to recommend to the house the course to be taken in conse- quence of such insufficiency of notice." Under rule 51, common to both houses, notices must be ' Can. Com. .T. (1877), 79, 89, 90. - Can. Com. J. (1873), 39 ; Ih. (187()), 170 ; soiithoru railway iK^titione, Fob. 19, 1878. ■' The time is liniitod lor receiving petitions again.st bills in the English lioiise. May, 816. * Can. Com. J. (1870), 110, 171 ; lb. (1870), 123, 139, 143, 197. 628 I'PJVATE BILLS. given of " all applications for private bills properly the- unhjects of legislation by the Parliament of Canada, within the purview of the British North America Act, 186*7r whether for the erection of a bridge, the making of a rail- road, turnpike road, or telegraph line ; the construction or improvement of a harbour, canal, lock, dam or slide, or other like work ; the granting of a right of ferry ; the in- corporation of any particular trade or calling, or of any banking or other joint stock company" ; or "otherwise for granting to any individual or individuals any exclusive or peculiar rights or privileges whatever, or for doing any matter or thing which, in its operation, would affect the rights or property of other parties, or relate to any parti- cular class of the communit)% or for making any amend- ment of a like nature to any former act." The notice must clearly and distinctly specify the nature and object of the application, and (except in the case of existing corpora- tions) must be signed on behalf of the applicants. In the provinces of Quebec and Manitoba this notice must be in- serted in the official Grazette, in the English and French, language, and in one newspaper in the English, and one newspaper in the French language, in the district affected, or in both languages if there be but one paper ; or if there be no paper published therein, then (in both languages) in the Official Grazette, and in a paper published in an ad- joining district. In the other provinces, it is necessary to insert a notice in the Canada Grazette only, and in one newspaper published in the county, or union of counties afTected, or if there be no paper published therein, then in a newspaper in the next nearest county in which a news- paper is published. These notices must be continued in each case for a period of at least two months, during the interval of time between the close of the preceding session and the consideration of the petition, and copies of the newspapers containing the first and last inseition of such notice shall be sent by the parties inserting such notice to the clerk of the NOTICES OF APPLICATION. 629 liouse (or of the Senate) to be filed in the standing orders committee room. By rule 52, before any petition praying for leave to bring- in a private bill for the erection of a toll-bridge, is pre- sented to the house, the person or persons intending to petition for such bill shall, upon giving the notice pre- scribed by the standing orders, at the same time and in the same manner, give notice also of the rates which they intend to ask, the extent of the privilege, the height of the arches, the interval between the abutments or piers, for the passage of rafts and vessels, and shall also state whether they intend to erect a drawbridge or not, and the dimensions of the same. With a view to give full information of the orders on this subject, it is provided by the rule of both houses that the clerks shall during each recess of Parliament publish weekly in the Official Canada Gazette the rules respecting notices of intended applications for private bills and the substance thereof in the Official Gazette of each of the provinces ; and that they shall also announce, by notice affixed in the committee rooms and lobbies of the house, by the first day of every session, the time limited for receiving petitions for private bills, and reports thereon. The committee on standing orders have no authority to inquire into the merits of a petition ; that is properly the duty of the committee to whom the bill, founded on the petition, is subsequently referred ; but they must compare the petition with the notice, in order to see that the latter is not at variance with the former. If there be any in- formality in the notice or if the parties have neglected to give proper notice, the committee will report it to the house, and either recommend an enforcement or a relaxation of the rule, according to the circumstances of the case. It is the duty of the clerk of the committee to examine into all the facts with regard to the notice given on each petition, so that the committee will have before them such infor- mation as that officer can give. lu case of insufficiency 630 PR r VATIC r.ii.LS. in the notice, or other irregularity connected therewith.. the promoters of the bill, or their authorized agents, will appear l)efore the committee and make such explana- tions as are necessary to enable them to come to a con- clusion. The committee will always be guided in coming to a conclusion by the circumstances of the case under their consideration. It may not infrequently happen that they will dispense with the notice altogether or declare them- selves satisfied -yrith a partial and defective notice, when they are assured that no private interests will be affected injuriously by the irregularity. The reasons which gene- rally lead them to a conclusion will, however, be best understood by referring to the cases since 186*7, where they have reported in favour of dispensing with the notice, or have otherwise recommended a departure from strict usage. When the application whs based on resolutions unanimously^ adopted by the sharehoklei-s jit-esent at a sj)ecial general meet- ing, convened for the purpose of considering the same.^ When a notice has been sufficient in regard to time, but no mention has been made therein of the rates of toll to be levied by a Bridge Company; on condition that such provision be made in the bill as the private bill committee might consider necessary for restricting the rates of toll. ^ When the notice contained no men- tion of the proposed increase of capital, on condition that a pro- vision was inserted in the bill requiring the consent of the share- holders to such increase before it went into operation/' When a i-aihvay to be incorporated did not interfere with any existing in- terest,^ When the application has not been sufficiently explicit, but evidence was brought before the committee that the pro- 1 Can. Com. J. (1867-8), 35. ■' Can. Com. J. (1867-8), 1 68. * * Ih. (1869), 99. In other instances where the proposed amendments were not specifically stated in the notice, the committee have recommended invariably a similar provision in the bill; Ih. (1869), 113 ; lb. (1871), 139^ / 6. (1873), 81'. * Ih. (1870), 237. NOTICES DEEMED SUFFICIENT. 631 posed changes wei-e approved by the ^shareholders.' When the extension of a railway would run through an unsettled tract of country, where no private rights would be interfered with.- When a very numerously signed petition in favour of a bridge or other work in a public locality has been shown to the committee." When there are no existing rights to be affected, and no opposition likely to be offered to the project.* When the necessity for the application has ai-isen too recently to admit of the notice being given in time.' Whenever no private interests other than those of the petitioners are affected." When the committee have been convinced that the public in the locality specially affected has been made fully aware of the proposed legislation." When they have had evidence that the consent of the shareholders had been signified.^ In 1871 the notice for the Coteau Landing and Ottawa Railway was given only a few days before the presentation of the petition ; but the promoters explained that their action had been contin- gent on that of the legislature of Ontario, and on that of the corporation of Monti-eal City, and that as soon as they felt justified in going on with the work they published the requisite notice and held public meetings for the discussion of the project, at which it was most favourably received. Under these circum- stances the rule was suspended.* In another case of short notice, the petitioners were under the erroneous impression that they could obtain a charter from the governor in council under the general banking act ; and the rule was suspended especially in view of the fact that the whole banking system would come under review that session.'" On the petition of the Commercial Bank of New Brunswick for an act to limit the time within whicli their notes would be redeemable the notice was not complete as to time ; and to remedy this the committee suggested that in fixing ' Can. Com. J. (1873), 07. ■' lb. (1873), 110; Ih. (1874), 147. -' Ih. (1874), 54. * lb. (1874), 80. ''lb. (1^4), 21.) ; lb. (1883), 100. fiJ6. (1877), 74; 272. ' lb. (1870), 52. «/?>. (1867-8), 177. «/i. (1871), GO. '" lb. (1871), 78. 0;32 rnivATi: hills. Ihc time to ho limited by the bill such ii date be specified as would ^'ive to creditors ample notice of the limitation.' On the l)etition of the CJreat WcHtern Eailway for an act to legalize its issue of perpetual debenture stock under the act of a previous session, the committee found that the notice merely refen-ed to an extension of powers without any specific mention of these debentures. They were issued under the authority of the act in question, after it had passed both houses, but before it had received the royal assent. They were issued through inadver- tence, in consequence of information of the passage of the bill transmitted by telegraph, and the object of the application was to remedy the defect. Under these circumstances the notice was deemed sufficient,^ In another case the committee found the notice sufficient for a railway bridge, but would not recommend a relaxation of the rule concerning tolls on vehicles and foot pas- sengers, because they found there was opposition in the locality affected.'' In the case of an act respecting the Canada Landed Credit Co., notice was first published of an application to the local legislature of Ontario through a misapprehension, and the notice of application to the dominion parliament was only published subsequently, and consequently was not complete ; but the com- mittee had no hesitation in reporting favourably.^ From the foregoing precedents it will be seen that notice was given irregularly, or was defective in point of time ; but there are numerous instances where the com- mittee have felt justified in dispensing with a notice altogether. The petition of a board of trade for amend- ments to its act of incorporation, and to legalize the appointment of an official assignee made previous to in- corporation, was not considered one rec^uiring the pub- publication of notice.'' In the case of the Niagara Falls Gas Company in the state of New York, for authority to supply the town of Clifton with gas, no notice was given, ' Can. Com. J. (1S71), 140. - 1 b. (1874), 148. *J6. (1874), 149. * lb. (1876), 102, 126. * lb. (1867-8), 39. NOTICE DISPEmKD WITH. 633 but the committee recommended a siisx)eusioii of the rule iu view of the fact that there was before the house a peti- tion from the latter place, representing that it would be of great advantage to the town, and that no private rights would be interfered with.' The Vine Growers' Association petitioned the house for the repeal of section 1*71 of the act respecting the inland revenue (relating exclusively to the said association) and for certain amendments to the act incorporating that body. No notice had been given, but the committee recommended a suspension of the rule, as no other interests were likely to be affected, and as the act referred to was passed that same session, without the knowledge of the company whose interests were thereby most prejudi(^ially affected." The committee have also dispensed with a notice under the following circumstances : AVhen no interests except those of the petitioners are likely to be aftected by the proposed legislation.' When no exclusive privileges are asked foi' in the l)ill.^ When the omission has arisen from some accident, and not from any negligence on the ])art of the petitioner, and the absence of notice would not l>e pre- judicial to an}' private interests.' When it has been shown that the circumstances rendering legislation necessary were so recent that it was impossible to give the requisite notice ; ^ but generally on condition of the insertion in the bill of a provision that so much thereof as might affect the interests of the shareholders should not take effect until their consent should have been obtained at a special general meeting.' When the committee have hiul abundant evidence that all parties likely to be affected were fully informed of the application, and that there was no opposition to ' Can. Com. J. (1S()7-S), 177. ■'Ih. (18()7-8), 207. ■•* lb. (1875), 216 ; ll>. (1870), 102. * lb. (1867-8) 210. 5 lb. (1869), S.->. ^ lb. (1874), 166 ; Ih. (1876), 170 ; Son. J. (1883), 188, 232. ' Can. Com. J. (1869), 185. (j;}4 PRIVATE BILLS. ilic pi-ojccl.' When Ihc (•(Miimittcc have found that an act was iiocossjil-y merely on a(;c()unt of some ambiguity of expression in !in act of a previous scHslon." When it is, or can be, provided in (lie l.ill tl)at no injury to any party shall arise from the absence of notice.' When it is shown that the project is one of urgency orofgi-eat pulilic importance, and affects no vested rights/ When tlie notice has been published in the Gazette but not in a local papci-, and it has been shown that the only private interests to bo alfcctcd arc those of the shareholders, whose con- sent is provided for by a clause in the bill." When no paper is published in the locality and the public has been otherwise fully made cognizant of the proposed application.*' When no notice of the intended legislation could be given in the locality or in its neighboui-hood." When the petitioners have been willing to submit the matter to a vote of the shareholders before taking action upon it ; and provision is inserted to that effect in the bill.'^ When the majority of the shareholders reside in Great Britain and similar provision is made.'' When notice had been given in a local paper only, and it was shown that the proposed work was confined to a particular locality.^" When no notice had been published in a local paper by the Montreal Northern Colonization Railwa}' Company, the committee directed that notice of the application should be given to the St. Lawrence and Ottawa Railway Co. which had power to build a railway bridge in the same locality, and as the rights of the general public could not be prejudicially affected, the notice in the Gazette and Montreal papers, so supplemented, was considered sufficient." When the ^ Can. Com. J. (1870), 44. In this case tl)e company first applied to the Quebec leoris on priN ;ilt' l)ills in the Commons lapsed accidentally, and il was not competent for the standing orders commit- iw. to recommend an extension of time. It was then con- sidered necessary to give a formal notice of a motion to revive the committee. The standing orders committee then met and made a report to extend the time for peti- tions as soon as the house had agreed to the above motion.' In accordance v^ith English practice, all inquiries as to compliance with the standing orders affecting private bills properly fall within the sphere of the functions of this committee, and not of the committee on a particular bill.^ VI. First and Second Readings.— "VYhen the committee on standing order.s have reported favourably on a petition, the member who has the bill in charge, can present it im- mediately in accordance with the rule : " All private bills are introduced on petition and presented to the house upon a raotion foi- leave, after such petition has been favourably reported on b}^ the committee on standing orders." (Com. E. 56, Sen. E. 57.) It is usual to j)resent such bills when motions are called during progress of routine business. The motion for leave must be in writing, as in the case of public bills, and the fees for printing must be paid before the bill can be pre- sented.^ All the rules that apx^ly to public bills are ap- I)licable to private bills in their x)rogress through the houses,' unless there are standing orders specially refer- ring to the latter. For instance all bills are read a first time without amendment or debate in the Commons, though the house may divide on the question.' If a bill has been presented and read a first time before the com- ' Y. & p. p. 196 ; Jour. pp. 150, 156. -' ^lay, S72-3. Infra, p. 655. •' See infra, 643, sec. vii., where explanations are given as respects all fees and charges. * See chapter xviii. on public bills. ■■■ Com. 11. 42 ; Can. Com. J. (1877), 143, 144, 169 ; Sen. J. (1883), 49. FIRST BEADING. 639 mittee on standing orders have reported on the petition, the order for the second reading must be forthwith discharged, and the bill withdrawn until it can be in- troduced regularly.' If the committee on standing orders recommend a suspension of rule 51 respecting notice, the member in presenting the bill should also move in accordance with that recommendation." If the time for receiving private bills has expired, a member cannot regularly present a bill, unless the committee on standing orders or other committee on private bills have first recom- mended a suspension of rule 49, on application having been made to them by the member interested. The rule having been suspended on motion, in accordance with the recommendation of the committee, the bill may then be regularly introduced.^ The first and second readings take place almost invariably on separate days ; only in cases of urgency, towards the close of session, and under excep- tional circumstances, will the house deviate from this wise practice.^ It is necessary to have all proposed rates, tolls, fees, or fines printed in italics — technically considered as blanks to be filled up by the committee.^ The bill " must also have attached to it a copy of any letters-patent or agree- ment" when its object is to confirm such.** When the rule has not been comj^lied with, a private bill committee has reported adversely ; but in such a case the omission may be rectified in committee of the whole on the bill.^ 1 Can. Com. J. (1877), 50. - lb. (1876), 103 ; lb. (1877), 90. •' Hochelaga Building Society, March 15, 1878. On a previous day Mr. Jette moved for leave but had to withdraw his motion until the committee reported. Sometimes the standing orders committee, in a case of urgency, will report in favour of eusj^ending both rules 49 and 60 ; Can. Com. J. (1873), 267. ' Can. Com. .J. (1879), 326, 373 ; Sen. J. (1879), 233. In the Senate the rules are formally dispensed with in such a case. lb. (1883), 270. ^ Todd's Private Bill Practice ; May, 797. '• Com. R. 57 ; Sen. R. 58. ' Bcssemer's patent, 1857. 040 I'lUVATE BILLS. Trcvious to IHdT, private bills were referred to the select .standing committoes after the second reading, but in that year when the rules were revised and anew code adopted for the dominion Parliament, the reference was ordered to be made in the Commons after the first reading.^ In 1873 the IIous(^ of Commons reverted to the old and more cor- rect practice of referring all bills after the second reading." The Senate, however, never deviated from this practice.^ When the order of the day has been read for the second reading of a private bill, the member will make the usual motion. At this stage counsel may be heard at the bar for and against the bill, but the necessity for this step has only arisen in a few cases in Canada, and, in fact, there have been no instances since 1867.' The opponents of a bill find that the more convenient course is to explain their objections fully before the committee to which the bill may be referred. It is only on rare occasions that the second reading of a private bill is opposed ; the practice is to allow all discussion as to its expediency to take place first in the committee.'^ Sometimes, however, if it is thought that the bill is properly one that ought to be dealt with by the local legislature of a province, objection may ' Can. Com. J. (1867-8), 43, 115, 125. '' lb. (1873), 351, 384. ' In 1861 the legislative council of Canada adopted rules for private Viills identical with those of the assembly. The Senate made no chani^e in 1807-8, as to reference to select committees. The rules of the two 1 louses are now practically the same; when amendments are made in the one house, it is usual to make similar changes in the other, so that there may be uniformity of practice. * King's College, 1843, 1844-5 and 1846 ; ^Montreal Consumers Gas Co., 1840 ; Great Southern E. R., 1857. ^ This practice has been found particularly convenient in the case of railway bills, involving necessarily many diverse interests of a compli- ••atod character in not a few instances. " If it was understood with regard to banking, insurance, canal and railway bills, that they were to have a long discussion in the house, on the principle involved, these committees would lose their chief practical value."— Sir J. A. Macdonald, 1879. See Can. Hans. (1879), 107-9 ; 1391-7. lb. (1880), 588 (Mr. Helton). SECOND READING. 641 be taken at this or at any other stage of the measure/ Or if there are other reasons of a public nature against the passage of a bill, its second reading may be very properly opposed." The principles which should guide the house on the second reading of a private bill are thus clearly laid down by the most eminent English authority of modern times : " The second reading- corresponds with the same stage in other bills, and in agreeing to it, the house affirms the general princi- ple, or expediency of the measure. There is, however, a distinc- tion between the second reading of a public, and of a private bill, which should not be overlooked. A public bill being founded on reasons of state policy, the house, in agreeing to its second read- ing, accepts and affirms those reasons ; but the expediency of a private bill, being mainly founded upon allegations of fact, which have not yet been proved, the house, in agreeing to its second reading, affirms the principle of the bill, conditionally, and sub- ject to the proof of such allegations before the committee. Where irrespective of such facts, the principle is objectionable, the house will not consent to the second reading; but otherwise the exjjedi- ency of the measure is usually left for the consideration of the committee. This is the tirst occasion on which the bill is brought before the house otherwise than pro forma , or in connection with the standing orders ; and if the bill be opposed upon its pi-inciple it is the proper time for attempting its defeat." ^ "When the bill has been read a second time, the member interested will move that it be referred in accordance with the rules of the two houses : Senate Rule 60. ' " Every private bill, after its second reading, is referred to the standing committee on private bills if appointed, or to some other 1 Bridge over the river L'Assomption, 1875 ; Hans. 893-4. 2 Street R. R. Co. bill in E. Commons, IGth April, 18G1 ; 162 E ^ans. (3), 641. •' May, 799-80. * Tlie rule of the Senate also contains a provision for reference of bills, after first reading in case of a question of jurisdiction arising. See supra, p. 607. 41 642 PRIVATE BILLS. coninutlcc of the Hamc chui-actci-; and all petitions before the Senate, for or against tlio bill, are considered as referred to such conimiKco." Commons' Rule 59. " Every private bill, when read a second time, is referred to the standing committee charged with the consideration of such bills. ]iills relating to banks, insurance, trade and commerce to the committee on banking and commerce ; bills relating to railways, canals, telegraphs, canal and railway bridges, to the committee on railways ; the bills not coming under these classes to the com- mittee on miscellaneous private bills,^ and all petitions for or ajrainst the bills are considered as referred to such committee." All the proceedings in the progress of a private bill are carefully provided for in the standing orders, with the view of informing all the parties interested. Under the rnles of the two houses a private bill register is kept in one of the offices. A clerk enters regularly in this book " the name, description, and place of residence of the par- ties applying for the bill, or of their agent, and all the proceedings thereon, from the petition to the passing of the bill — such entry to specify briefly each proceeding in the house or in any committee to which the bill or the petition may be referred, and the day on which the com- mittee is appointed to sit." This book is open to public inspection daily during office hours.^ Sometimes, when the house discovers that a bill has been referred to the wrong committee, or that it can be more conveniently considered by another committee, a motion will be made to discharge the previous order of re- ference, and send it to the proper committee.'^ Sometimes ' For instance, bills respecting bridges, not railway bridges, are referred to the committee on private bills. Can. Com. J. (1880), 100. But bills for incorporation of navigation and steamship companies [/6. (1867-8), 216 ; Ih. (1873), 281; lb. (1875), 153; lb. (1880-1) Acadia S. S. Co. ; lb. (1882)^ 71, 146], have been generally sent to banking and commerce committee. - Sen. R. 62 ; Com. E. 70. '' Can. Com. J. (1877), 127 ; also (1880), 77 ; also (1882), 290. In case of a new reference after the bill has been posted for a week, the terms of rule REFERRED TO A COMMITTEE. 643 ilie committee will themselves report that it should be «o referred and a motion will be made accordingly/ In- structions are sometimes given to committees with re- ference to particular bills. In 1863, the committee on banking having under consideration a bill to repeal the acts incorporating the Colonial and certain other banks, that had forfeited their charters, made a report that they be empowered to extend their inquiries to any other banks that might be similarly situated ; and the house immediately gave the necessary instructions.^ If it should be necessary to withdraw a bill after it has been referred, a motion should be made first to discharge the order and then to withdraw the bill."' In the session of 1882, it was ascertained in the Senate that a bill respecting the Quebec timber company, which had passed the private bill committee, and was on the order paper for the third reading, contained certain pro- visions empowering them to borrow money and make loans on the security of stock, deposit receipts, etc. The order was thereupon discharged and the bill referred to the committee on banking who made further amendments^* Vn. Fees and Charges.— Under the rules, as amended in X8'76, all bills should be printed before the first reading, -in the two languages, at the expense of the promoters. The rules provide for the printing expenses as follows : "Any person seeking to obtain any private bill, giving any ■exclusive privilege or profit, or private or corporate advantage, or for 60, providing for such posting are considered sufficiently complied with. If the full week's notice has not been given when a new reference is made, then it will be necessary only to post it for the time required to make up a full week. Votes and P., 1875, p. 235 ; Ih. 1882, p. 370. In the last case the week's notice had long since been given, and hence there is no refer- ence to bill at the end of the votes. ' Niagara District Bank, 1863. ■^ Ass. Jour. (1863, August session), 102. See also, lb. (1852-3), 290, 340 ; Ih. (1854-5), 177, 197, 229. ^ Can. Com. J. (1878) 60. ' Sen. J. (1882), 178 ; Hans. 285-6. 644 PRIVATE BILLS. any amendment of any former act, shall be required to deposit with tlic clei-k of the house, eight days before the meeting of the same, a copy of Huch l)ill in the English or French language— with a sum sufficient to pay for translating and printing the same — (jOO copies to be printed in English, and 200 copies to be printed in French — the translation to be done by the officers of the house, and the printing by the contractor." ' The coucluding part of the same rule provides for the payment of a fee after the second reading : " The applicant shall also be required to pay the accountant of the house (or clerk of the Senate), a sum of two hundred dollars, and the cost of printing the same for the statutes, and lodge the receipt for the same with the clerk of the committee to which such bill is referred — such payment to be made immediately after the second reading, and before the consideration of the bill by such committee." Under the same rule " the fee payable on the second reading of any private bill is paid only in the house in which such bill originates, but the cost of printing the same is paid in each house." In case the bill is withdrawn^ or otherwise fails to be- come law, the fee of $200 is refunded, generally, and pro- perly, on the recommendation of the committee on the bill.'^ Sometimes the committee will recommend that it be refunded on other grounds : " Because a bill has been rendered necessary by the action of the general legislature.^ Because the necessity for its passage arose from no fault of the promoter, but from circumstances ' Sen. R. 59 ; Com. R. 58. The Senate rule omits the words in italics ; but it is practically the same as that of the Commons. * Can. Com. J. (1876), 212 ; also (1880-1), 355. If the bill fail or be with- arawn in the house, then the member will be allowed to move directly for refunding of fees. Yarmouth Dyking Co. bill, p. 181, Jour. 1879 ; also (1880), 266. Preamble not proven (1880), 299, 300 ; lb. (1880-1), 215 : lb. (1882), 425. =• Can. Com. J. (1879), 224, 344 ; lb. (1880), 99, &c. ; lb. (1880-1), 215, c^cc: Ih. (1882), 297, &c. ; Sen. J. (1882), 171. * Can. Com. J. (1870), 175. FEES. 645 beyond his control.^ Because the committee have materially diminished the powers asked for.^ Because it is not liable to the fee and charges levied on private bills.^ Because it is a mere amendment to the general act respecting banks and banking.* Because a project is a great public benefit to a locality.^ Because the promoters of the bill have agreed to accejjt the provisions of a general act passed that session." Because it has to a great extent been superseded b}^ the provisions of a public bill.' Because a bill has been consolidated with another, on which fees are paid.'^ Because it is a mere amendment to a previous act." " Sometimes the committee will make no report at all on a bill, and then the member interested may move that the fees be refunded " inasmuch as the committee have not reported on the same," or "it is impossible to obtain a quorum." ^'^ When a Commons' bill is lost or not proceeded with in the Senate, leave will be given in the Commons to refund the fees which are always payable in the house where the bill originates." When a bill is lost in the house itself by an adverse motion, the fees are also gener- ally refunded. '■ The fees paid on a bill that had not be- come law have been refunded in a subsequent session.^^ When it is not intended to go on with a bill, the regular course is to move at the same time for leave to withdraw it and to refund the fees.'* It is also usual, though not necessary, to add, " less the cost of printing and transla- ' Can. Com. J. (1873), 212. - lb. (1874), 167. ■'• Geographical Society, 1879 ; Baptist Union, 1880 ; Sisters of Charity In the N. W. T., 1882 ; Royal Society of Canada, 1883. * Can. Com. J. (1877), 93. 5 Ih. (1877), 147 ; lb. (1879), 425. « lb. (1877), 245. ' lb. (1878), 148 ; Hans., April 5. s lb. (1879), 324 ; lb. (1880-1), 213. « lb. (1883), 192. >" lb. (1875), 343 ; lb. (1880), 280 (no quorum). 1' lb. (1874), 349 ; lb. (1880-1), 334 ; lb. (1882), 409. 1^ lb. (1877), 353. '' lb. (1875), 170 ; lb. (1882), 207 (bill lost in the Senate). '* lb. (1877), 245. G4«; PRIVATE BILLS. tion "—the fee to be refunded being the $200 paid after- second reading. In 1882, at the end of the session, a bill was deferred for three months on motion of the member in charge, who was unwilling to agree to amendments made by the Senate, and the fees were thereupon ordered to be refunded.' VIII. Committees on Private Bills.— Lists of the committees- to which private bills are referred under the rules^ are- hung up ill conspicuous parts of the houses for the infor- mation of members and all interested parties. It is also ordered : " No committee on any private bill originating!; in this house (in the Senate) of which notice is required to be given, is to con- sider the same until after one week's notice of the sitting of such committee has been first affixed in the lobby; nor in the case of any such bill originating in the Senate (House of Commons) until after twenty-four hours like notice." (Com. E. 60, Sen. E. 61.) This rule is often suspended on the recommendation of one or more of the committees charged with the considera- tion of private bills. ' In a case of urgency it is suspended on motion, especially in the case of Senate bills ; but only when the session is drawing to a close, and there is no opposition to the bill.' Eule GO of the Commons also provides : " On the day of the posting of any bill the clerk of the house shall cause a notice of such posting to be appended to the printed votes and proceedings of the da3^" ' And under a rule common to both houses : " The clerk of the house shall cause lists of all private bills and • Can. Com. J. (1882), 511 ; Hans. 1571-2 (telegraph bill). '^ Supra, pp. 641-2. » Can. Com. J. (1874), 201, 203 ; lb. (1880-1), 254 (S. 0. Com.) ; lb. (1883) 221 ; Sen. J. (1880) 220 ; Deb. 456-7. * Can. Com. J. (187G), 231 ; Northern E. R. (1877), 267 ; Manitoba Junc- tion K. K. (1877), 284 ; Senate bills (1878), 160. ^ See V. & P. (1878), 101, 114, c^c. IN COMMITTEE. 64*7 petitions for such bills upon which any committee is appointed to sit, to be prepared daily by the clerk of the committee to which such bills are referred, specifying the time of the meeting and the room where the committee shall sit, and shall cause the same to be hung up in the lobby." (Sen, E. 63, Com. E. 71.) The rules that goyern all committees have been fully explained in a previous chapter of this work.^ Since the session of 1867-8 the committees on private bills have had the power to examine witnesses upon oath, to be adminis- tered by the chairman, or any member of such committee.^ The rules of the two houses order : — " All questions before committees on private bills are decided by a majority of voices, including the voice of the chairman, and whenever the voices are equal the chairman has a second or casting vote." (Sen. E. 65, Com. E. 62). When a committee has been regularly organized the clerk will lay before it the different matters refen-ed to it, in the order of their consideration. Sometimes bills will be deferred, or a day fixed for their consideration by an arrangement between the parties interested. The com- mittee may in such a case make the bill the first order of the day, just as is done in the house itself in similar matters. All petitions for or against a bill are laid before the committee, and the petitioners, either by themselves or by their agents, will be present to promote their respective interests. Petitioners may pray to be heard against the preamble or clauses of the bill ; some against certain clauses only ; others may ask the insertion of protective clauses, or for compensation for damages which will arise under the bill. Unless petitioners pray to be heard against the preamble they will not be entitled to be heard, nor to cross-examine any of the witnesses of the promoters upon the general case, nor otherwise to apj)ear in the proceed- * Chapter xvi. ^ 31 Vict., c. 24. See supra, p. 400. 048 PRIVATE BILLS. ino-s ol' the committee until the preamble has been dis- l)()M'd of. Nor will a general prayer against the preamble entitle a petitioner to be heard against it, if his interest be merely affected by certain clauses of the bill.' If the pi'titiou against the bill is not sufficiently explicit the committee may direct a more specific statement to be given in writing, but limited to the grounds of objection which had been inaccurately specified." If cases arise where an informal petition has been referred through inadvertency, the committee will take cognizance of the matter, and petitioners will not have the right to be heard on such a petition. It is not regular to add anything to a petition, in case a material part has been omitted by a mistake.' Sometimes petitions relative to a bill under the considera- tion of a committee will be received as soon as presented in the house, so that they may go immediately before the committee.' It is ordered by the rule of the Senate and Commons : *' All persons whose interests or property may be affected by any private bill shall, when required so to do, appear before the standing committee touching their consent, or may send such consent in writing, proof of which may be demanded by such committee. And in every case the committee upon any bill for incorporating a company may require proof that the persons whose names appear in the bill as composing the company are of full age and in a position to effect the objects contemplated, and have consented to become incorporated." (Sen. E. 64, Com. E. 61.) On the day appointed for the consideration of a private bill the parties interested will appear before the com- mittee, and the chairman will first read the preamble, which should be always first considered in a select com- 1 May, 819. •■• May, 819 ; E. Com. S. 0. 128 ; Todd's Private Bill Practice, 73. ' 83 E. Hans. (3), 487. * Can. Com. J. (1876), Mail Printing Co., 171. lb. (1878), Ottawa Agricul- tural In! Lords a different rule has prevailed aud shareholders who have dissented from the bill at the inecting called in pursuance of certain orders of that house, are exprcsssly permitted to be heard, and have even been heard without such dissent.^ The English authorities give very full details of the various proceedings before committees on opposed private bills. The reports of the committees of the Canadian legislatures, on the other hand, have always been very meagre, and it is impossible to make up any satisfactory summary of their x^'ocedure from the records of the two houses. The following summary, chiefly taken from Sir Erskine May's exhaustive treatise, will probably be suf- cient for general purposes •} " When a petitioner has established liis locu& standi to the satis- faction of the committee, he may proceed to address them either by himself or by counsel. Or he vaaj reserve his speech until after the evidence. Witnesses may be called and examined in 8up])ort of the petitions ; cross-examined by the counsel for the bill, and re-examii\ed by the counsel or the jjeti- tioners; but counsel can only be heard, and witnesses examined on behalf of petitioners, in relation to matters referred to in their petitions. As a general rule, each witness is to be examined or cross-examined by the same counsel. Commit- tees have also resolved that no counsel should be permitted to cross-examine witnesses, who had not been present dur- ing the examination-in-chief, nor to re-examine them unless he had been present dm-ing the examination-in-chief, nor to re- examine them unless he had been present during the entire cross- examination. When the evidence against the preamble is con- ducted, the case of the petitioners is closed, miless an opening speech should have been waived ; and the senior counsel for the bill replies on the whole case. If the petitioners do not examine witnesses, the counsel for the bill has no right to a reply ; but in some special cases where ncAV matters have been introduced by ' May, 837. ' May, 837, 881 ; Lord's S. 0., Nos. 62-60. ' 859 ct scq. IN COMMITTEE. 651 the opposing counsel (as for example, acts of Parliament, pre- cedents, or documents not previously noticed) a reply strictly con- fined to such matters has been permitted. When the arguments and evidence upon the preamble have been heard, the room is cleared, and a question is put : " That the preamble has been proved," "which is resolved in the affirmative or the negative, as the case may be. If the committee decide the foregoing question in the affirmative, the parties are called in, and made acquainted, with the decision, and the clauses are then taken up one by one,^ and dealt with just as in the case of committees of the whole on public bills.^ If petitions have been presented against a clause, the parties will be heard for and against. Tolls and i-ates are now in- serted regularly in the bill — the same being indicated by italics as previously stated. - When any amendments are made in a bill, or clauses added, they must be signed on the margin with the initials of the chairman's name in accordance with the following rale : " The chairman of the committee shall sign with his name at length, a printed copy of the bill, on which the amendments are- fairly written and shall also sign with the initials of his name, the several amendments made and clauses added in committee ; and another copy of the bill, with the amendments written there- on, shall be prepared by the clerk of the committee, and filed in the private bill office or attached to the report." (Sen. E. 69, Com. E. 66.) If the committee decide that the preamble has not been proven, no further proceedings will be had in the com- mittee on the bill, but the fact must be reported to the house in conformity with the following rule : " When the committee on any private bill report to the house that the preamble of such bill has not been proved to their satis- faction, they must also state the grounds upon which they have > Grand Trunk Arrangements' Act [1867-8], App. No. 3. ^ No previous resolution passed in a committee of the whole as to rates,, tolls, or penalties, is now necessary under modern practice ; Todd's Private Bill Practice, 88-9. Supra, p. 525. i;r,2 PRTVATK BILLS. arrived at siicli u decision;^ and no bill so J-eported upon shall be pjai-cd on the orders of the day, unless by special order of the house." (Sen. \\. 68 ; Cora. R. 65.) The (Committees on private bills have reported against bills on various grounds, as follows : ]3ecau8e no sufficient evidence was offered in favour of the pre- amble.-' Insufficient information or antagonistic evidence.-^ No proof of the consent of the parties interested.* That the peti- tioners against the measure ai-e as numerous as those in ite favour or more numerous.'' That there is great difference of opinion in the locality affected, as to the expediency of the mea- sure.'* That legislative interference is not desirable or neces- sary." That it would interfere with law suits pending,^ or with existing rights.'' That the powers sought for would not advance the interests of the locality.^'' That the bill asked for an extension of the powers of a certain company to purposes entirely foreign to its original charter". That it contained most unusual pro- visions.^" That it Avas in the power of the executive government to carry into effect the objects contemplated by the bill ; ^^ or in ■the power of the court of chancery to do so." That the informa- tion was insufficient as to the possible effect upon the navigation of a navigable stream and upon private rights.^' Because it was necessary to give certain bondholders abundant opportunity of ' Can. Hans. [1880], 1685 ^Mr. Blake) ; Sen. J. [1880-81], 211 ; Hans. > 021. - Gatien estate, 1857 ; La Banque Jacques Cartier [1878], 99. •' Onslow survey, 1862. * Lennox and Addington separation, 1860 ; Russell estate, 1865. '■> Stanbridge division, 1866 ; Berlin town limits, 1865. * Clifton division, 1866. ■ Quebec stevedores' incorporation, 1861 ; Montreal licensed victuallers, 1865 ; Tluuider Bay & Minnesota R. R. Co., 1882 ; St. Lawrence Bridge ^ind Manufacturing Co., 1883. '^ Peterborough & Port Hope R. R., 1862. » Etcheiniu bridge, 1862 ; CUfton suspension bridge, 1858. '" St. Lawrence and Bay Chaleurs land and lumber company, 1858. " St. Clair and Rondeau plank road company, 1857. '= Richelieu Co., 1862. " Bill to vest in certain persons a portion of Church street, London, 1852-3. '* Watson's Ayr mill dam, 1856. '■■• Cordwood on river St. Francis, [1877], 245. IN COMMITTEE. 65 S considering the effect on their securities of the provisions of a bill.^ Because the provisions of a general act afforded sufficient facilities to the promoters to obtain the powers asked for, and consequently a special act of incorporation was unnecessary without special reason.^ A committee will sometimes make changes in the pre- amble, and in such a case they must also report the fact to the house in conformity with the rule as follows : " The committee to which a private bill is referred, shall report the same to the house in every case; and when any material alteration has been made in the preamble of the bill, such altera- tion, and the reasons for the same, are to be stated in the report."^ (Sen. E. 61, Com. E. 64.) The committee may sometimes propose such alterations in a bill that the promoters will abandon it rather than accept the new provisions. For instance, in the case of the Canadian Mutual Life Insurance, in 1868, the committee were unwilling to recommend its passage — the principle of mutual life insurance being then new to the country — unless the promoters were prepared to provide a guarantee capital with not less than $50,000 paid — a provision which was not accepted by the parties interested.'* By a rule of the two houses, " It is the duty of the select committee to which any private bill may be referred by the house to call the attention of the house specially to any provision inserted in any such bill that does not appear to have been contemplated in the notice for the same, as reported upon by the committee on standing orders." (Sen. E. 66, Com. R 63.) In case the committee do not so report, and a member is of opinion that certain provisions of a bill are not con- ^ Canada Southern R. R. Co., (1876), 231. '' Jour. (1880-1), 215. * Grand Trunk arrangements [18G7-8], App. No. 3 ; Labrador Co. [1873], 252 ; American Electric Light Co. [1882], 165 ; Williams Manufacturing Co. [1882], 257; Wesleyan Methodist Society [1883], 176. * Can. Com. J. (1867-8), 345. f,r,4 PRIVATE BILLS. leniphiU'cl ill ihc notice ibr the same, he may raise a point o^0o E.& Port Hope R. R., 1862, Can. Leg. Ass. "128 E. lieu Co., 1862 ; 129 E. Com. J. (Bolton Le Sands, &c.), 174. COMMITTEE OF THE WHOLE. 661 It has been decided in the English Commons : " When a committee have resolved that the preamble of a pri- Tate bill has not been proved, and ordered the chairman to report, it is not competent for them to reconsider and reverse their deci- sion, but that the bill should be re-committed for that purpose."^ But it will be only in a very exceptional case that the house will depart from the general principle that guides them in the consideration of private bills, and that is, of in- terfering as little as possible with the decision of a commit- tee which has had abundant opportunity of considering the whole question. It is very rarely that the committee of the whole on a private bill will interfere with the bill, as it comes from a select committee.^ The bill, as amended in a select committee, is not reported from committee of the whole with amendments ; that is only done, when it is actually amended in committee of the whole,^or when the bill has come from the Senate, as in the latter case, it is necessary to send the amendments for concurrence to the upper chamber/ Such amendments must be read a second time and concurred in, as in the case of public bills.' But the right of a committee of the whole to make any important amendment is limited by the following rule : " No important amendment tuvlj be proposed to any private hill, in a committee of the whole house, or at the third reading of the bill, unless one day's notice of the same shall have been given."« (Sen. E. YO ; Com. E. 67). It is the correct course, in all cases where it is necessary to make material amendments, to refer the bill back to the select committee, to which it had been i)reviously sent, ' May, 862-3 ; Shrewsbury & Welchpool E. E. bill, 1858. - Todd's Private Bill P., 102-3. ■' Can. Com. J. (1877), Springhill & Parrsborough R. E. 122. ' Ih. (1878), Fishwick's Express Co., 160. ■' Supra, p. 547. -« V. & P. (1878), 160, 178 ; Sen. Deb. (1878), 460. 662 I'lnVATK r.iLLS. iiisiciid of considering- tho proposed changes in committee of the wliolc' In the clinptcr on public bills, the rules in committees of tho whole and on the third reading are fully explained, and as these apply to private bills — except where there is a standing order on any particular point, — it is not neces- sary to recapitulate them here. But there is one point to which reference may be made, and that is, in case it is necessary to make certain provisions in a private bill afr«M-ting the public revenues or expenditures, those provi- sions must be iirst introduced in the shape of resolutions with the consent of the government, and when these have been passed in committee of the w^hole and agreed to by the house, they must be referred to the committee of the whole on the bill.' • XI- Thu'd Reading.— On the third reading in the Commons no amendment may be made except of a verbal nature ; and if it is wished to make any material change the bill must be referred back to committee of the whole. Under the rule previously cited, a day's notice must be given of any important amendment at this stage.^ A bill may, however, be amended in the Senate on the third reading after notice.^ In accordance with English practice, the consent of the governor-general may now be signified in the case of a bill affecting the interests of the croAvn ; but in the Canadian Commons this consent is given most fre- quently at the second reading." The member in charge of the bill will move : " That the bill be now read a third ' Can. Com. J. (1877), 149,178 (Springhilland Parrsborough,and Picker- ing harbour bills.] '' Leg. Ass. J. 1866 ; Com. J. 1867-8 ; Canada Vine Growers' Association. In thie case parliament extended the period mentioned in an act of the old legislature of Canada, exempting the association from excise and other duties. ^ Supra, p. 661. * Sen. J. (1882), 277 ; lb. (1883), 205. See m.ipra, p. 661. * Supra, p. 473. THIRD READING. 663 time " ; and when that motion has been agreed to, the final motion will be made, " That the bill do pass, and that the title be, etc." ; and now is the usual time to amend the title.^ Sometimes on the motion for the third reading a bill will be again referred to a select committee for the purpose of further considering it/ It sometimes happens at the end of the session that there may be urgent necessity to pass a private bill through all its stages, without reference to the usual com- mittees, and in such a case the first motion must be to suspend the rules — the house being alwa^'s ready to acquiesce when the circumstances are such as to justify such a procedure.^ 1 Can. Com. J. (1870), Trust Co. of Canada. ^ Springhill & Parreborough Co. Com. Hans. (1877), 813-4. The ground was taken that the allegation made in this bill, that the work was for the general advantage of Canada, was not strictly true. - P. E. Island Bank, Com. Jour. (1882), 66 ; Hans. p. 72. Ontario Bank, 1882, Votes and Proceedings, p. 573. Sen. J. [1883], 270 (Railway Trust and Construction bill); Sen. Hans., p. 595. CHAPTER XXL PRl VA TE BILLS.— Coudvded. I. Private Bills in the Senate.— Bills imposing rates and tolls.— II. Bills not based on a petition in the Senate and Commons.— III. Amendments made by either house.— IV. Divorce Bills— Pubhcation of notice; pre- sentation of ])etition; service of notice; exemplification of proceedings in courts; first reading of bill ; cost of printing; second reading ; com- mittee proceedings; report.— V. Divorce bills in the Commons. I. Private bills in the Senate imposing Rates and Tolls.— Private bills, which impose rates and tolls, may be introduced in the Senate and accepted by the House of Commons, in conformity with the standing order of the English House to the effect that it " will not insist on its privileges with respect to any clauses in private bills sent down from the House of Lords which refer to tolls and charges for ser- vices performed, and which are not in the nature of a tax, or which refer to rates assessed, and levied by local authorities for local purposes."^ For instance, a bill respecting the Kincardine harbour was sent up from the Commons in 18*7*7, but it transpired that the schedule of tolls had not been added in the private bill committee of the lower house. The schedule was thereupon quite regularly added in the Senate and agreed to by the Commons.^ ' S.O. No. 226 ; May, 758. Supra, p. 515. -' Sen. Deb. [1877], 300. It was first suggested in the Senate to send the bill back to the Commons, but the fact was overlooked that the latter could not amend their own bill, but were limited to consequential amend- ments. See also debate on the marine electric telegraph bill [1875], 422-3. Also, 35 Vict., c. 1, s. 5, Dom. Stat. NOT BASED OX PETITION. 665 II. Bills not based on Petitions.— When a private bill is brought from the Commous it is at once read a first time without amendment and debate, and ordered for a second reading on a future day.' If the member in charge of the bill is absent, and no motion is consequently made for the second reading, he must take the first opportunity he has for placing it on the orders.^ If no petition has been presented to the Senate and reported upon by the com- mittee on standing orders, it must go before the second reading to that committee in accordance with the follow- ing rule, common to both houses : 56. " All private bills from the House of Commons (not being based on a petition which has already been so reported on by the committee) shall be first taken into consideration and reported on by the said committee in like manner, after the first reading of such bills, and before their consideration by any other stand- ing committee." In 1881 the Acadia Steamship Company Bill was re- ferred under such circumstances to the committee on standing orders, who recommended the suspension of rule 51 on the ground that no private rights would be interfered with, and the undertaking would probably be a public benefit.'' In 1883 the Winnipeg and Hudson's Bay Eailway and Steamship Company Bill was so referred, and the com- mittee reported in favour of the suspension of the rule, because the necessity for legislation had only lately arisen and it would be competent for the committee to whom the bill would be referred to provide that no injury to any party should arise therefrom.^ In such cases the proper practice is first to move the suspension of the rule in accordance with the report, and, 1 Sen. J. [1881], 195, etc. •* Supra, p. 257. » Sen. J. [1880-81], 223, 227. * Sen. J. [1883] 181, 188. Also, European, Anierirau and Atsiatic Cable Co., p. 232. r.Of; PRIVATE BILLS. when ihiit is agreed to, to move the second reading of the bill so that it may go on the orders. In the first men- tioned case, however, the motion for the second reading appears to have been made after the first reading and before the bill v^^as considered by the standing orders committee. But it seems hardly regular to order the second reading before the committee report whether or not the rule Avith respect to notice should be suspended and the bill proceeded with. The procedure in the Com- mons, under the same rule, is to move the second reading after the report, if favourable, of the standing orders (com- mittee.' And in all the other cases that occurred in the Senate in 1883, the same practice was followed. In the case of a bill in 1883 to authorize the G-rand Trunk Ilailway Company to extend its traffic arrange- ments with the North Shore Eailway Company, the com- mittee on standing orders reported adversely, without giving any reason except that no notice had been pub- lished in the " Grazette," or in any local newspaper. Thereupon, notice was given of a motion to suspend the rules (51, 50 and 5Y), so far as they related to the bill ; and this motion having been agreed to, the bill was placed on the orders for a second reading on a following day. This case shows that the motion for the second reading should properly follow the report of the committee.^ In the case of the " act to incorporate the board of man- agement of the church and manse building fund of the Presbyterian Church in Canada, for Manitoba and the Northwest," no petition was presented in 1883 in the 1 Ivfra, p. 667. It will also be seen that in the Senate in 1883, — but not in previous cases — a motion for the reference to the standing orders committee was made after the first reading. The rule seems to provide for a reference, as a matter of course, without a motion ; and it is under- stood as imptrative in the Commons. But it is immaterial evidently whether the motion is made or not. • Son. J. [1SS3] 208, 210, 221, etc. ; Min. of P., p. 359. Notice to suspend tlie rules in pursuance of rule IS ; mpm, p. 215. For ruie 51, see p. 627 • rule 56, p. 038 ; 57, p. 638. yOT BASED OX PETITION. 66T Senate, but no difficulty arose because the regular notices required by the rules had been given/ The committee's report to this effect was adopted, and the bill was ordered at once, by motion, for a second reading on a future day. As a rule, however, petitions for private bills are simul- taneously presented and reported upon in both houses ; and in this way the progress of a bill is facilitated. It is only in exceptional cases like those just mentioned, that a petition is presented in one house and not in the other. When any bill is brought down to the Commons from the Senate, the member interested will move, " That it be now read a first time," and this motion must be put with- out amendment or debate, as in the case of any XDublic bill.^ The bill must then be referred to the committee on standing orders, if that committee has not previously re- ported on a petition relative thereto, in accordance with rule 54, which is exactly the same as rule o^'j of the Senate, cited on a previous page. If the standing orders commit- tee report favourably, a motion will immediately be made for the second reading on a future day, as the rules of the Commons do not contain any provision for placing a bill on the orders after such report.-^ If the report is unfa- vourable the member may move (after notice) to suspend the standing orders relative thereto, and to have the bill read a second time ; but in the only case of the kind that has occurred since 1867, the house refused to interfere with the decision of the committee.' If there is a petition favourably reported on by the standing orders committee of the House of Commons, the bill can be immediately ordered for a second reading after the first reading.' Very few cases occur of bills being presented without petitions having been first reported upon. » Sen. J. [1883] 145. * Can. Com. J. [1883] 141. ^ Can. Com. J. [1878] 98, 109. For cases in legislative assembly, see Toronto Boys' Home, 1861 ; Huron College, 1863. * lb. [1877] 313, 335. ^ Ih. [1877] 54, 6l', 131-2 {Globe Printing Co.'s bill), etc. f5(]« I'RfVATE HILLS. III. Amendments made by either House —When a bill is re- turned from one house to the other with amendments, they are generally considered forthwith if they are merely verbal and not important.' The course with respect to amendments that are material is variable in the Senate ; bui ordinarily they are ordered to be taken into consider- ation on a future day; or immediately at the close of the session. Rule 68 of the Commons and rule tl of the Senate, however, provide a different course in the case of material amendments to a private bill : " When any private bill is returned from the Senate (or House of Con-inions) with amendments, the same not being merely verbal or unimportant, such amendments are, previous to then* second reading, referred to the standing committee to which such bill was orginally referred,- (or, by the Senate rule, to a committee of the whole.'') ' If the committee report favourably the amendments will be immediately read a second time and agreed to, and re- turned with the usual message. If the committee report that the amendments should be disagreed to for certain reasons, the house will consider the amendments forth- with, and having read them a second time will disagree to those on which the committee have reported unfavourably for the reasons set forth in their report.^ The house will then either " insist " or " not insist " on their amendments when the message is received that the other house disa- grees to them.' The proceedings in all such cases are fully explained in the chapter devoted to public bills. IV. Divorce Bills.-The British North America Act of 186t ^s. 91, sub. s. 26), places Marriage and Divorce within the » Sen. .T. [1877] 1.52. Com. J. [1878] 120. - Th. [1883] 308 (Wesleyan Missionarj' Society bill). ■ This rule is practically a dead letter as far as the Senate is concerned. ' London »& Ontario Investment Co. [1877], 246, 262 ; Wesleyan Mis- sionary Society [1883] 317, 326. * Can. Cora. .T. [1S77] 289, 298 ; Sen. J. 269, 282 (Union Life & Accident Assurance Co.] DIVORCE BILLS. 669 exclusive legislative jiirisdictiou of the Parliameut of Canada. In conformity with the practice of the legislature of Canada from 1840 to 1867, all such bills are initiated in the upper house of Parliament. The orders and practice of the Senate with respect to the prosecution of such bills will form the subject-matter of the rest of this chapter. Ptiblication of Notice. An applicant for a bill of divorce is required to give a certain notice of his prox)Osed aj^plication to Parliament in accordance with the following rule : 72. "Every applicant for a bill of divorce is required to give notice of his intended application and to specify from whom and for what cause, by advertisement during six months in the Canada Gazette, and in two newspapers published in the district, in Que- bec and Manitoba, or in the county or union of coimties in the other provinces, where such applicant usually resided at the time of separation, or if the requisite numbers of papers cannot be found therein, then in the adjoining district or county or union of counties. The notice for the provinces of Quebec and Manitoba ia to be published in the English and French languages." Presentation of Petition. The first proceeding in the Senate is the presentation of a petition from the x)erson seeking the bill of divorce.^ This petition must be in the form provided for all applications for personal and private bills, and subject to all the rules regulating such matters. Immediately after the presenta- tion of the petition, the certificate of the clerk that the fees have been paid, should be laid before the Senate in accord- ance with the following rule : 83. Every applicant for a bill of divorce, at the time of i)re- senting the petition, is to pay into the hands of the clerk of the Senate, a sum of $200, to cover the expenses which may be incurred by the Senate during the progress of the bill." ' Sen. J. [1877] 35, 37, 42; Ih. [1882] 38 ; 37 ; lb. [1883] 37. ^ lb. [1877] 36, 43 ; lb. [1883] 38. 1170 I' III V ATE BILLS. This certiricate, which .should be presented by the speaker like other returns, has sometimes been laid before the house after the reading of the order for reception of the petition ;' but the more regular and usual course is to pro- duce it on the day of the presentation of the petition. Service of Notice. \Yhen the petition has been before the house for two days, like all other petitions, it is brought up for reading and reception. The order having been called, the first proceeding will be to submit proof of the service of the notice of the application for the divorce. Eule 73 until the session of 1883 provided : 73. "A copy of the notice in writing is to be served, at the instance of the applicant, on the person from whom the divorce is sought, if the residence of such person can be ascertained ; and proof on oath of such service, or of the attempts made to effect it, to the satisfaction of the Senate, is to be adduced before the Senate, on the reading of the petition." The Senator in charge of the petition, must produce the notice and give proof of the service. The journals of the house show that this proof has been given sometimes on oath at the bar,- but generally by the production of an affidavit made before a justice of the peace,^ or a commis- sioner of one of the courts.^ The regularity of such alhda- vits was never questioned until the session of 1883, when, in accordance with the practice usual in such cases, there was laid before the house an aifidavit sworn before a " com- ' Sen. J. [1882] 50-51. - lb. [187(5] 33 ; lb. [1877] 46-47. •^ lb. [1876] 33 ; lb. [1878] 40. * lb. [1877] 47, 53 ; lb. [1878] 35, 74. In 1882, two affidavits ■svere pre- sented ; one to show that the notice had been served on the respondent a year before, on the occasion of the first proposed application to parha- inent, which was not proceeded with. Other attempts to serve the notice, prior to the second application in 1SS2, failed. These facts being set forth, the Senate agreed that all reasonable eftbrts had been made to ctfect the service. Jour., pp. 50-51 ; Hans. 30-31. DIVORCE BILLS. &J1 missioner for taking affidavits in the high court of justice in and for the county of Essex. "^ The objection was raised that an affidavit sworn before a commissioner of the hisrh court can only be evidence, and can only be read in a pro- ceeding before that court, and that therefore an oath under such circumstances was no oath at all since the said commissioner had no power to administer an oath to be used as evidence in the court of Parliament. It was pointed out that no person could be indicted for perjury for an oath so administered, and that consecjuentl}^ there was not the necessary security that the house should have for the truth of the evidence adduced at the most important stage of the inquiry in a judicial proceeding — the return of the service of the notice on the person whose rights are to be affected by the proposed legislation. The only oath that could be legally administered in connection with such a proceeding was at the bar by the clerk of the Senate, or by the chair- man, or any member of the committee on the bill, in accordance with the law governing such cases.- The minister of justice admitted that the affidavit in question was one upon which perjury could not be assigned.^ In order to meet the difficulty it was at last decided to alter the rule, cited above, so as to enable affidavits establishing the service of the notice, to be made before persons author- ized to take them. The rule was accordingly amended by striking out the word oath in the fourth line thereof, and substituting the words " declaration under the act passed in the thirty-seventh ^^ear of Her Majesty's reign, (chap. 37), intituled ' an act for the suppression of voluntary and extra-judicial oaths.' '" This act substitutes for "voluntary 1 Sen. J. [1883] 44. ■•^ Remarks of Senator Miller (subsequently speaker), Hans. [1883] 58-60. See supra, p. 460. ^ lb. 61. When the bill came up for second reading, it was also con- sidered expedient to give further evidence at the bar, under oath, of the service of the notice. Jour., pp. 78-80; Hans. 100-101. * Jour. 98 ; Hans. 66, 136. The act sets forth (sec. 1) : " And provided further that it shall be lawful for any judge, justice of the i->eace, public 072 PRIVATE HILLS. and oxlra-judicial oaths," tho right to make a " solemn declaration " under the legal penalties attaching to perjury. As the rule is now amended, evidence by such a declara- tion may be pronounced satisfactory to the Senate, without making it necessary to call to the bar the witness who served the notice/ Before leaving this question, it is necessary to mention that a section was also added to an act,^ passed this same session, amending the interpretation act as follows : " The word oath shall be construed as meaning a solemn affirm- ation .... and where, by an act of Parliament, or by a rule of the Senate or House of Commons, or by an order, regulation or commission, miide or issued by the governor in council, under any law authorizing him to require the taking of evidence under oath, an oath is authorized or directed to be made, taken or adminis- tered, such oath may be administered, and a certificate of its having been made, taken, or administered, may be given by any one nametl in such act, rule, order, regulation or commission, or by a judge of any court, a notary public, a justice of the peace, or a commissioner for taking affidavits, having jurisdiction or author- ity within the place where the oath is administered ; and the wilful making of an}^ false statement in any such oath or affirm- ation shall be wilful and corrupt perjury ; and the wilful making of any false statement in any declaration required, or authorized by an act of Parliament shall be a misdemeanour punishable as. wilful and corrupt perjury." When evidence, satisfactory to the Senate, of the service of the notice on the respondent has been formally adduced,, notary, or other functionary authorized by law to administer an oath, to receive the solemn declaration of any person, voluntarily making the same before him in the form of the schedule to this act annexed, in attestation of the execution of any written deed or instrument or allega- tions of fact or of any account rendered in writing ; and if any such declaration be false or untrue in any material particular, the person making such false declaration shall be deemed guilty of a misdemeanour." • Remarks of Sir A. Campbell, Minister of Justice, Hans. p. 136. See proceedings in the Graham Case, Jan. 28, 1884. ' 46 Vict., c. 1. DIVORCE BILLS. 673 it is necessary then to have the petition read and received in the usual way/ Exemjjlification of proceedings in Court. The rules of the Senate provide for the production of evidence at this stage, with respect to proceedings that have taken place in any court of law previous to the ap- plication to Parliament : 74. " AVhen proceedings in any courts of law have taken place prior to the jjetition, an exemplification of such proceedings to final judgment, duly certified, is to be presented to the Senate, on the reading of the petition. "- 75. " In cases where damages have been awarded to the appli- cant, r»roof on oath must be adduced, to the satisfaction of the Senate, that such damages have been levied and retained, or ex- planation given to the Senate for neglect or inability to levy the same, under a writ of execution, as they may deem a sufficient excuse for such omission." First Reading of Biil. These necessary forms having been taken with respect to the x^etition, it goes, as a matter of course, to the com- mittee on standing orders, who inquire whether the orders of the house with respect to such applications have been complied with. If the committee report favourably, the bill may be presented forthwith and read a first time.^ The motion for the second reading on a future day must be in accordance with the following order : 76. " The second reading of the bill is not to take place until fourteen days after the first reading, and notice of such second reading is to be affixed upon the doors of the Senate during that period, and a copy thereof and of the bill duly served upon the party from whom the divorce is sought, and proof on oath of 1 Sen. J. [1S77] 48, 53; Ih. [1882] ,51 ; Ih. [1883] 44 Ih. .Tan. 28, 1884. ^ Sen. J. (1873) 101 ; Ih. [1876] 63. [In these cases, no entry ajjpears in the proper place of the presentation of the papers] ; Ih. [1877] 48-9. ^ Ih. [1877] 54-5, 57 ; Ih. [1882] 60-1 ; Ih. [1883] 48, 49. 43 (374 PRIVATE BILLS. Buch service, {uldiieod at the bar of the Senate, before proceeding to the second reading, or sufficient proof adduced of the impossi- bility of complying with this regulation." Cost of Printing Bill. 82. Every bill of divorce is to be prepared in the English and French languages by the party applying for the same, and printed by the contractor for the sessional printing of the Senate, at the expense of the party ; and 600 copies thereof in English, and 200 copies in French, must be deposited in the office of the clerk of the Senate, and no such bill is to be read a third time until a cer- titicate from the queen's printer shall have been filed with the clerk, that the cost of printing 500 copies of the act in English, and 250 copies in French for the government has been paid to him." Second Reading. The order of the day for the second reading of the bill having been reached and read, it is then necessary to show that all the formalities, required by the foregoing rnle (76), have been duly complied with. The certificates of the clerk of the posting of the notice and other necessary pre- liminaries to the second reading, will be produced in due form. Evidence must next be given under oath at the bar with respect to the service of a copy of the bill and of the notice for the second reading, upon the respondent. The clerk administers the oath to the witness, whose answers to each question are duly recorded on the journals. "When the examination is closed, the witness is ordered to with- draw.^ The next proceeding is to make a formal motion to dis- pense with rule YY, requiring the " petitioner to appear 1 Sen. J. [1877] 90, 97, 99 ; lb. [1882] 131-2 ; lb. [1883] 79. In 1882 (Gardner's relief bill), on motion for second reading, only an affidavit of service was at first presented in accordance with the Peterson precedent of 1875 (Jour., p. 85) ; but it was pointed out that the rule requires proof under oath ut tho bar. The order was thereupon deferred until a later day, when the proi>er course was taken, Sen. Hans., pp. 102-4 ; 126-131. The last reference shows how the examination is conducted on such occasions. DWORCE BILLS. 676 T^elow tlie bar of the Senate at the second reading-, to be examined by the Senate, generally, or as to any collusion or connivance between the parties to obtain such sex^ara- tion." The motion dispensing with the rule, will add that " it be an instruction to any select committee to whom the bill on the subject maybe referred to make siich examina- tion."' This motion haying been agreed to, the bill must then be read a second time in due form, and referred to a select committee. Proceedings before the Committee on the Bill. 78. " After the second reading the bill is referred to a select committee of nine members ;- witnesses are heard on oath, the evidence is taken down in writing and reported to the Senate, with all vouchers adduced before the committee, the preliminary evidence being that of the due celebration of the marriage between the parties, by legitimate testimony, either by witnesses present at the marriage or by complete and satisfactory proof of the certificate of the officiating minister or authority." Both the petitioner and respondent are generally repre- sented by counsel before the committee. The 79th rule provides : 79. " The counsel for the applicant, as well as the party from whom the divorce is sought may be heard at the Bar of the 1 Sen. J. [1877] 91, 99 ; Ih. [1882] 132 ; lb. [1883] 81. In the last case (Nicholson relief bill) the respondent sent a telegram to the clerk that she wished proceedings stayed until she could be present to defend her- self. The clerk rejjlied that the order for the second reading had been deferred (the reason being the necessity of meeting the objection taken to the affidavit by Senator INliller). The telegrams were laid before the Senate after the second reading of the bill, and entered on the journals ; Hans. 10-4 (remarks of Sir A. Campbell). ■' Sen. J. [1877] 98, 100; Ih. [1882] 132; Ih. [18S3] 81. This committee was organized in 1883, with tlio assistance of J\Ir. Speaker, in accordance with a suggestion made in the house that it was desirable that a com- mittee invested with judicial powers, should be struck with judicial fairness. Hans., pp. 51, 104. (170 PRIVATE BILLS. .Sona(c), m well on the evidence adduced as on the provisions for tlio future .support of the wife, if deemed necessary." Counsel only appear, as a rule, before the select committee on the ])ill. Injudicial proceedings of this character, the Senate has, as far as possible, delegated its powers to the committee. "With respect to the attendance and expenses of witnesses it is provided : 80. " The witnesses are notified to attend by a summons, to issue under tlie hand and seal of the speaker, to the parties applying for the same, on application to the clerk of the Senate, and served at the expense of the said parties, by the usher of the black rod or his authorized deputy;^ and every witness is allowed his reason- able expenses,^ which, with those incurred by the usher of the black rod or his deputy, are to be taxed by the Senate or any officer thereof appointed for that purpose." 81. " Witnesses refusing to obey the summons are, by order of the Senate taken into the custody of the usher of the black rod, and not liberated therefrom, except by order of the Senate and after payment of the expenses incm^red."^ "Witnesses are examined under oath, and as far as possi- ble in accordance with the rules governing evidence in courts ;* and the questions and answers have generally of 1 Sen. J. [1873] 116. ^ Ih- [1883] 164. In this case one of the witnesses for the respondent was not paid his expenses under the order of the committee. ^ As the powers of both houses are similar to tliose of tlie English Commons with respect to the attendance of witnesses, it is always com- jietont for the Senate to compel them to obey the summons, and to punish them for contumacy. See supra, pp. 454-7. * But a ditliculty appears to exist sometimes in conducting the examin- ation as in a law court. On a recent occasion the chairman of a divorce committee (Mr. Macfarlane), whilst submitting a report, said: "Our experience in this, more definitely than in any other case, brought under our notice the fact that it would be much the wiser course if examin- ations of this character were held before some other tribunal. While the committee have full opportunity of examining each witness most minutely, still there is a difficulty in submitting witnesses who are either unwilling or prepared to perjure themselves in fact, to that rigid and close examin- ation which would be made in a court of justice. Sen. Hans. [1883] 288. DIVORCE BILLS. 677 late years been given in full in conformity with the rules of the select committees of the Lords.^ It is proper for the committee on a bill to obtain power from the house to employ a shorthand writer to take down evidence for the information of the committee and the house.^ In case of the poverty of the respondent, a petition may be presented to the house, praying that the applicant for the divorce may be ordered to sux)ply the respondent with means to maintain a just defence. This petition should be forthwith referred to the committee on the bill, and when they have made the proper inquiry into the subject, they will rei^ort to the house a recommendation, when necessary, that a certain sum be allowed to the party seeking assistance. In 1883, the committee on the Nichol- son divorce bill recommended — and the house agreed — that the husband, who was the petitioner, should allow his wife, on her petition, a certain sum as counsel's fee, and also pay so much for her daily expense of living at Ottawa." Report of Committee and Proceedings in the House. When all the necessary evidence has been taken before the committee, the latter will come to a conclusion thereon, as in the case of any opposed private bill. AVhen the evidence is sufficient to sustain the allegations set forth in the petition, they will report the bill. The report 1 Sen. J., 1876, app. No- 1. See supra, p. 457. Hans. [1883] 117 (Mr. Botsford). Previous to the regular employment of shorthand writers the evidence was generally given in condensed form ; Jour. [1873] 106. ^ Ih. [1883] 85. The same course is always followed by Commons com- mittees ; sujna, j). 441. « Sen. J. [1883] 95, Ui), 105 ; Hans. pp. 121-4. In 1882, the committee also ordered that the husband pay the counsel fees of respondent, on a petition having been presented and referred to them ; Sen. J., 96, 132, 150, 154. This is in accordance with the Lords' practice (Sen. Dickey, Hans., 1882, p. 200) in cases of the poverty of the parties. Fees have also been remitted in the Commons on account of the inability of the promoter of a divorce bill to pay them, 105 E. Com. J., 563. <;78 PRIVATE BILLS. and cvidonco arc printed and considered with the bill on a future day. When the report has been considered and adopted, ih(^ 1)111 may be read a third time in the usual way.' On the other hand, if the eAddencc is not satisfac- tory to the majority of the committee, the report will be that the preamble is not proven."^ In 1882, the petitioner abandoned the bill, when called upon to adduce further cyidcnce, and the committee so reported.'' When the re- port contains a recommendation it must be considered and adopted or neg-atiyed, as the house may consider right after full consideration of the evidence and facts.^ But the report is invariably final in all such cases. In case the committee report against the prosecution of the bill, it is usual to return all vouchers and exhibits to the respective parties in order that they may be, if neces- sary, used in evidence in the courts.^ When the bill has passed the Senate, a message is ordered to be sent to the Commons, to communicate to that house the evidence and the papers referring to the bill, including the exemplification, when any, of proceedings in a court of law.^ It was formerly the practice in the Senate to publish the evidence in full in an appendix to the journals of that house ; but the practice has been discontinued since 1877. The evidence, however, is kept among the records of the house, and is now printed for the information of mem- bers onl3^" In all unprovided cases, reference must be had to the ' Sen. J. [1877] 9G, 117 ; 105, 118 ; 115, 137. lb. [1878] 138. ^ lb. [1870] 137 ; lb. [1883] 164. ' lb. [18S2] 170. * lb. [1870] 160 ; lb. [1883] 173. In 1882, the report was not considered, as the ix^.titioner abandoned the bill, but a recommendation that the fee 136 refunded to him was proposed and agreed to ; Jour., p. 171. ' Sen. J. [1882] 170-1. ^Ib. [1877] 117,118. ' Sen. J. [1877] 64 ; Deb. [1878] 513, 503. See app. to journals for 18V8. DIVORCE BILLS. 6Y9 rules and decisions of the House of Lords/ Though there is now in England a court for the trial of matrimonial and divorce causes, the Lords have still jurisdiction over cases in India, Ireland, and other countries beyond the jurisdic- tion of the court.- Consequently both houses still continue their standing orders relative to divorce bills.'' V. Divorce Bills in the House of Commons.— The proceedings in the Commons relative to such bills may now be briefly explained. When a petition is read and received, it is referred, like all other applications for private legislation, to the committee on standing orders ;' but when no peti- tion has been presented and reported on by the committee on standing orders, the bill, when it comes up from the Senate, should be referred, in conformity with rule 54, to that committee.'' Divorce bills follow the practice usual in the case of all other private bills in the Commons. Up to 1867 divorce bills were referred after the second reading, in accordance with the general standing orders.*^ After 1867 divorce bills followed the practice which was adopted in that year of referring private bills to committees after the first reading." In 1873, it was ordered that all private bills should be referred after the second reading ; but it was not until 1875 that a divorce bill was brought up from the Senate, and it was then inadvertently referred after 1 R. 84. ^ May, 767. 3 Lords' S. O. 149, 175-8 ; Coin. S. 0. 189-92. In the Commons a select committee on divorce bills is nominated at the beginning of every session. In the Lords, divorce bills are committed like public bills to a committee of the whole house, and witnesses are examined at the bar. This was the practice of the Legislative Council of Canada. * Can. Com. J. [1875] 82, 83 ; lb. [1877] 62 ; lb. [1878] 27, 35. '" Supra, p. 667. This was not done in Martin's case in 1873. « Beresford, 1852-3 ; McLean, 1858 and 1859. ' J. R. Martin, 1873. This reference was made before the adoption of the rule referring private bills after the second reading. 080 PRIVATE BILLS. lirsi rcadini;-.' In the session of IStiT two divorce bills came up IVoin the; Seiiat*^, and the house followed the pre- cedent in the Peterson case. On a subsequent day the bills were reported from the committee, and then there arose a question as to the future procedure. Under rule 65, reported bills should be referred to a committee of the whole, but that could not be done (exce^^t by a special motion) since the bills had not been read a second time. The incorrectness of the procedure in the Peterson case became obvious, and the house agreed that divorce bills ought to follow the practice laid down for all private bills.^ Consequently all bills since then have been referred after second reading to a standing committee.^ Up to the session of 1877 it was the practice to refer these bills to a select committee in accordance with English practice ;^ but it is now usual to refer them to the standing committee on private bills. All the papers and evidence are referred with the bill to the committee.^ "When the bill comes back from committee, it is referred to the committee of the whole, and proceeded with like all other private bills. It was the practice until 1879 for the governor-general to reserve such bills for the signifi- cation of her Majesty's pleasure thereon, but this need not now be done since the change in the royal instructions with reference to bills." ' Can. Com. J. [1875] 215. -• Walter Scott and M. J. Bates relief bills, 1877 ; March 16, 19, 21 ; Can. Hansard; Com. Journals, pp. 148, 159, 771 ; 144, 153, 160, 172. In conse- quence of the mistake in the Peterson case, the journals of 1877 show very perplexing entries, l)ut the above remarks will suffice to explain the way these contradictory precedents occurred. ' Can. Com. J. [1877] 171, 179; Ih. [1878] 119, 120. * Supra, p. 679r?. '" Can. Com. J. [1878] 120. " Supra, pp. 569-73. CHAPTER XXII. RECENT PRIVY COUNCIL DECISIONS. I. Federal and Local Jurisdiction — Liquor License Act of 1S77 (Ontario) ; Delegation of Powers to License Commissionei's. — II. Lands in Canada escheated to the Crown for defect of heirs belong to the Provinces for the Purposes of Revenue and Government. — III. Concluding Remarks on Questions of Jurisdiction. I. Ontario Liquor License Act of 1877.— After the earlier por- tion of this work had been printed, the judicial committee of the privy council rendered a judgment which is too important to be passed over without notice, bearing, as it does, upon the questions discussed in the tenth and eleventh sections of the introductory chapter, and more €specially upon the case of Russell v. the Queen. By reference to the eleventh section of the first chapter it will be seen that a digest is there given of the judgment rendered by the privy council in favour of the constitution- ality of the Canada Temperance Act of 18Y8 — a judgment immediately followed by the passage of an act in the general legislature to provide for the sale of intoxicating liquors, and the issue of licenses therefor in the jirovinces of Canada. A later decision of the judicial committee of the privy council has undoubtedly an important bearing on the question of jurisdiction in the matter of the regulation of liquor traffic in a province. The fourth and fifth sec- tions of the Licjuor License Act^ of Ontario, which has come under the review of the privy council on the appeal » R. S. O., c. 181. 082 RECENT PRIVY COUNCIL DECISIONS. or Hodge V. the Queen from the court of appeal of the province, authorises the appointment of license commis- sioners to act in each municipality, and empowers them to pass resolutions for defining the conditions and quali- iications requisite to obtain tavern or shop licenses for sale by retail of spirituous liquors within the munici- pality ; for limiting the number of licenses; for declar- ing that a limited number of persons qualified to have tavern licenses may be exempted from having all the tavern accommodation required by law ; for regulating licensed taverns and shops ; for defining the duties and powers of license inspectors. These commissioners may also impose penalties for an infraction of their resolutions. The sale of intoxicating liquors is also prohibited in the act, under penalties, from Saturday evening, 7 o'clock, to Monday morning, 6 o'clock. By virtue of this act, the license commissioners of Toronto passed certain resolutions for the regulation of taverns and shops in that city. Subsequently, Mr. Hodge, a proprietor of an hotel, who was duly licensed to sell liquor, and to keep a billiard saloon, was convicted and fined before the police magistrate of Toronto, for unlaw- fully permitting a billiard table to be used, and a game to be played thereon, during the time prohibited by the act, and by the resolution of the commissioners ; that is, after 7 o'clock on Saturday night. This conviction was quashed by the court of queen's bench as illegal. Assuming the right of the legislature of Ontario to legislate on the sub- ject, the court held that it could not devolve or delegate its powers to the discretion of a local board of commis- sioners. The case was then taken to the court of appeal for Ontario, which reversed the decision of the queen's bench, and affirmed the conviction. The court decided substantially that the provincial legislature, and it alone, had the power to pass laws for the infliction of penalties or imprisonment for the enforcement of a law of a pro- vinee in relation to a matter coming within a class of ONTARIO LIQUOR LICENSE ACT. ' 683 subjects with which aloue the province had the right to deal ; * and that the legislature had power to delegate its authority as it had done in the matter in question. On the question at issue coming before the judicial committee of the privy council, their lordships were of opinion that the decision of the court of appeal of Ontario should be affirmed, and the appeal dismissed with costs. In their elaborate judgment, they state at the outset that they do not consider it necessary in the present case to lay down any general rule or rules for the construction of the British North America Act. They are impressed with the justice of an observation made by Chief Justice Hagarty in delivering the unanimous judgment of the court of queen's bench, "that in all these questions oi ultra vires, it is the wisest course not to widen the discussion by considerations not necessarily involved in the decision of the point in controversy." ^ They then proceed to notice the argument of the appellants that the legislature of Ontario had no power to pass any act to regulate the liquor traffic ; that the whole power to pass such an act was conferred on the dominion parliament, and con- sequently taken from the provincial legislature by section 91 of the British North America Act ; and that it did not come within any of the classes of subjects assigned exclusively to the provincial legislatures by section 92. The clause in section 91 which the Liquor License Act, 18*77, was said to infringe was No. 2, "the regulation of trade and commerce ;" and it was urged that the decision of their lordships in Russell v. the Queen was conclusive — " that the whole subject of the liquor traffic was given to the dominion parliament, and consequently taken away from the provincial legislatures." It appears, however, to their lordships that the decision mentioned " has not the ^ See sub. s. 15, s. 92; B. N. A. Act, 1867. ^ Their lordsliips also referred to what they had previously recom- mended in determining such cases ; sec mpra, ^. 100. 8 4 RECENT PRIVY CO UNCIL DECISIONS. i'lll'ci suppos(3d, and that, when properly considered, it should be taken rather as an authority in support of the judgment of the court of appeal." The sole question there Avas, " whether it was competent for the dominion Parlia- ment, under its general powers to make laws for the peace, order, and good gOA^ernment of the dominion, to pass the Canada Temperance Act, 18^8, which was intended to be applicable to the several provinces of the dominion, or to such parts of the j)rovinces as should locally adopt it." They then proceed to quote portions of the previous judgment in Russell and the Queen to show^ that the matter of the act in question does not properly belong to the class of subjects, " property and civil rights," within the meaning of sub-section 13, but is rather one of those matters relating to public order and safety, w^iich fall within the general authority of parliament to make laws for the order and good government of Canada.^ It, therefore, appears to their lordships that " Russell v. the Queen, when properly understood, is not an authority in support of the appellant's contention, and their lordships do not intend to vary or depart from the reasons expressed for their judgment in that case. The principle which that case and the case of the Citizens' Insurance Company illustrate is, that subjects which in one aspect and for one purpose fall within section 92, may in another aspect and for another purpose fall within section 91." - In considering the subject-matter and legislative char- acter of sections four and five of the license act of Ontario (as given in a previous page) their lordships point out that the act "is so far confined in its operations to muni- cipalities in the province of Ontario and is entirely local in its character and operation." The matters dealt with in the sections mentioned " seem to be of a purely local nature in the province, and to be similar to, though not identical in all respects with, the powers then belonging ' See supra, pp. 94-5, for the text of the decision on this point. - Supra, pp. 99-100, ONTARIO LIQUOR LICENSE ACT. 685 to municipal institutions under the previously existing laws passed by the local parliaments." Their lordships consequently decide: "The powers intended to be con- ferred by the act in question, when properly understood, are to make regulations in the nature of police or muni- cipal regulations of a merely local character for the good government of taverns, etc., licensed for the sale of liquors by retail, and such as are calculated to preserve, in the municipality, peace and public decency, and repress drunkenness and disorderly and riotous conduct.^ As such they cannot be said to interfere with the general regula- tion of trade and commerce which belongs to the domin- ion parliament, and do not conflict with the provisions of the Canada Temperance Act, which does not appear to have as yet been locally adopted. The subjects of legisla- tion in the Ontario Act of 1877, sections J: and 5, seem to come within the heads 8, 15, and 16^ of section 92 of the British North America Act, 1867. Their lordships are, therefore, of opinion that in relation to sections 4 and 5 of the act in question, the legislature of Ontario acted within the powers conferred ujDon it by the Imperial Act of 1867, and that in this respect there is no conflict with the powers of the dominion x^arliament." We have cited, in the foregoing paragraph, the most material part of the decision ; but their lordships went further and considered the objection raised by the appel- lant — that the Imperial Parliament had conferred no ^ In the case of the corporation of Three Rivers and Suite, the court of queen's bench of Quebec has given a decision, holding precisely in prin- ciple what the privy council has held in the Hodge case. See Mr. Justice Ramsay's judgment, 5 Legal News, 330. Also Poulin and the corporation of Quebec, 72 L.R., 387 ; 5 Legal News, 334 ; 6 Ih. 209, 214. The first mentioned case is now before tlie supreme court of Canada. 2 8. " Municipal institutions in the province." 15. " The imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section." 16. "Generally all mat- tors of a merely local or private nature in the province." f;86 RECExr rnivY council decisions. .luthorily on the local legislature to delegate its powers to the license comraissiouers or any other persons. In oilier words, that the power conferred by the Imperial rarliament on the local legislature should be exercised in lull by that body, and by it alone. This objection, in their opinion, is founded on an entire misconception of the true character and position of the provincial legisla- tures, " which are in no sense delegates of, or acting under any mandate from, the Imperial Parliament." Their lordships say emphatically that when the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the provinces and for provincial purposes in relation to the matters enumer- ated in section 92, " it conferred powers not in any sense to be exercised by delegation from, or as agents of the Imperial Parliament, but authority as j^deuary and as ample within the limits prescribed by section 92, as the Imperial Parliament, in the plenitude of its power, pos- sessed and could bestow." TTithiu these limits of subjects and area, " the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parlia- ment of Canada would have had under like circumstances to confide to a municipal institution or a body of its own creation, authority to make by-laws or resolutions as to subjects specified in the enactment, and with the view of carrying the enactment into operation and effect." In their opinion such an authority is ancillary to legislation, and without it an attempt to provide for varying details and machinery to carry them out might become oppres- sive, or absolutely fail. A legislature, in committing certain regulations to agents or delegates like license com- missioners, retains its powers intact, and can, whenever it pleases, destroy the agency it has created, and set up another, or take the matter directly into its own hands. ^ ' For text of judgment, see Legal News, January 19, 1SS4. ESCHEATS. 687 n. Escheats.— Among the matters that have recently come before the supreme court of Canada and the judicial com- mittee of the privy council is the question, whether the government of Canada or the government of a province is entitled to estates escheated to the Crow^n for want of heirs. The controversy on this question first arose in 18*74, when the legislature of Ontario passed an act^ to amend the law resjDecting escheats and forfeitures. This act was disallowed by the governor-general in council, on the report of the minister of justice (Mr. Fournier, now one of the judges of the sux)reme court) on the following grounds : 1. " That escheat is a matter of prerogative which is not by the British North America Act vested in a provincial government or legislature. 2. That it is not one of the subjects coming within the enum- eration of the subjects left exclusively to the provincial legisla- tures. 3. That a -provincial legislature, by its very statutable position, has no power to deal with prerogatives of the Crown. 4. That the lieutenant-governor has not under the statute, or by his commission, any power to deal with the prerogatives of the Crown ; and not being empowered to assent in the queen's name to any law of a provincial legislature, he cannot bind her 3Iajesty's prerogative rights." - Subsequently in 1876, by a decision of the court of queen's bench, of the province of Quebec, upon an appeal from a lower court, the right of the province to the con- trol of escheats and forfeitures, within the province, was affirmed. Whereupon it was agreed between the domin- ion and provincial governments that — until or unless there should be a judicial decision establishing a contrary principle — " lands and personal property in any province, escheated or forfeited by reason of intestacy, without law- ^27 Vict c. 8, Ont. Stat, of 1874. 2 Can. Sess. P., 1882, No. 141. 688 RECENT rniVY council decisions. Till heirs or next of kin, or other parties entitled to suc- ceed, are subjects appertaining to the province, and within its legishitive competency," while, on the other haud, " lands and personal property forfeited to the Crown for treason, felony, or the like, are subjects appertaining to the dominion, and within its legislative competence." ^ Accordingly the legislature of Ontario again passed an act," which enables the attorney-general to take possession of escheated lands or cause an action of ejectment to be brought for the recovery thereof without any inquisition being first necessary. The lieutenant-governor may make grants of escheated or forfeited lands, or may release for- feited property, or waive the forfeiture. He may also make an assignment of personality to which the Crown has become entitled. The question of the validity of this statute was brought before the courts in 1878, when the attorney-general of Ontario filed an information in the court of chancery for the purpose of obtaining possession of laud in the city of Toronto, which was the property of one Andrew Mercer, who had died intestate and without leaving any heirs or next of kin, on the ground that it had escheated to the Crown for the benefit of the province. Andrew Mercer, a natural son of the deceased, demurred to this informa- tion for want of ecjuity, and the court of chancery held that the Escheat Act of Ontario^ was not ultra vires, but that the escheated property accrued to the benefit of Ontario. On appeal to the court of appeal for Ontario, that court held that the provincial governments are entitled, under the B. N. A. Act, to recover and appropriate escheats, and affirmed the order over-ruling the said demurrer, and dismissed the appeal with costs. Against this judgment the defendant, Andrew Mercer, appealed ' Can. Sess. P., 1877, No. 89, pp. 88-105. * R. S. 0., c. 94 (40 Vict. c. 3.) The legislature of Xew Brunswick passed a law to the same eflect in 1877, c. 9. ^RS. O., c. 94. ESCHEATS. 689 to the supreme court, and the parties agreed that the appeal should be limited to the broad question whether the government of Canada or of a province is entitled to estates escheated to the Crown. The dominion govern- ment, concurring in the view of the appellant's counsel, that the hereditary revenues of the Crown belong to the dominion, intervened in order to have the question deter- mined. The supreme court held that the province of Ontario does not represent her Majesty in matters of escheat in that province, and therefore the attorney-general could not appropriate the property escheated to the Crown in this case for the purposes of the province, and that the Escheat Act of Ontario was ultra vires} That any revenue derived from escheats is by section 102 of the B. N. A. Act placed under the control of the Parliament of Canada as part of the consolidated revenue fund of Canada, and no other part of the act exempts it from that disposition.' The case was brought finally before the privy council,^ who came to the conclusion that the escheat in question belongs to the province of Ontario. Their lordships base their decision mainly on their interpretation of section 109, which is the only clause in the B. N. A. Act by which any sources of revenue appear to be distinctly reserved to the provinces, viz. : "All lands, mines, minerals, and royalties, belonging to the several provinces of Canada, Nova Scotia, and New Brunswick, at the union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the pro- vince in the same." ^ 5 Can. Sup. Court R. 538. The chief justice and another judge of the court dissented from the opinion of the majority. ■■^ Per Fournier, Tascheroau, and Gvvynne, J.J. ^ The attorney-general of Ontario v. Mercer ; July 18, 1883. 44 (390 RECENT PRIVY COUNCIL DECISIONS. The real question, in their lordships' opinion, is as to the eiiect of the words " lands, mines, minerals, and royalties" taken together. They see no reason why the word " royalties" in the context should not have its primary and appropriate sense as to all the subjects with which it is here associated, — lands, as well as mines and minerals. Even as to mines and minerals, it here necessarily signi- fies rights belonging to the crown, jura coronts. The general subject of the section is of a high political nature ; it is the attribution of royal territorial rights, for the purposes of revenue and government, to the provinces in which they are situate or arise. In its primary and natural sense, " royalties" is merely the English translation or equi- valent of regalilates, jura regalia, jura regia. It stands on the same footing as the right to escheats, to the land between high and low watermark, to treasure trove, and other analogous rights. Their lordships find nothing in the subject or the context, or in any other part of the Act, to justify a restriction of its sense to the exclusion of royalties, such as escheats, in respect of lands. The larger interpretation (which they regard as in itself the more proper and natural) also seems to be that most con- sistent with the nature and general objects of this par- ticular enactment, which certainly includes all other ordinary territorial revenues of the crown arising within the respective provinces.^ III. Conclusion.— In giving a digest of the most important judicial decisions on questions of legislative jurisdiction, the writer has not so far attempted any comment upon the many points that naturally suggest remarks, but has thought it the wisest course in a work of this character to allow the reader to study out each subject for himself, and form his own conclusions in matters of doubt. In review- ing these decisions, however, certain constitutional prin- ' See 6 Legal News, 234, 244. COXCLUSIOX. 691 oiples may be eyolved for the guidance of those engaged in the working out the federal system of the dominion, and to some of these the writer may not inappropriately refer. The dominion parliament and provincial legislatures are sovereign bodies within their respective constitutional limits. While the dominion parliament has entrusted to it a jurisdiction over matters of national import, and pos- sesses besides a general power to legislate on matters not specifically reserved to the local legislatures, the latter, nevertheless, have had conferred upon them powers as plenary and ample within the limits prescribed by the constitutional law, as are possessed by the general parlia- ment.^ In interpreting the constitution, prescribing the limits of the respective legislative authorities in the dominion, every care should be taken to consider each case as it arises, and to determine the true nature and character of the legislation in the particular instance under discus- sion in order to ascertain the class of subjects to which it really belongs.^ In all cases, each legislative body should act within the sphere of its clearly defined powers ; and the dominion parliament should no more extend the limits of its juris- diction by the generality of the application of its law, than a local legislature should extend its jurisdiction by localising the application of its own statute.'^ The parliament of Canada has a right to interfere with ^ Supra, p. 686. 2 IK, pp. 99-100. ^ Legal IS'ews on Hodge v the Queen, Jan. 26, 1884. " The federal parha- ment cannot extend its own jurisdiction by a territorial extension of its laws, and legislate on subjects constitutionally provincial, by enacting them for the whole dominion, as a provincial legislature cannot extend its jurisdiction over matters constitutionally federal, by a territorial limitation of its laws, and legislate on matters left to the federal power, by enacting them for the province only, as, for instance, incorporate a bank for the province," Tascheroau, J., Can. Sup. Court R., iv., 310. G92 RECENT PRIVY COUNCIL DECISIONS. matters of ]-)roporty, civil rights and procedure in a pro- vince, when it is necessary for the purpose of legislating* generally and effectually in relation to matters w^hich fall properly within the jurisdiction of the general legis- lature.' The federal parliament must have " a free and unfet- tered exercise of its powers " with respect to matters placed under 'its control, even though such exercise may interfere with some of the powers left under provincial control.^ The exercise of the powers of the local legisla- tures, in those cases, must necessarily be subject to such regulations as the dominion may lawfully prescribe.'' But it is reasonable to assume that the right of the federal parliament to legislate in this particular is limited to such legislation as is absolutely necessary to give full effect to its lawful powers. It cannot be argued from the most strained interpretation of the constitution that the federal legislature should, in the exercise, for instance, of its general power to regulate trade and commerce, or to provide for the peace, order, and good government of Canada, obliterate the jurisdiction of the local legislatures over matters of a purely provincial or municii3al character, or assume full control over civil rights and proi)erty.^ Parliament may, for instance, give powers to a railway company to expropriate and hold lands, as a necessary incident to its right to create such companies f but it cannot lawfully prescribe the terms and conditions on which the conveyance of real estate is to be made to a corporate body, but should leave all laws in each province to operate as to such conveyance.'' Nor does its authority to legislate for the regulation of trade and commerce com- ' Supra, pp. 86, 95, 97-98. - Can. Sup. Court R., iv., 308, Taschereau, J. •' lb. 248, Ritchie, C.J. * Can. Sup. Court, iv., 272, Fournier, J. •■' Can. Hans. [1882], 434 (Mr. Blake). " Stipra, p. 598. CONCLUSIOX. 693 prehend the power to regulate by legislation the contracts of a particular business or trade, as such contracts are matters of civil rights which fall within the jurisdiction of the provincial legislatures.' Parliament itself has, on more than one occasion, recog- nized the necessity of giving full scope to the powers of the provincial legislatures. For instance, it has refused to embody in an act such clauses as would practically nullify the provisions of a local statute, whollj'^ within the jurisdiction of the local sovereignty, which had, in the first instance, created the corporation.- On the other hand, the local legislatures, whose powers ^re limited compared with those of the general parlia- ment, must be careful to confine the exercise of them to the particular subjects expressly placed under their jurisdiction, and not to encroach upon subjects which, being of national importance, are, for that very reason, placed under the exclusive control of parliament.^ No conflict of jurisdiction need arise because subjects which, in one aspect and for one purpose, fall within the powers of the dominion legislature, may, in another aspect and for another purpose, fall within the powers of the local legislatures.^ The general authority, for instance, possessed by the dominion to make laws relating to public order and safety, or regulating trade and commerce, does not prevent the local legislatures from exercising its municipal powers with respect to the same subjects. Laws designed for the promotion of public order, safety, •or morals, belong to the subject of public wrongs rather than to that of civil rights. The primary matter dealt with by such legislation is the public order and safety — a matter clearly falling within the general authority of 1 Supra, pp. 88, 582. ^ Supra, p. 397. ^ Can. Sup. Court R., iv., 348, Gwynno, J. * Supi'a, p. 684. «;i>4 RECENT PRIVY COUNCIL DECISIONS. rarliamoiit to make laws for the order and good govern- nieut of Canada.' Consequently a uniform law passed by the general legislature to promote temperance in the dominion, does not conflict with the power possessed by a local legislature to pass an act authorizing the making ol" such police or municipal regulations of a merely local character as are necessary for the good government of taverns and other places licensed to sell liquor by retail."' Where a power is specially granted to one legislature, that power will not be nullified by the fact that, indirectly, it affects a special power granted to the other legislature. " This is incontestable," says a learned judge, " as to the power granted to parliament (section 91, last paragraph),"' and probably is equally so as to the power granted to the local legislature. In other words, it is only in the case of absolute incompatibility that the special power granted to the local legislature gives way." Such a principle seems absolutely necessary to the efficient operation of the federal constitution. In the inception of the confederation it was believed by its authors that the care taken to define the respective powers of the several legislative bodies in the dominion would prevent any troublesome or dangerous conflict of authority arising between the central and local govern- ments.^ The experience of the past sixteen years has proved that it is inevitable in the case of every written constitution, especially in the operation of a federal sys- tem — that there should arise, sooner or later, perplexing questions of doubt as to where power exists with respect ' Meredith, C.J.,in Blouinand the corporation of Quebec, 7 Q.L.R., 18 ; 5 Legal News, 333. - lb. pp. 95. ^ " And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this act assigned exclusively to the legislatures of the provinces." * See remarks of Sir John ^Macdonald in 1865, supra, p. 81 n. CONCLUSION. 695 to certain matters of legislation. It has been sometimes urged in Parliament^ that committees should be organised in both houses to lay down rules or principles for legis- lation, in order to prevent, as far as possible, any con- flict of jurisdiction. But it is questionable if political bodies can ever be the safest interpreters of constitutional law. It is in the courts that the solution must be sought for the difficulties that arise in the working of a federal constitution. As long as the courts of Canada continue to be respected as impartial, judicious interpreters of the law, and her statesmen are influenced by a desire to accord to each legislative authority in the dominion its legitimate share in legislation, dangerous complications can hardly arise to prevent the harmonious operation of a constitu- tional system, whose basis rests on the principle of giving due strength to the central government and at the same time every necessary freedom to the different provinces which compose the confederation. ' The Senate rules provide for the reference of bills on which the ques- tion of jurisdiction has been raised, to the committee of standing orders and private bills ; see supra, p. 607. APPENDIX. A. British Xorth America Act, 1867 699 B. An Act resj^ecting the estabhshment of Provinces in the Dominion of Canada (34-35 Vict., c. 28) 739 C. An Act to remove certain donbts witli respect to the powers of the ParHanient of Canada under section 18 of the B.N.A. Act, 1867 (38-39 Vict., c. 38) 740 T>. Governor-Generars Commission, Instructions, etc 742 E. Proclamation summoning Parliament for despatch of business . . . 749 F. Prayers in the Commons 750 G. Forms of Motions 751 H. Forms of Petitions 756 I. Forms of i-esignation of members; Speaker's warrants for new writs of election, etc 757 APPENDIX. A. THE BRITISH NORTH AMERICA ACT, 1867. ANNO TRICESIMO ET TRICESIMO-PRIMO VICTORIiE REGIX.^, CAP. III. An Act for the Union of Canada, Nova Scotia and New Brunswick, and the Government thereof, and for Purposes connected theremth. [29th March, 1867.] WHEREAS the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federallj^ united into One Dominion under the Crown of the United Kin^-doni of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom : And whereas such a Union would conduce to the Wel- fare of the Provinces and promote the Interests of the British Empire : And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Do- minion be provided for, but also that the Nature of the Executive Government therein be declared : And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British Noi-th America : Be it thei-efore enacted and declared by the (Queen's Most Excellent Majesty, by and with the Adviee and Consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and liy the Authority of the same, as follows : 700 APPENDIX. T. — PRELIMINARY. Short Titio. 1. This Act mtiy be cited as the British North America Act, 1867. AppHcii- 2. The Provisions of this Act referring to Her Majesty i'?ov?sions the Queen extend also to the Heirs and Successors of roforring jj^,,. Majesty, Kings and Queens of the United Kingdom Queen. of Great Britain and Ireland. II. — UNION. ['cclara- tion of Tnion. Construc- tion of subse- quent Pro- visions of Act. ?,. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Pj-ovinces of Canada, Nova Scotia and New Brunswick shall form and be One Domi- nion under the name of Canada ; and on and after that Day those Three Provinces shall form and be One Domi- nion under that Name accordingly. 4. The subsequent Provisions of this Act shall, unless it is otherwise expressed or implied, commence and have eifect on and after the Union, that is to say, on and after the Day appointed for the Union taking etlect in the Queen's Proclamation ; and in the same Provisions, un- less it is otherwise expressed or implied, the Name Can- ada shall be taken to mean Canada as constituted under this Act. Four Pro- vinces. 5. Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick. of Ontario ^- "^^^ ^slyU of the Province of Canada (as it exists at andQuebec. the passing of this Act) which formerly constituted re- spectively the Provinces of Upper Canada and Lower Canada, shall be deemed to be severed, and shall form Two Separate Provinces. The Part w^hich formerly con- stituted the Province of Upper Canada shall constitute the Province of Ontario ; and the Part which formerly constituted the Province of LoAver Canada shall consti- tute the Province of Quebec. ofNovr* 7. The Provinces of Nova Scotia and New Brunswick NewBru"nt ^^^^^ ^^"^^ ^^^° ^^^^^ Limits as at the passing of this Act. wick. Decennial 8. In the general Census of the Population of Canada Census. which is hereby required to be taken in the Year One thousand eight hundred and seventy-one, and in every BRITISH NORTH AMERICA ACT. *701 Tenth Year thereafter, the respective Populations of the Four Provinces shall be distinguished. Iir. EXECUTIVE POWER. 9. The Executive Government and Authority of and Deciara- over Canada is hereby declared to continue and be vested ExecuUve in the Queen. Power in ^ the Queen. 10. The Provisions of this Act referring to the Gover- Appiica- nor-General extend and apply to the Govei"nor-General Provisions for the Time being of Canada, or other the Chief Execu- [^^J'^in^ tive Officer or Administrator for the Time being carrying Governor on the Government of Canada on behalf and in the Name ^^"^'^^• of the Queen, by whatever title he is designated. 11. There shall be a Council to aid and advise in the Gov- Constitu- ernment of Canada, to be stj-led the Queen's Piiv^yCoun-Prhr cil for Canada ; and the Persons w^ho are to be Members Council for of that Council shall be from Time to Time chosen and summoned by the Governor-General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor-General. 12. All Powers, Authorities, and Functions which ^'je^/'Actl under any Act of the Parliament of Great Britain, or oftobeexer- the Parliament of the United Kingdom of Great Britain ^^3^^^ and Ireland, or of the Legislature of Upper Canada, ^^I^"^^}.- Lower Canada, Canada, Nova Scotia or New Brunswick, of Prfyy' are at the Union vested in or exercisable by the respective ^""V^"'' /-I -T • r^ r. 1 -Tk • o'^ alone. Governors or Lieutenant-Governors 01 those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of Members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same continue in exist- ence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exercisable by the Governor-General, with the Advice or with the Advice and Consent of or in conjunction with the Queen's Privy Council for Canada, or any Members thereof, or by the Governor-General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada. Applica- tion of 13. The Provisions of this Act, referring to the Gover- f/fSing' nor-General in Council shall be construed as referring toto^'ovemor '=' General in Council. 702 APPENDIX. Power to Ilor Miijosty to mithonzc (iovornor (Jciionil to ii)>)>oint J)eiiutics. tlio frovcrnor-Gcncnil acting by and witli the Advice of the Queen's Privy Council for Canada. U. It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor-General from Time to Time to appoint any Person or any Persons jointly oi- severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor-General such of the Powers, Authorities and Functions of the Governor-Gen- eral as the Governor-General deems it necessary or ex- pedient to assign to him or them, subject to any Limita- tions or Directions expressed or given by the Queen ; but the Appointment of such a Deputy or Deputies, shall not affect the Exercise by the Governor-General himself of any Power, Authority, or Function. Coiwuiand 15 The Coramand-in-Chief of the Land and Naval ForcoTto Militia, and of all Naval and Military Forces, of and in be°vcst"cd'iTi Canada, is hereby declared to continue and be vested in the Queen, the Qucen. Seat of Govern- ment of Canada. 16. Until the Queen otherwise directs, Govci'ument of Canada shall be Ottawa. the Seat of IV. — LEGISLATIVE POWER. Constitu- 1*7. There shall be One Parliament for Canada, consist- PariUimcnt i^^g of the Queen, an Upper House styled the Senate, and of Canada, the House of Commoiis. Privileges 18. The Pj"ivileges, Immunities, and Powers to be Houses. held, enjoj^ed and exercised by the Senate and by the House of Commons, and by the Members thereof respec- tively, shall be such as are from Time to Time defined by Act of the 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 Par- liament of the United Kingdom of Great Britain and Ireland, and by the Members thereof s'ion of the 1^- 'I'l^c Parliament of Canada shall be called together Parliament not later than Six Months after the Union. ol Canada. sionpftie" 20. There shall be a Session of the Parliament of P''r'iamont Canada once at least in every Year, so that Twelve Months shall not intervene between the last sitting of the Parliament in one Session and its first Sitting in the next Session. BRITISH NORTH AMERICA ACT. ^03 The Senate. 21. The Senate shall, subject to the Provisions of this Number of Act, consist of Seventy-two Members, who shall be styled ^®"''*°'""'" Senators. 22. In relation to the Constitution of the Senate, Can- Stfon'oT" ada shall be deemed to consist of Three Divisions — Provinces ^ „ , . in Senate. 1. Ontario; 2. Quebec : 3. The Maritime Provinces, Nova Scotia and New Brunswick ; which Three Divisions shall (subject to the Provisions of this Act) be equally j-epresented in the Senate as follows : Ontario by Twenty-four Senators ; Quebec by Twenty-four Senators; and the Maritime Pro- vinces by Twenty-four Senators, Twelve thereof repre- senting Nova Scotia, and Twelve thereof representing New Bi'unswick. In the case of Quebec each of the Twenty-four Sena- tors representing that Province shall be appointed for one of the Twenty-four Electoral Divisions of Lower Canada specified in Schedule A, to Chapter One of Con- solidated Statutes of Canada. 23. The Qualifications of a Senator shall be as follows : ?i"ns'5f ' (1.) He shall be of the full Age of Thirty years. Senator. (2.) He shall be either a Natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union or of the Parliament of Canada after the Union. (3.) He shall be legally or equitably seized as of Free- hold for his own Use and Benefit of Lands or Tenements held in free and Common Socage, or seized or possessed for his own use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is ap- pointed, of the value of Four Thousand Dollars, over and above all Eents, Dues, Debts, Charges, Mortgages and Incumbrances due or payable out of, or charged on or attecting the same ; (4.) His Eeal and Personal Property shall be together worth four Thousand Dollars over and above his Debts and Liabilities ; 704 APPENDIX. Summons of Senator. (5.) lie Hhall l)e rcaidcnt in the Province for which he is appointed ; (6.) In the Case of Quebec, he shall have his Real Property qualiticution in the Electoral Division for which he is appointed, or shall be resident in that Division. 24. The Governor-General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified persons to the Senate ; and, subject to the Pi-ovisions of this Act, every person so summoned shall become and be a Member of the Senate and a Senator. Summons 25. Such persons shall be first summoned to the Senate *i;ody1)f as the Queen by Warrant under Her Majesty's Royal Senator?. ^\g\\ Manual thinks fit to approve, and theii- Names shall be inserted in the Queen's Proclamation of Union. Addition of Senators in certain cases. 26. If at any Time, on the Recommendation of the Governor-General, the Queen thinks fit to direct that Three or Six Members be added to the Senate, the Gov- ernor-General may, b}^ Summons to Three or Six Quali- fied Pei'sons (as the case may be), representing equally the Three Divisions of Canada, add to the Senate accord- ingly. 27. In case of such Addition being at any Time made, the Governor-General shall not summon any Person to the Senate, except on a further like Direction by the Queen on the like Recommendation, until each of the Three Divisions of Canada is represented by Twenty-four Senators, and no more. 28. The Number of Senators shall not at an}^ time ex- ceed Seventy-Eight. 29. A Senator shall, subject to the Provisions of this Act, hold his place in the Senate for life. tionof*' ^^- ^ Senator may, by writing under his hand, place in addressed to the Governor-General, resign his place in the Senate, and thereupon the same shall be vacant. 31. The Place of a Senator shall become vacant in any of the following cases : — (1.) If for Two Consecutive Sessions of the Parliament he fails to give his Attendance in the Senate : (2.) If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience or Reduction of Senate to normal number. Maximum number of Senators- Tenure of place in Senate. Senate. Disqualifi- cation of Senators. BRITISH NORTH AMERICA ACT. 705 Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or enti- tled to the Eights or Privileges of a Subject or Citizen of a Foreign Power : (3.) If he is adjudged Bankrupt or Insolvent, or ap- plies for the benefit of any Law relating to Insol- vent debtors, or becomes a public defaulter : (4.) If he is attainted of Treason, or convicted of Fe- lony or of any infamous Ci'ime : (5.) If he ceases to be qualified in respect of Property or of Eesidence ; provided that a Senator shall not be deemed to have ceased to be qualified in respect of Eesidence by reason only of his residing at the Seat of Government of Canada while holding an Office under that Crovernment requiring his Pre- sence there, 32. When a Vacancy happens in the Senate, by Eesig- 0"^™°°^ nation, Death or otherwise, the Governor-General shall, in Senate. by Summons to a fit and qualified Person, fill the Va- cancy. 33. If any Question arises respecting the Qualification as"to*quaii- of a Senator oi" a Vacancy in the Senate, the same shall fications be heard and determined by the Senate. ciesln'^*'^ Senate. 34. The Governor-General may from Time to Time, Appoint- by Instrument under the Great Seal of Canada, appoint gjfe'aker of a Senator to be Speakei- of the Senate, and maj^ remove Senate. him and appoint another in his Stead. 35. Until the Parliament of Canada otherwise pro- Quorum of vides, the Presence of at least Fifteen Senators, including ''*^"'^*'^" the Speaker, shall be necessary to constitute a Meeting of the Senate for the exercise of its Powers. 36. Questions arising in the Senate shall be decided by Voting in a majority of Voices, and the Speaker shall in all Cases have a Vote, and when the voices are equal the Decision shall be deemed to be in the Negative. The House of Commons. 37. The House of Commons shall, subject to the Pro- f;^"®^^*"- visions of this Act, consist of One hundred and eighty- House of one Members, of whom Eighlj'-two shall be elected for •^"q™^'^^ Ontario, Sixty-five for Quebec, Nineteen for Nova Scotia, and Fifteen for New Brunswick. YOG APPENDIX. Summon- ^8. Tlic Govcrnor-Gencral shall from Time to Time, ',''«"''. in the Queen's Name, by Instrument under the Great CoinmoMs. Seal of Canada, summon and call togethei- the House of Commons. Senators _ 39. A Senator shall not be capable of being elected or I'lous" or '"of sitting or voting as a Member of the House of Com- (.'ommon.o. mons. Eiocturni 40. Until the Parliament of Canada otherwise provides, o('iho*'four Ontario, Quebec, Nova Scotia and New Brunswick shall, Provinces, for the Pui'poscs of the Election of Members to serve in the House of Commons, be divided into Electoral Dis- tricts as follows : — 1.— ONTAEIO. Ontario shall be divided into the Counties, Eidings of Counties, Cities, Parts of Cities, and Towns enumerated in the First Schedule to this Act, each whereof shall be an Electoral District, each such District as numbered in that Schedule being entitled to return One Member. 2.— QUEBEC. Quebec shall be divided into Sixty-five Electoral Dis- tricts, comj)osed of the Sixty-five Electoral Divisions into which Lower Canada is at the passing of this Act divided under Chapter Two of the Consolidated Statutes of Can- ada, Chapter Seventy-five of the Consolidated Statutes for Lower Canada, and the Act of the Province of Canada of the Twenty-third year of the Queen, Chapter One, or any other Act amending the same in force at the Union, so that each such Electoral Division shall be for the Purposes of this Act an Electoral District entitled to i-e- turn One Member. 3.._N0VA SCOTIA. Each of the Eighteen Counties of Nova Scotia shall be an Electoral District. The County of Halifax shall be entitled to return Two Members, and each of the other Counties One Member. 4.— NEW BEUNSWICK. Each of the Fourteen Counties into which New Bruns- wick is divided, including the City and County of St. John, shall be an Electoral District. The City of St. BRITISH NORTII AMERICA ACT. 707 John shall also be a separate Electoral District. Each of those Fifteen Electoral Districts shall be entitled to return One Member. 41. Until the Parliament of Canada otherwise provides, Continu- all Laws in force in the several Provinces at the Union exfsting relative to the following Matters or any of them, namely, LT«'*'"ti — the Qualifications and Disqualifications of Persons to be Parliament elected or to sit or vote as Members of the House of As- ^[i|^rwis!f sembly or Legislative Assembly in the several Provinces, provin.«. J As (n iiiiinK 45. In case of a Vacancy happening in the Office of ui') Viicancy Speaker, by Death, designation or otherwise, the House SpSiki-r."' of Commons shall, with all practicable Speed, proceed to elect another of its Members to be Speaker. Si.nikcr to 46. The Speaker shall preside at all Meetings of the prcsido. jjQ^g^ Qf Commons. Provision 4*7. Until the Parliament of Canada otherwise pro- abscnce^of vidcs, in case of the Absence, for any Eeason, of the Speaker. Speaker from the Chair of the House of Commons for a period of Forty-Eight Consecutive Hours, the House may elect another of its Members to act as S])eaker, and the Member so elected shall, during the Continuance of such Absence of the Speaker, have and execute all the Powers, Privileges and Duties of Speaker. Ouoriuu of 48, The Presence of at least Twenty Members of the Comimnis. House of Commons shall be necessary to constitute a Meeting of the House for the Exercise of its Powers ; and for that Purpose the Speaker shall be reckoned as a Member. Votiiifiin 49. Questions arising in the House of Commons shall Commons, be decided by a Majority of Voices other than that of the Speaker, and when the Voices are equal, but not other- wise, the Speaker shall have a Vote. Duration of 50. Every House of Commons shall continue for Five Commcms. 7®^^'^ ^^'^'^ ^^^ ^^^ of the Eeturn of the Writs for choos- ing the House (subject to be sooner dissolved by the Governor-General;, and no longer. iVionniai 51. On the completion of the Census in the Year one mento't'''" thousand eight hundi-ed and seventy-one, and of each Reprcscn- Subsequent decennial Census, the Eepresentation of the Four Provinces shall be readjusted b}' such Authority, in >such a manner, and from such time as the Parliament of Canada from Time to Time provides, subject and ac- cording to the following Eules : — (1.) Quebec shall have the fixed Number of Sixty-five Members : BRITISH NORTH AMERICA ACT. *709 (2.) There shall be assigned to each of the other Pro- vinces such a number of Members as will bear the same Proportion to the Number of its Population (ascertained at such Census) as the Number Sixty- five bears to the Number of the Pojiulation of Quebec, (so ascertained) : (3.) In the Computation of the Number of Members for a Province a fractional Part not exceeding One-half of the whole number requisite for entitl- ing the Province to a Member shall be disre- garded ; but a fractional Part exceeding One-half of that number shall be equivalent to the whole number : (4.) On any such Eeadjustment the Number of Mem- bers for a Province shall not be reduced unless the Proportion which the number of the Population of the Pj-ovince bore to the Number of the aggre- gate population of Canada at the then last preced- ing Eeadjustment of the Number of Members for the Province is ascertained at the then latest Census to be diminished by One-Twentieth Part or upwards : (5.) Such Eeadjustment shall not take effect until the Termination of the then existing Parliament. 52. The Number of Members of the House of Commons Increase of may be from Time to Time increased by the Parliament e^use^of* of Canada, provided the proportionate Eepresentation of'^o'^™^"^- the Province prescribed by this Act is not thereby dis- turbed. Money Votts ; Royal Assent. 53. Bills for appropriating any part of the Public Ee- Appropri- venue, or for imposing any Tax or Impost, shall origi- Tax°Bii\s. nate in the House of Commons. 54. It shall not be lawful for the House of Commons Rocom- to adopt or pass any Vote, Eesolution, Address, or Bill "nnoney" for the Appropriation of any Part of the Public Eevenue, ^ot^s- or of any Tax or Impost, to any Pui-]>ose, that has not been hi-st recommended to that House by Message of the Governor-General in the Session in which such Vote, Eesolution, Address, or Bill is proposed. Where a Bill passed by the Houses of the Parlia- Koyai is presented to the Governor-General for the Queen's BiTisTjkc. 55. ment Assent, he shall declare, according to his discretion, but subject to the Provisions of this Act and to Her Majesty's 110 APPENDIX. Disiillow- aiico by Order in Council of Act assent- ed to by (Sovcrnor (tencral. Significa- tion of Queen's plejuiure on Bill Tcscrvod. JiKsLriieHoiiH, ciilicr tluit he assents thereto in the Queen's- Namc, or that lie withholds the Queen's Assent, or that he resci'vcs the Bill for the Signihcation of the Queen's Pleasure. 5(). AVhcre the GrOvei-nor-Goneral assents to a Bill in the Queen's Name, he shall by the tirst convenient Op- portunity send an authentic Copy of the Act to One of Her Majesty's Piincipal Secretaries of State, and if the Queen in Council within Two Yeai-s after receipt thereof by the Secretary of State thinks fit to disallow the Act, such Disallowance (with a cei-tificate of the Secretary of State of Ihe Day on which the Act was received by him) being signitied by the Governor-General, by speech or Message to each of the Houses of the Parliament or by Proclamation, shall annul the Act from and after the Day of such Signification. 57. A Bill reserved for the Signification of the Queen's Pleasure shall not have any Force unless and until within Two Years from the day on which it was presented to the Governor-General for the Queen's Assent, the Gov- ernor-General signifies, by Speech or Message to each of the Houses of the Parliament or by Proclamation, that it has received the assent of the Queen in Council. An Entry of every such Speech, Message, or Proclama- tion shall be made in the Journal of each House, and a Duplicate thereof duly attested shall be delivered to the proper officer to be kept among the Records of Canada. V. — PROVINCIAL CONSTITUTIONS. Executive Power. Appoint- 58. For each Province there shall be an Officer, styled ment oi.it-., i r\ • i i ^ r\ Lieutenant the Liieutenant-Govcrnor, appointed by the Governor- of^Pro-'^'^ General in Council by Instrument under the Great Seal vinces. of Canada. Tenureof 59. A Lieutenant-Governor shall hold Office during Lieu'tenant ^^'^ Pleasure of the Governor-General ; but any Lieuten- Governor. ant-Governor appointed after the Commencement of the First Session of the Parliament of Canada shall not be removeable within Five Years from his Appointment, except for cause assigned, which shall be communicated to him in Writing within One Month after the Order for his Eemoval is made, and shall be communicated by Message to the Senate and to the House of Commons within One Week thereafter if the Parliament is then BRITISH NORTH AMERICA ACT. ^11 sitting, and if not then within One week after tlie Com- mencement of the next Session of the Parliament. 60. The Sahiries of the Lieutenant-CTOvernors shall be Salaries of fixed and provided by the Parliament of Canada. Governors^ Gl. Every Lieutenant-Governor shall, before assuming Oaths, &c., the Duties of his office, make and subscribe before the QQ^g^JJ*®"''^ Crovernor-General or some Person authorized by him, Oaths of Allegiance and Office similar to those taken by the Governor General. 62. The Provisions of this Act referring to the Lieu- Application tenant-Governor extend and apply to the Lieutenant- giQj^g^gfgy. Governor for the Time being of each Province or other ring to the Chief Executive Officer or Administrator for the Time GoTernT^ being carrying on the Government of the Province, by whatever Title he is designated. 63. The Executive Council of Ontario and Quebec shall Appoint- be composed of such Persons as the Lieutenant-Governor Eleciuive from Time to Time thinks tit, and in the first instance of Officers for the following Officers namely, the Attorney-General, theQuebec!^° Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, with in Quebec, the SjDeaker of the Legislative Council and the Solicitor General. 64. The Constitution of the Executive Authoritj' in Executive each of the Pi'ovinces of Nova Scotia and ISTew Bruns- ^ent'of wick shall, subject to the Provisions of this Act, continue Nova Scotia as it exists at the L^nion until altered under the Autho-BrunswTck. rity of this Act. 65. All Powers, Authorities, and Functions which Po^'^rs to under any Act of the Parliament of Great Britain, or ofcisedby the Parliament of the United Kingdom of Great Britain G^TerToT' and Ireland, or of the Legislature of Uj^per Canada, of Ontario Lower Canada, or Canada, were or are before or at the with advfce Union vested in or exerciseable by the respective Gov- o"" =i^'*^"'^- crnors or Lieutenant-Governors of those Provinces, with the Advice, or with the Advice and Consent, of the re- spective Executive Councils thereof, (u- in conjunction with those Councils or with any Number of .Members thereof, or by those Governors or Lieutenant-Governors individually shall, as far as the same are capable of being -exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and ^hall or may be exercised by the Lieutenant-Governor of 712 APPENDIX. Oiitaiio and Quebec respectively, with the Advice, or willi lh(^ Advice and Consent of, or in conjunction with liic r('S|)cctive Kxcciitivc Councils or any Members thercol' or by the Lieutenant-Govei-nor individually, as the Case i-equires, subject nevertheless, (except with re- spect to KTich as exist under Acts of the Parliament of Gj-eat B]-itain, or of the Parliament of the United King- dom of Great Biitain and Ireland), to be abolished or al- tered by the respective Legislatures of Ontario and Quebec. Mon of"' '•'•• 'J'lie Pj-ovisions of this Act referring to the Lieu- provisions tcnant-Govemor in Council shall be construed as refer- Liouu-'imiit' ring to the Lieutenant-Governor ()f the Province acting Omnci'r'"'''^' '"^'^ with the Advice of the Executive Council thereof. Adminis- (;7_ The Govei'nor-Gencral in Council may from Time trillion in ^ rr<- • . . , . . , "^ i ^ro absence, to lime appoint an Administrator to execute the Oince Lfeuteiiant ^^^^ Punctions of Licutenant-Governor during his Ab- Governor. scncc, Illness, or other Inability. B^'£i?/; I C8. Unless and until the Executive Government of any (Jovern- Proviucc Otherwise directs wuth respect to that Province, inents. ^j^g Scats of Government of the Provinces shall be as follows namely, — of Ontario, the City of Toronto; of Quebec, the City of Quebec •; of Nova Scotia, the City of Halifax; and of Xew Brunswick, the City of Preder- icton. Legislative Power. 1.— ONTAPJO. Jl'egislature G9. Tlierc shall be a Legislature for Ontai-io consisting n ano. ^f ^j^^ Lieutenant-Governor and of One House, styled the Legislative Assembly of Ontaiio. BistS **^^" "^'^^ Legislative Assembly of Ontario shall be com- posed of Eighty-two Members, to be elected to represent the Eightj^-two Electoral Districts set forth in the Pirst Schedule to this Act. 2.- QUEBEC. KSec*" '^^- "^^^^'"^ ""^^^^^ ^^ '^ Legislature for Quebec, consisting ■ of the Lieutenant-Governor and Two Houses, styled the Legislative Council of Quebec and the Legislative Assem- bly of Quebec. ConstUu- 72. The Legislative Council of Quebec shall be com- feSdi'^'*' P^^'^'-^ ^^' TAventy-four Members, to be appointed by the BRITISH NORTH AMERICA ACT. 713 Lieutenant-Governoi- in the Queen's jSTame by Instrnment under the Great Seal of Quebec, one being appointed to represent each of the Twenty-iour Electoral Divisions of Lower Canada in this Act j-eferred to, and each holding OflSce for the Term of his Life, unless the Legislature of Quebec otherwise provides nnder the Provisions of this Act. *73. The Qualitications of the Legislative Councillors ofQ'^'^iifiC''^- Quebec shall be the same as those of the Senators for Legislative Quebec. St[--, 74. The Place of a Legislative Councillor of (Quebec ij^esigna- shall become vacant in the Cases, mutatis mutandis, in quai'ifica- which the Place of Senator becomes vacant. tion,A-e. 75. When a vacancy happens in the Legislative Conn- ^ '^'^■^"'^'^^* cil of Quebec by Eesignation, Death, oi- otherwise, the Lieutenant-Governor, in the Queen's name, by Instru- ment under the Great Seal of Quebec, shall appoint a fit and qualified Person to fill the Vacancy. 76. If any (Question arises res])ecting the Qualification Qiiestions of a Legislative Councillor of Quebec, or a vacancy in des, etc' the Legislative Council of Quebec, the same shall be heard and determined by the Legislative Council. 77. The Lieutenant-Governor may, from Time to Time, Speaker of by Instrument under the Great Seal of Quebec, appoint Council. a Member of the Legislative Council of Queljec to be Speaker thereof, and may remove him and appoint another in his Stead. 78. Until the Legislature of Quebec otherwise WO-^^^m^HPJ^ vides, the Presence of at least Ten Members of the Council. Legislative Council, including the Speaker, shall be necessary to constitute a Meeting for the Exercise of its Powers. 79. Questions ai-ising in the Legislative Council ofiJ*gi"!at\"e Quebec shall be decided by a Majority of Voices, andCoimeii. the Speaker shall in all cases have a Vote, and when the Voices are equal the Decision shall be deemed to be in the negative. 80. The Legislative Assembly of Quebec shall be com- P*'"-'^'/"- 1 c ri- !■ A« 1 11 lion 01 posed 01 feixty-hve Members, to be elected to represent Legislative the Sixty-five Electoral Divisions or Districts of Lower (f/qu^bec. Canada in this Act referred to, subject to Alteration thereof by the Legislature of Quebec : Provided that it 114 APPENDIX. First Ses- sion of Legisla- tures. sliiill iiiil lie lawful to pi-csent to the Lieutenant-Governor of {^lu^hec i'oi- Assent any Bill for altering the Limits of any of the Llectoral Divisions or Districts mentioned in the Second Schedule to this Act, unless the Second and Third Ecadings of such Bill have been passed in the Legislative Assembly with the Concurrence of the Majority of the Members representing all those Elec- toral Divisions or Districts, and the Assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the Lieutenant-dovernor stating that it has been so passed. 3.— ONTAETO AND QUEBEC. 8L The Legislatures of Ontario and Quebec respec- tively shall be called together not later than Six Months alter the Union. Rummon- 82. The Lieutenant-Governor of Ontario and of Quebec Lcg?iiati.vc ^ii!»l') f'"<'""i ti"^e ^o time, in the Queen's jSTame, bj- Assemblies Instrument under the Great Seal of the Province, sum- mon and call together the Legislative Assembly of the Province, Restriction on election of holders of offices. Continu- ance of existing election laws. 83. Until the Legislature of Ontario or of Quebec otherwise provides, a Person accepting or holding in Ontario or in Quebec, any Office, Commission or Employ- ment, permanent or temporary, at the nomination of the Lieutenant-Governor, to which an annual Salary, or any Fce^ Allowance. Emolument or pro tit of any kind or Amount whatever from the Province is attached, shall not be eligible as a Member of the Legislative Assembly of the respective Province, nor shall he sit or vote as such ; but nothing in this Section shall make ineligible any Person being a Member of the Executive Council of the respective Province, or holding any of the following offices, that is to say, the offices of Attorney-General, Secretary and Eegisti-ar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and Com- missioner of Agriculture and Public Works, and in Quebec Solicitor-Genei-al, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while holding such office. 84. Until the Legislatures of Ontario and Quebec i-espectively otherwise provide, all Laws which at the Union are in force in those Provinces respectively, relative to the tollowing matters or an}' of them, namely, — the Qualifications and Disqualifications ot Persons to be elected to sit or vote as Members of the BRITISH NORTH AMERICA ACT. ^15 Assembly of Canada, the Qualifications or Disqualifica- tions of Voters, the Oaths to be taken by Voters, the Eeturning Officers, their Powers and Duties, the Proceed- ings at Elections, the Periods during which such Elections ma}' be continued, and the trial of Controverted Elections and the Proceedings incident thereto, the vacating of the Seats of Members, and the issuing and execution of new Writs in case of Seats vacated otherwise than by Dis- solution, shall respectively apply to Elections of Members to serve in the respective Legislative Assemblies of Ontario and Quebec. Provided that until the Legislature of Ontario other- J'''°7,'''° '^^ wise provides, at any Jiilection tor a Member oi the Legislative Assembly of Ontario foi- the District of Algoma, in addition to persons qualified by the Law of the Province of Canada to vote, every male British Subject aged Twenty-one Years or upwards, being a Householder, shall have a Vote. 85. Everv Legislative Assembly of Ontario and every P'^'l^Jio? of Legislative Asserabl}" of Quebec shall continue for Four Assemblies. Years from the Day ol the lieturn of the Writs for choosing the same (subject, nevertheless, to either the Legislative Assemblj' of Ontario or the Legislative Assembly of Quebec being sooner dissolved by the Lieutenant-Governor of the Pj'(jvince), and no longei*. SO. There shall be a Session of the Legislature of Yearly Ontaiio and of that of Quebec once at least in every Leg1s°-° Year, so that Twelve Months shall not intervene between ^^^"'^*^- the last Sitting of the Legislature in each Province in one Session and its first sitting in the next Session. 87. The following Pj-ovisions of this Act respecting Speaker, the House of Commons of Canada, shall extend and apply to the Legislative Assemblies of Ontario and Quebec, that is to sa}'. — the Provisions relating to the Election of a Speaker originally and on Vacancies, the Duties of the Speaker, the Absence of the Speaker, the Quorum, iiud to the Mode of Voting, as if those Provisions were here re-enacted and made applicable in terms to each hucli Legishitive Assembly. 4.— NOVA SCOTIA AND XKW BPtUXSWICK. 88. The Constitution of the Legislature of each of the 9°"^^'*"" Provmces ot JNova Scotia and Xew Brunswick shall, Legis- subject to the Provisions of this Act, continue as itNo"fi'sco[i.i exists at the Union until altered under the Authority of.uuixew •^ Brunswick. 716 APPENDIX. tills Acl ; and the House of Assembly of New Bnuiswick exist in;:; at the passing; of this Act shall, unless sooner dissolved, continue for the period for which it was elected. 5.— ONTARIO, QUEBEC AND XOVA SCOTIA. First 81). Each of the Lieutenant-dovei-nors of Ontario, elections. Q^^bec, and Nova Scotia, shall cause Writs to be issued for the first Election of 3Iembers of the Legislative As- sembly thereof in such Form and by such Person as he thinks fit, and at such Time and addressed to such Ee- turning Officer as the Governor-General directs, and so that the first Election of Member of Assembly for any Electoral District oi" any Subdivision thereof shall be held at the same Time and at the same Places as the Election for a Member to serve in the House of Commons of Can- ada for that Electoral District. G.— THE FOUPt PPtOVmCES. Appiica- 90, The following Provisions of this Act respecting the L^g]^. Parliament of Canada, namely", — the Provisions relating tures of to Appropriation and Tax Bills, the Eecommendation of respecUng Money Votes, the Assent to Bills, the Disallowance of money Acts and the Sii-iiification of Pleasure on Bills reserved, votes* Jtc. ^ — shall extend and apply to the Legislatures of the sev- eral Provinces as if those ProvibionsAvere here re-enacted and made applicable in Terms to the respective Pro- vinces and the Legislatures thereof, with the Substitu- tion of the Lieutenant-Governor of the Province for the Governoi'-General, of the Governor-General for the Queen, and for a Secretary of State, of One Year for Two Years, and of the Province for Canada. VI. — DISTRIBLTION OF LEGISLATIVE POWERS. Foicers of the Parliament. Legishiiive 9L It shall be lawful for the Queen, by and with the iff'parfia- Advice and Consent of the Senate and House of Com- Camid"/ ™ODS, to make Laws for the Peace, Order and Good Gov- ernment of Canada in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclu- sively to the Legislatures of the Provinces ; and for greater certainty, but not so as to restrict the Geneiality of the foregoing Terms of this Section, it is hereby de- clared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of BRITISH NORTH AMERICA ACT. *717 Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated, that is to say : 1. The Public Debt and Property. 2. The Eegulation of Ti-ade and Commerce. 3. The Eaising of Money by any Mode or System of Taxation. 4. The borrowing of Money on the Public Credit. 5. Postal Service. 6. The Census and Statistics. 7. Militia, Military and Naval Sei-vice and Defence. 8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada. 9. Beacons, Buoys, Lighthouses and Sable Island. 10. Navigation and Shipping. 11. Quarantine and the P^stablishment and Mainte- nance of Mai-ine Hospitals. 12. Sea Coast and Inland Fisheries. 13. Ferries between a Province and any British or Foreign Country, or between Two Provinces. 14. Currency and Coinage. 15. Banking, Incorporation of Banks and the Issue of Paper Money. 16. Savings Banks. 1*7. Weights and Measures. 18. Bills of Exchange and Promissory Notes. 19. Interest. 20. Legal Tender. 21. Bankruptcy and Insolvency. 22. Patents of Invention and Discovery. 23. Copyrights. 24. Indians and Lands reserved for the Indians. 25. Naturalization and Aliens. 26. Mari'iage and Divoj'ce. 27. The Criminal Law, except the Constitution of the Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. 28. The Establislimcnt, Maintenance and Management of Penitent iai-ies. 29. Such Classes of Subjects as ;ire expressly excepted in the Enumeration of the Classes of Subjects Iiy this Act assigned exclusively to the Legisla- tures of the Provinces. tl8 APPENDIX. And :uiy Mattel" comin.ii; Avitliin any of the Classes of Suhjeets cnumei-ated in tliis Section shall not be deemed to come within the Class ofMattci-s of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legisla- tures of the Provinces. Exclusive Powers of Provincial Legislatures. ^^]!u^lf 92.\ In each Province the Legislature may exclusively exclusive ' . . & .•^.,. ,•' Provincial make Laws m relation to 3iatters coming within the Legislation. Qij^gggg of Subjects next hereinafter enumerated ; that is to say : — 1. The Amendment from Time to Time, notwith- standing anything in this Act, of the Constitu- tion of the Pi-ovince, except as regards the Office of Lieutenant-Governor. 2. Direct Taxation within the Province in order to the raising of a Eevenue for Provincial Purposes. 3. The borrowing of Money on the sole Credit of the Province. 4. The Establishment and Tenure of Provincial Of- fices, and the Appointment and Payment of Provincial Officers. 5. The Management and Sale of the Public Lands belonging to the Province, and of the Timber and Wood thereon. 6. The Establishment, Maintenance, and Manage- ment of Public and Eeformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Manage- ment of Hospitals, As3-lums, Charities and Elee- mosynary Institutions in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, and Auctioneer, and other Licenses, in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. 10. Local Works and Undertakings, other than such as are of the following Classes, — a. Lines of Steam or other Ships. Eailways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with an}' other or others of the Provinces, or extending beyond the Limits of the Province : h. Lines of Steam Ships between the Province and any British or Foreign Country : BRITISH NORTH AMERICA ACT. 719 €. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. 11. The Incorjioralion of Companies with Provincial Objects. 12. Solemnization of Marriage in the Pi-ovince. 13. Property and Civil Rights in the Province. 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Ci'iminal .Jurisdiction, and including Pro- cedui'e in Civil Matters in those Courts. 15. The Imjiosition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of subjects enumerated in this Section. 16. Generally all matters of a merely local or private nature in the Province. Education. 93. In and for each Province the Legislature may ex- Legislation clusively make Laws in relation to Education, subject educaaon! and according to the following Provisions : — (L) Nothing in any such Law shall prejudicially aftect any Eight or Privilege Avith respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union ; (2.) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Eoman Catholic Sub- jects, shall be and the same are hereb}' extended to the Dissentient Schools of the Queen's Prot- estant and Roman Catholic Subjects in Quebec ; (3.) \Yhere in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Gov- ernor-General in Council fi-om any Act or Deci- sion of any Pi-ovincial Authority aftccting any Right or Privilege of the Protestant or Roman Catholic Minority of the (Queen's Subjects in re- lation to Education ; ♦720 APPENDIX. {■[.) In case any 8ucli Provincial Law as from Time to Time Kcems to the (Tovei'iioi'-General in Coun- cil re(|uisitc for the due Execution of the Provi- sion.s of this Section is not made, or in case any Decision of the Governoi--General in Council on any Appeal under this Section is not duly ex- ecuted by the proper Provincial Authority in that- behalf, then and in every such case, and as fill- only as the circumstances of each case re- quire, the Parliament of Canada maj^ make re- medial Laws for the due Execution of the Pro- visions of this Section, and of any Decision of the CxOvernor-rJeneral in Council under this Section. Uniformity of Laws in Ontario, Nova Scotia and New Brunswick. Legislation 94_ Notwithstanding anything in this Act, the Parlia- formity of ment of Canada may make Provision for the Uniformity t'hm;'" o^ ^^^ ^^' ^".y ^^ ^^® Laws relative to Property and Civil rrovinccs. Eights in Ontario, Nova Scotia and New Brunswick, and of the Pj-ocedure of all or any of the Courts in those Three Pj-ovinces, and from and after the passing of any Act in that behalf, the Power of the Parliament of Can- ada to make Laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted ; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have eftect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof Agriculture and Immigration. Coiiciinent 95 jj-^ each Province the Legislature may make Laws powers ot . ,. A-1 •i-n- 1 T icKisiation m relation to Agriculture in the Province, and to Immi- a^ncuituro, gi"fition into the Province ; and it is hereby declared that Ac. the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Pro- vinces, and to Immigration into all or any of the Pro- vinces ; and any Law of the Legislature of a Province, relative to Agriculture or to Immigration, shall have ef- fect in and for the Province, as long and as far only as it is not repugnant to any Act of the Parliament of Canada. VII. — JUDICATURE. mcntof ^^- ^^^ Governor-General shall appoint the Judges of Judges. the Superior, District and County Courts in each Pro- BRITISH NORTH AMERICA ACT. Y21 vince, except those of the Courts of Probate in ^ova Scotia and New Brunswick. 97. Until the Laws rehitive to Property and Civil Selection of Rights in Ontario, Nova Scotia and New Brunswick, and Ontfrfollc. the Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Pj"ovinces appointed by the Governor-General shall be selected from the respective Bars of those Provinces. 98. The Judges of the Courts of Quebec, shall be se- '^election of lected from the Bar of that Province. Quebec 09. The Judges of the Superior Courts shall hold office Tenure of during good behaviour, but shall be removable by the judges of •Governor-Genei-al on Address of the Senate and House Superior oourts. of Commons. 100. The Salaries, Allowances and Pensions of the|aianes, Judges of the Superior, District and County Courts (ex- judges, cept the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in cases where the Judges thereof are for the time being paid by Salary, shall be fixed and provided by the Parliament of Canada. 101. The Parliament of Canada may, notwithstanding [general anything in this Act, from Time to Time, provide for the Appeal, ' Oilier in Council in Ihat Bchall' shall have effect as if they had been cnacled by tlic Parliament of the I'nilcd Kingdom ol'(Ji'cat Britain and Ireland, Kcirc- ^^^* '" <^"i'^t; of the Admission of Newfoundland and .soiitatidii Prince I']d\vai'd island oi- eitlier of Ihem, eacii shall be nani'iibiiii entitled to a Eepi-esentalion, in the Senate of Canada, of .■in.i I'liiicc Poiix- ]\[embers, and (notwitlistanding anything in this isiuiiliiii Act) in case of tJic Admission of Newfoundland, the Nor- mal number of Senators shall be Seventy-six and their maximum Number shall be Eighty-two; but Pj-ince Ed- Avard Island, when admitted, shall be deemed to be com- pj'ised in the third of the Three Divisions into which Canada is, in relation to the Constitution of the Senate, divided by this Act, and accordingly, after the Admission of Prince Edward Island, whether Newfoundland is ad- mitted oi' not, the Eepi'csentation of Nova Scotia and NeAV Brunswick in the Senate shall, as Vacancies occur, lie reduced from Twelve to Ten Members i-espectively, and the Pepresentation of each of those Provinces shall not be increased at an}' Time beyond Ten, except iindei- the Provisions of this Act, for the Appointment of Three or Six additional Senators under the Direction of the Queen. SCHEDULES. THE FIRST SCHEDULE. Electoral Districts of Ontario. A. EXISTIKG ELECTOEAL DIYISIONS. COUNTIES. 1. Prescott. 2. Glengarry, o. Storraont. -i. Dundas. 5. Russell. 6. Carleton. 7. Prince Edward. 8. Halton. 9. Essex. RIDINGS OF COUNTIES. 10. North Eiding of Lanark, n. South Eidino- of Lanark. BRITISH NORTH AMERICA ACT. *731 12. North Iiidini^' of Leeds and North Riding of Gren- vjlle. 13. South Eidiiig of Leeds. 14. South liiding of G-ronville. 15. East Eiding of Northumberland. 16. West Eiding of Northumborhmd (excepting there- fi'Oni the Township of South Monaghan.) 1*7. East Eiding of Durham. 18. West Eiding of Durham. 19. Nortli Eiding of Ontario. 20. South Eiding of Ontario. 21. East Eiding of York. 22. West Eiding of Yoi-k. 23. North Eiding of Yorlc. 24. Noi-th Eiding of Wentworth. 25. South Eiding of Wentworth. 26. East Eidino- of Elgin. 27. West Eidin^g of Elgin. 28. ISorth Eiding of Waterloo. 29. South Elding of Waterloo. 30. North Eiding of Brant. 31. South Eiding of Brant 32. North Eiding of Oxford. 33. South Eiding of Oxford. 34 East Eidiii"- of Middlesex. CITIES, PARTS OF CITIES AND TOWNS. 35. West Toronto. 36. East Toronto. 37. Hamilton. 38. Ottawa. 39. Kingston. 40. London. 41. Town of Brockville, with the Township of Eli/,a- bethtown thereto attached. 42. Town of Niagara, with the Township of Niagara thereto attached. 43. Town of Cornwall, with the Township of Cornwall thereto attached. B. NEW ELECTORAL DIVISIONS. 44. The Provisional Judicial District of Algoma. 732 APPENDIX. 'Uw Couiily of Bruce, divided into two Ridings, to be called j-cspcctively the Xorth and South Eidings : — 45. The North Hiding of Bruce to consist of the Town- ships of Bury, Lindsay, Eastnor, Albemarle, Ama- bel, Arran, Bruce, Elderslie, and Saugeen, and the Village of Southampton. •lU. The South Eiding of Bruce to consist of the Town- ships of Kincardine (including the Village of Kin- cardine), Greenock, Brant, Huron, Kinloss, Cul- ross, and Carrick. The County of Huron, divided into Two Eidings, to be called respectively the North and South Eidings : — 47. The North Eiding to consist of the Townships of Ashtield, Wawanosh, Turnberry, Howick, Mori'is, Grey, Colborne, Hullett (including the Village of Clinton), and McKillop. 48. The South Eiding to consist of the Town of Gode- rich, and the Townships of Goderich, Tuckersmith, Stanley, Ha}*, Usborne, and Stephen. The County of jMiddlesex, divided into Three Eidings, to be called respectively the North, West, and East Eidings : — 49. The North Eiding to consist of the Townships of XcGillivray and Biddulph (taken from the County of Huron), and Williams East, Williams West, Adelaide and Lobo. 50. The West Eiding to consist of the Townships of Dela-\vare, Caradoc, Metcalfe, Mosa and Ekfrid, and the Village of Strathroy. [The East Eiding to consist of the Townships now em- braced therein, and be bounded as it is at pre- sent.] 51. The County of Lambton to consist of the Town- ships of Bosanquet, Warwick, Plympton, Sarnia, Moore, Enniskillen and Brooke, and the Town of Sarnia, 52. The Count}- of Kent to consist of the Townships of Chatham, Dover, East Tilbury, Eomney, Ea- leigh and Harwich, and the Town of Chaltham. BRITISH NORTH AMERICA ACT. Y33 53. The County of Botiiwell, to consist of the Town- ships of Sombra, Dawn and Euphemia (taken from the County of Lambton), and the Town- ships of Zone, Camden with the Gore thereof, Orford and Ilowai-d (taken from tlie County of Kent). The Count}^ of Grey, divided into Two Eidings, to be (•ailed respectively the >Soulh and North Eidings: 54. The South Eiding to consist of the Townships of Bentinck, Glenelg, Ai-temesia, Osprey, Nor- manby, Egremont, Proton and Melancthon. 55. The North Eiding to consist of the Townships of Collingwood, Euphrasia, Holland, St. Vincent, Sydenham, Sullivan, Derby and Keppel, Sara- wak anil Brooke, and the Town of Owen Sound, The County of Perth, divided into Two Eidings, to be called respectively the South and North Eidings : — 5t). The North Eiding to consist of the Townships of AVallace, Elma, Logan, Ellice, Mornington and North Easthope, and the Town of Stratford. 51. The South Eiding to consist of the Townships of Blanchartl, Downie, South Easthope, Eullarton, Hibbei-t, and the Tillages of Mitchell and Ste. Maiys. The County of Wellington, divided into Three Eid- ings, to be called respectively North, South and Centre Eidings : — 58. The North Eiding to consist of the Townships of Amaranth, Arthur, Luther, Minto, 3Iaj-ybo- rough. Peel, and the Village of ]\[ount Forest. 59. The Centre Eiding to consist of the Townships of Garafi-axa, Erin, Eramosa, Nichol and Pilking- ton, and the Villages of Fergus and Flora. (JO. The South Riding to consist of the Town ofGuelph and tlie Townships of Guelph and Puslinch. The County of Norfolk, divided into Two Eidings, to be called reepcctivoly the South and North Eidings : — 734 APPENDIX. III. Tlic Soiitli Riding to consist of the TownshipB of (;iiiirl(»ttcvillc, Hono;ii((jn, Walsiiigham and Woodliouse, and witli tin; (jrorc thereof. (i2. The Nortii Jtiding to consist of the Townships of Afiddleton, To\vnscnd aixl eighty-three, and in the Forty-seventh year of Our iicign. By Command, EICHAED POPE, Clerk of the Crown in Chancery, Canada. F. PEAYEES OF THE HOUSE OF COMMONS. " Lord our Heavenly Father, high and mighty. King of kings, Lord of lords, the only Euler of Princes, who dost from thy throne behold all the dwellers upon earth ; Most heartily we beseech thee with thy fjivour to behold our most gracious Sovereign Lady Queen Victoria, and so replenish her with the grace of thy Holy Spirit that she may alway incline to thy will, and walk in thy way: Endue her plcnteously with Heavenly gifts ; grant her in health and wealth long to live ; strengthen her that she may vanquish and overcome all her enemies ; and finally, after this life, she may attain everlasting joy and felicity, through Jesus Christ Our Lord. — Ame7i." " Almighty Cod, the Fountain of all Goodness, we humbly be- seech Thee to bless Albert Edward, Prince of Wales, the Princess of Wales, and all the Eoyal Family : Endue them with Thy Holy Spirit : Enrich them with Thj' Ileavcnly Grace ; prosper them with all happiness: and bring them to Thine everlasting King- dom, through Jesus Christ Our Lord. — Amen." " Most Gracious God, we humbly beseech Thee, as for the United Kingdom of Great Britain and Ireland, and Her Majesty's other Dominions in general, so especially for this Dominion, and herein more particularly for the Governor-General, the Senate and the House of Commons, in their legislative capacity at this time assembled, that Thou wouldst be pleased to direct and pros- per all their consultations, to the advancement of Thy glory, the safety, honour and welfare of our Sovereign and Her Dominions, that all things may be so ordered and settled by their endeavours upon the best and surest foundations, that peace and happiness, truth and justice, religion and piety, may be established among us for all generations. These, and all other necessaries for them, and for us, we humbh' beg in the name, and through the media- tion of Jesus Christ our most blessed Lord and Saviour. — Amen." " Our Father which art in Heaven, Hallowed be thy Name. Thy Kingdom come. Thy will be done in Earth as it is in Hea- FORMS OF MOTIONS. 751 ven. Give us this day our daily bread. And forgive us our tres- passes as we forgive them who trespass against us. And lead us not into temptation ; but deliver us from evil. — J.??ien." G. MODE OF PROPOSING MOTIONS AND AMENDMENTS. ]\Ii'. Blake moves, seconded by ]\Ir. Mills, " That a humble address be jiresented to Her INIost Gracious Majest}% praying that she will be pleased to cause a measure to be submitted to the Imperial Parliament providins; that the Parliament of Canada shall not have power to disturb the Financial relations, established by the British North America Act (1867) between Canada and the several Pro- vinces, as altered by the Act res^^ecting Nova Scotia." Ml'. Archibald moves in amendment, seconded by Mr. Mac- donald (Middlesex), That all the words after "That" to the end of the question be left out, and the following words inserted instead thereof: — " This House adheres to the decision of the Parliament of Canada at its last session, as embodied in the Act intituled : — ' An Act respecting Nova Scotia.' " Sir John Macdonald moves in amendment to the amendment, seconded by Sir George E. Cartier, That all the words after " thereof" in the said amendment be left out, and the following words inserted instead thereof : — " It is the undoubted privilege of Parliament to fix and determine the amount of all expenditure chargeable on the public funds of the Dom- inion." And the question having been put on the amendment to the said proposed amendment, it was resolved in the affirmative. And the question on the amendment to the original question, so amended, being again proposed, Mr. Oliver moves, in amendment thereto, seconded by ^Iv. Magill : — That the following words be added at the end thereof: " But this House is of opinion that no further grant or provision, beyond those made by the Union Act and the, Act respecting Nova Scotia, should in future be made out of the Kevonues of Canada, for the support of the Government or Legislature of any of the Provinces." ^752 APPENDIX. Ami \\\v. (iiiestion l.ciii<^ put, that those words be there added, the House divided, and it was s(; resolved in the affirmative. And tlic question on tlic amendment to the original question, so amended, being again proposed; Mr. AVood moved in amendment thereto, seconded by Islx. Magi 11 : Tliat the following words be added at the end thereof: " And that such steps should be taken, as to render impossible any such grant or provisions." And the question being put that those words be there added, it ])asscd in the negative. And the question being put on the amendment to the original question, as amended, it was resolved in the affirmative. Then the main question, as amended, being jjut : " That it is the undoubted privilege of Parliament to fix and determine the amount of ail expenditure chargeable on the public funds of the Dominion ; but this House is of opinion that no further grant or provi- sion beyond those made by the Union Act and the Act respecting Nova Scotia, should in the future be made out of the revenues of Canada, for the support of the Government or Legislature of any of the Provinces." The house divided ; and it was resolved in the affirmative. {See Journals of the House of Commojis, ^\st March, 1870.) AMENDMENTS TO SUPPLY AND WAYS AND MEANS. The order of the day being read for the House again in the Committee of Supply, And the question being proposed, That Mr. Speaker do now leave the chair, Mr. Laurier moves, in amendment, seconded by ^Ii-. Blake : " That all the words after ' That ' to the end of the question be left out, and the following words added instead thereof: 'In the opinion of this House, the public interests would be promoted by the repeal of the duties imposed on coal, coke and breadstufls.free under the former tariftV etc." On Second Reading. Certain resolutions having been reported from Committee of Supply, And a motion being made, and the question being proposed, That the said resolutions be now read a second time, FORMS OF MOTIONS. Y53 'Mr. moves, in amendment, seconded by 3Ir. : " That all the words after ' That' to the end of the question, be left out in order to add the fallowing words instead thereof, etc." On Concurrence. A resolution having been read a second time, and the question being proposed, That the House do concur with the Committee in the said resolution • i\Ir. moves in amendment, seconded by Mr. B , " That all the words after ' That ' to the end of the question be left out, «tc." MOTIONS RESPECTING PUBLIC BILLS. On Introduction. ]\Ir. Eichey moves, seconded by Mr. Daly, for leave to bring in a bill to amend the Acts respecting Cruelty to Animals. At Other Stages. Mr. Eichey moves, seconded by Mr. Daly, that the bill to amend the Acts respecting cruelty to animals, be now read a second time (or committed to a committee of the whole), or read a third time. On Reference to a Select Committee. Ml-. Weldon moves, seconded by Mr. McCarthy : " That tlie bill to amend the Act passed in the forty-fifth year of the reign of Her present INIajesty intituled : An Act to repeal the duty on promissory notes and bills of exchange, &c., be referred to a select com- mittee composed of Messrs. "Weldon, McCarthy, Girouard (.Jacques Car- tier), Jamieson and Wells." Jn^struction . The order of the day being read, for the Committee on the County Courts (Ireland) Bill ; Mr. moves, seconded by Mr. , " That it bo an instruction to the Committee, that they have power to make provision for the extension of the Equity jurisdiction of the Courts." (137 E. Com. J. 202.) On Second Reading. The order of the day being read for the second i-eading of the Thames Eiver bill ; iO~ APPENDIX. And :i inoiioi) I)ein;^- made, and tlic question beini^ proposed, TliaL the Mil 1"! now read a second time : ■},ly jV moves, in amendment, seconded by ]VIr. B- "Tliat all 11 10 words after ' That' to the end of the question bo left out, and that the r<)llo\viui,' words bo added instead thereof: -The character and objfM'ts of this bill are such as to constitute it a measure of pubhc policy which ouj^ht not to be dealt Avith by any private bill.' " (See 136 E. Com. J. 102 ; Can. Com. J. [1882] 410.) On Order for Committee of the Whole. The order of the day being read for the House in Committee- on the bill to establish a Supreme Court and a Court of Exchequer ibr the Dominion of Canada; And the question being proposed, That 3Ir. Speaker do now leave the chair ; ]VIi\ Baby moves, in amendment, seconded by Mr. Mousseau : " That all the words after ' That ' to the end of the question be left out and the following words added instead thereof: 'In the resolutions adopted at the conference held at Quebec, etc' " (Can. Com. J. [1875] 284-285.) To defer Consideration of a Bill. The order of the day being read, for the second reading of the bill to amend " An Act to enlarge and extend the powers of the Credit Fon§ier, Franco-Canadian." And the question being proposed, That the bill be now read a second time ; Mr. Boiirassa moves in amendment, seconded by Mr. Fiset : " That the word ' now ' be left out, and the words ' this day six months ' added at ths end of the question." In Case of a Bill temporarily Superseded. That the bill to amend the Insolvent Act of 1875 be read a second time on Thursday next. (Com. J., 1876, p. 245.) That this House will, on Monday next, resolve itself into a committee to consider further of the bill (Com. J., 1883, p. 159.) MOTIONS RESPECTING PRIVATE BILLS. In case the Committee on Standing Orders recommend a sus- l-ension of the 51st i-ule respecting notice, the following proceed- ing is necessary : FORMS OF MOTIONS. ^55 Mr. Cameron, of Victoria, moves, seconded by Mr. Bergin : " That, the fifty-first rule of this House be suspended as regards a bill to incorporate the Qu'Aijpelle, Long Lake & Saskatchewan Railroad and Steamboat Company, in accordance with the recommendation of the Select Standing Committee on Standing Orders ; and tliat he have leave to bring in the said bill." The foregoing form of motion is commonly used in such cases, but sometimes, and more correct!}', the motion is divided into two distinct propositions as below : Mr. Killam moves, seconded by Mr. Brown, " That the fifty-first rule of this House be suspended, in so far as it affects the petition of the Exchange Bank of Yarmouth, Nova Scotia, in accordance with the recommendation of the Select Standing Committee on Standing Orders." This motion having been agreed, Mr. Killam moves, seconded by Mr. Bi-own, for leave to introduce the bill as above. Title amended on Motion for Passage. Mr, G-ault moves, seconded by Mr. Coursol, " That the bill do pass and that the title be ' An Act to amend the Act of incorporation of ' The Accident Insurance Company of Canada,' and to authorize the change of the name of the said Company to ' The Accident Insurance Company of North America.' " Disagreement to a Senate Amendment. The amendments made by the Senate to the bill intituled "An Act to incorporate the Missionary Society of the Wesleyan Methodist Church in Canada " were read a second time. The first amendment having been agreed to, Mr. McCarthy moves, seconded by Mr. Cameron, of Victoria, to disagree to the second amendment for the following reason : (Here state reason in full as on page 32(3, journals of 1883.) Refunding of Fees on a Private Bill. Mr. Williams moves, seconded by Mr. White, of East Hastings, " That the fees and charges paid on the bill to incorporate the Univer- sity of Saskatchewan and to autliorize the establishment of colleges within the limits of the diocese of Saskatchewan be refunded, loss the cost of printing and translation, in accordance with the reconiinondation of the Select Standing Committee on Miscellaneous Private bills." 48 750 APPENDIX. H. FORM OF PETPriON TO THE THREE BRANCHES OF PARLIA- MENT FOR A PRIVATE BILL. To His Excellency, the Most Honourable the Marquis of Lans- downc, Governor-Grencral of Canada, etc., etc., etc., in Council. The Petition of the undersigned of the of humbly shcwcth : That {here state the object desired by the petitioner in soliciting an Act.) Wherefore your petitioner humbly prays that Your Excellency may be pleased to sanction the passing of an Act (/or the pur- jioses above mentioned). And as in duty bound your petitioner will ever pray. .ci- i. \ f Seal, in the case of an existing (Signature) | (^^rporation. ^ (Date.) {To either House.) To the Honourable the \ Vt^_._ '_j- n [■ I House of Commons of Canada, in Parliament assembled : The Petition of the undersigned of the of humbly sheweth : That {here state the object desired by the petitioner in solicit- ing an Act.) "Wherefore your petitioner humbly prays that your Honourable House may be pleased to pass an Act {for the purposes above men- tioned.) And as in duty bound, your petitioner will ever pray. (Signature) J^ Seal, as above. {Bate.) NOTIFICATION OF VACANCIES. YSt NOTIFICATION OF VACANCIES IN THE HOUSE OF COMMONS, AND OF SPEAKER'S WARRANTS FOR NEW WRITS. 1. Notification by two members in case of a vacaticy by death or the nccepiance of office. Domirdm of Canada. | ^^^^^ ^^ Commons. To wit : ) To the Honourable the Speaker of the House of Commons : We, the undersigned, hereby give notice that a vacancy hath occurred in the representation in the House of Commons, for the Electoral District of {liere state Electoral District, cause of vacancy and name of member vacating seat.) Given under Our Hands and Seals, at , this day of , 188 Member for the Electoral Distinct of Member for the Electoral District of Dominion of Canada, } -rr^ ri Tow"t- I House of Commons. 2. Notification by two members in case of absence of Speaker. To the Clerk of the Crown in Chancer}-. The Speaker of the House of Commons being absent from Canada, these are to require you, under and in virtue of the 41st Vict., Cap. 5, sec. 14, subsection 2, to make out a new writ for the election of a Member to serve in the present Parliament for the Electoral District of in the Province of in the room and place of who, since his election for the said Electoral District, hath Given under Our hands and Seals, at , this lay of in the year of Our Lord one thousand eight hundred and Member for the Electoral District of Member for the Electoral District of Y58 APPENDIX. 3. Resignation of a Member. Dominion of Canada, ) ^^^^^ ^^, Commons. To wit: j To the IIononi"iI)lo tlic Speaker of the House of Commons : I, member of the House of Commons of Canada, for the electoral district of , do hereby resign my seat in the said House of Commons, for the constituency aforesaid. Given under my hand and seal at the , this day of , 18 [L.S.] Witness, &c. Speaker's Warrants for New Writs of Election. 1. In case of death, resignation or acceptance of office. Dominion of Canada, ) -u- ri m -^ •, . ' V House of Commons. To the Clerk of the Crown in Chancery : These are to require you to make out a new writ for the election of a Member to serve in this present Parliament for the Electoral District of , in the room of who, since this election for the said Electoral District hath {here state reason for issue of warrant ; acceptance of office, resignation or decease.) Given under my hand and seal at this day of in the year of our Lord one thousand eight hundred and Speaker. 2. 7/1 case of voiding of seat by decision of Election Court. Dominion of Canada, ) ,, ^ To wit- ( House of Commons. To the Clerk of the Crown in Chancery : These are to require you to make outa new writ for the election of a Member to serve in this present Parliament for the Electoral District of in the room of whose election for the said Electoral District has been declared void. Given under my hand and seal at this day of m the year of our Lord one thousand eight hundred and Speaker. INDEX. Absence, Leave of, 146. Abstract resolutions, 46S-9. Accounts and Papers ; presentation, 294; character of, Ih. ; form of motions for, 275 ; distinction be- tween addresses and orders, 276- 278 ; returns in answer, 278-79 ; often presented in a session sub- sequent to the order, 279 ; ordered to be printed, 279, 286, 287, 289- 90 ; carefulness in preparation necessary, 279 ; sometimes pre- sented by ministers without a formal motion, 280 ; circum- stances under which pajDers are refused, 280; when public in- terests demand it, 281 ; confiden- tial communications, 281, 282, 284 ; rules of imperial govern- ment with respect to governor- general's despatches, 282, 284 ; should not l:)e asked for purposes of private litigation, 284; shoiild relate to matters within legiti- mate functions of parliament, 285 ; institutions established for public objects, or companies to whom parliament has given cer- tain privileges, should afford all ])roper information, when called upon, 285-286 ; interchange of documents between the houses, 404. Acts of parliament; how introduced, 570; remain in custody of clerk of the parliaments, 583. Addresses : I. Address in answer to speech at opening of parliament ; pro- Addresses — continued. ceedings in the Senate, 223-224; in the Commons, 231-235. II. On general subjects, to the cjueen or the governor-general, 292; founded on resolutions, 293 ; select committee appointed to draft the same, 294. III. Joint, originating in the Commons, 294-295 ; in the Senate, 295-296. IV. Of condolence or congratu- lation to the sovereign, passed nem. con., 296; to the governor- general in case of elevation to the peerage, 297. V. On retirement of governor- general, 297 ; proceedings in case of Lord Lisgar, 298 ; of Lord Dufierin, Ih. ; of Lord Lome, lb. VI. Presentation, mode of, 299. VIL To the Prince of Wales in 1860, 304-306. VIII. For accounts and papers, 275-277. See Accounts and Papers. IX. For a certain expenditure, 504 ; procedure in English Com- mons, lb.; cannot ho moved in Canadian house without recom- mendation of governor-general, 505. Adjournment ; of parliament at pleasure of sovereign, 238 ; house not bound to obey such com- 760 INDEX. Adjournniont — continunJ. iiiands, Ih.; over holidays, 241- L'42| for a lonriofl, 242-243; duriii|4 iiloasiirc, 24() ; in absonco of (|Uoruiii, 247-248 ; of debate on bill, 2r)4-255; on notices of motions, 257, 258, 334; on ques- tion for roceptifjn of petitions, 232; on a (lueetion of i)rivilego, 318; of the house, to supersede a question, 333-334 ; of debate, should bo pure and simple, 335 ; of tlie house, or of tlie debate, may bo moved to previous question, or to reading orders of the day, 338 ; debate on motions, 35l ; reply allowed to mover of sub- stantive question for adjourn- ment of the house, Ih.; procedure in Canadian Commons, 352 ; limi- tations to debate on motions, 352, 353,355, 356 ; new rules of English Commons to prevent abuse of motions, 380-381. Affirmation. See Oaths. Agents, parliamentary, 622. Algoma, election for, when held for Ontario Legislature, 66, n. Amendments; moved without no- tice, 325; proposed to leaA'e out certain words, etc., lb. ; how put, 327-328 ; form in Canadian houses different from that of English parliament, 32(), v ; amendment to amendment, 329; when re- solved in aliirmative, cannot be struck out in whole or in part, Ih. ; words added to main motion, as amended, 330 ; only two amendments proposed to a ques- tion at the same time, 330-331 ; should be relevant to a motion, 331-333 ; mode of amending a question, line by line, or para- graph by paragraph, 331, 542; on going into supply, 476-481; on report of supply or ways and means resolutions, 490-491; to appropriation or sujiply IMll, 499. See Bills. Amyot, Mr.; his opinion as to questions of jurisdiction affecting private bill legislation, 603, n. Anglin, Mr. Sjxiakor; resigns, 132; reelected, 145 ; makes certain ap- pointments, not sanctioned, 174, V. ; his opinions on points of order, 217, «., 265, 268, n., 269, 291, 309, «., 313, 320, 346, 543. Annunciation ; houses adjourn over^ 241. Apologies ; required of and given by members, 363, 368, 371, 373, 375. Appropriation accounts ; audit of, 505 et seq. Appropriation Act. See chap. xvii. on Supply, sec. ii. Arrest ; freedom of inembers from ; in civil cases, 190 ; but not in criminal cases, Ih. ; statutes de- fining privileges, 187 ; of local legislatures, 207-208 ; duration of the privilege, 191 ; causes of, communicated by the crown, 303; by judges, Ih. ; witnesses, counsel, and others in attendance on parliament, privileged, 196. Ascension Dav ; houses do not sit, 241. Ash Wednesdav ; houses do not sit. 241. Assent, royal ; to bills, 567 et seq. Attendance of members ; on par- liament, 145 ; on committees, 435- 436 ; call of the house no longer usual, 146- Appendix to this work ; British North America Act (1867) ; an act respecting the establishment of provinces in the dominion of Canada (34-35 Vict., c. 28); an act to remove certain doubts with resjDect to the po^vers of the par- liament of Canada under section 18 of the B. X. A. Act (38-39 Vict., c. 38) ; Governor-General's instructions, etc ; proclamation summoning parliament ; prayers ; forms of motions and petitions ; Speaker's warrants. INDEX. tei Auditor-General ; appointment by commission, 505 ; his duties, 506 et seq. ; with respect to accounts and expenditures of the two houses, 184, 509. Ballot, at elections ; acts relative to, 131. Banking and Commerce, commit- tee of; appointed in tlie Senate, 427; in the Commons, 428, 430; bills referred, 642. Bankruptcy; position of senators affected by, 108. Bar of the House; in the Senate, witnesses sworn and examined, 202 ; oatli administered under act, 458, 460 ; in the Commons, witnesses examined, 202. Bills : I. In General. — Definition ; divided into distinct parts, 510; preamble, 511; enacting author- ity, preamble in suj ply bill, 512 ; divided into two classes, public and private, 512-513; may ori- ginate in either house, 513 ; appropriation or tax bills, initi- ated in the Commons, 513-514 ; Senate bills, involving expendi- ture or taxes, laid aside, or sent back with reasons for disagree- ment, 514 ; Commons waive ])ri- vileges in certain cases, lb. ; pecuniary penalties or fees for services performed, 515; bills in upper house presented with money clauses in italics struck out in committee, 516. II. Introductiov. — No notice in Senate, 516; but one necessary in Commons, lb.; procedure on motion for leave, 517; first read- ing, 518 ; not read at length, lb. ; relating to trade, originating in committee of the wiiolo,51s ; pre- cedents of bills of this nature, 518-23 ; involving public aid or charges, considered first in com- mittee of the whole, 523-524 ; procedure in case of bills, inci- dentally affecting the revenue, lb.; rule does not ajjply topecu- Bills — continued. niary penalties, 525 ; or to fees or charges for services performed, lb. ; or to declaratory acts, 526 ; or to local rates or charges, 527 ; clauses in consolidation bills im- posing new charges originate in committee, 527-528 ; introduced by mistake, 557 ; once presented not altered except bv house, 500-561. III. Second Beading. — Motion proposed, 528 ; must be printed in two languages, 529 ; principle of bill then discussed, /6.; amend- ments at this stage, 530 et seq; motion superseded, 530 ; but bill may be revived, lb. ; order dis- charged and bill withdrawn, 531. IV. Order for Committee of the Whole. — Calling of order, 532; motions proposed, lb. ; clauses not discussed in detail, lb. V. Instruct ionf!. — Time for mov- ing, 533; their nature, //'. ; pre- cedents from English practice, 533-535 ; from Canadian practice, 535 ; rule respecting, 535-536 ; pro- cedure in cases of expenditure or taxes, 536 ; or trade,536 ; not man- datory, 537 ; cannot be moved after reading of order for house again in coiumittee, 538. VI. Reference to Select Commit- tee. — Frecpiently done, 538 ; ad- vantages of practice, 539; several bills referred at one time, 540; rei:»orted, lb. VII. In Committee of the Whole. — In the Senate, 541; (title), lb. ; (clauses), lb. ; in the Com- mons, (title), lb.; (clauses), lb.; amendments proposed, 542 ; limi- tations, 54 -'-544 ; notice need not be given, 540; money or tax clauses nmst Ije considered in a previous committee, 544; recon- sideration of clauses, 545 ; progress reported, 54() ; no report, lb. ; bill superseded, //'. ; but may be revi- ved, lb. ; cases of no reference to committee, 548-549. 1G2 INDEX. Bii-i.s — continued. VIII. Jirportid from Committee of the ll'AoA'.— ilccoivcd forth- Vvitli, wlu'.n not amended, 547; bill considcrtxl, when amended, immodiatoly or afuture time, I b. IX. Third Readinfj.—Trocednre in the Senate of amending at tills stage, 550 ; no amendment in Commons but of a verlial natnre, 550; mustgo l)ack to committee to amend materially, lb. X. Prtssar/^'.— Amendments, 551; cannot go back to committee, / 6. / title amended, Ih. XI. Amendment!^ after Fass- af/c. — Bill taken up to other bouse, 551 ; amendments thereto, 552 ; agreed to, 553 ; or disagreed to for reasons, Ih.; either liouse may insist or not insist on disagree- ment, lb. ; consequential amend- ments infringing on Commons' privileges, 554 ; debate limited at this stage, i/j.; amendments in- fringing on Commons' privileges, 555. XII. Royal AfMTit. — By the gov- ernor-general, 567 ; reserved bills, 508 ('< scq-; royal instructions, 569 ; changes therein, 572; imperial power of disallowance, 573 ; copies of acts transmitted to imperial authorities, 574; assent in pres- ence of the two houses, 575 ; infor- malities in passage of a bill which has received assent, 576 ; English precedents, 576-577; Quebec cases, 577; assent in the provincial legislatures, 577 ct seq. ; lieuten- ant-governors in certain cases withhold it, 578 ; an exceptional practice, not explained, 579-81. XIII. Varioris Proceedings.— Revival of a bill temporarily sus- liended,555; no notice required, 546, 556; exjx>ditiou in passage, 558; practice in the Senate, Ih.; in the Commons, lb.; English procedure explained, 559; mis- takes corrected during passage, 561 ; amendments left out ancl subsequently added, J6.; return Biu-s — continued. of bill not passed all its stages, 562; royal consent not given, 7 /a; bill lost by accident, Ih.; once rejected not again offered in same session, 563 ; exceptions to gene- ral rule, 564-566 ; bills of the same title and purport, 566-567 ; amend- ment or repeal, in the same ses- sion, 582 ; commencement of an act, Ih. ; duty of clerk of the par- liaments, 583 ; distribution of the statutes, Ih. Black Rod. See Usher of the Black Rod. Blake, Edward, Hon. ; his mission to England, and consequent modi- fications in governor-general's instructions, etc., 50, n, 571 ; his opinions on questions of legis- lative jurisdiction, 596, n, 603; on select committees, 430, n ; as to an act w'hich had not passed all its stages, 577. Blanchet, Mr. Speaker; read pray- ers in French and English, 249 ; his decisions on points of order, 262, n, 275, 560. Boards of trade, bills relative to, 590. Books, newspaijers, documents ; not react in certain cases, 346. Bouc, C. B. ; expelled from assem- bly of Low er Canada, 150. Breach of Privilege. See Privileges of Parliament. Bribery at elections ; acts to pre- vent, 121-122. Bribes ; resolution declaring offer of, to members, a breach of privi- lege ; made standing order of Commons, 196. British Columbia. See Parliament- ary Institutions in Canada, VII. Braxisii North Ambbica Act, 1867. — (Apjxjndix I of this work; follow- ing figures refer to sections of the INDEX. 763 Bkitish Xorth America Act — con- tinued. Act:) Preliminary, 1-2; union, 3-8; executive, power, 9-16; con- stitution of parliament, 17-20; of the Senate, 21-36 ; of the House of Commons, 37-52 ; money votes, 53-54; royal assent and disallow- ance and reservation of bills, -55-57. Provincial constitutions: Executive power, 58-68 ; legisla- tive power, in Ontario, 60-70 ; in Quebec, 71-80 ; legislatures of Ontario and Quebec, summoned, continuance of election laws, etc., 81-87; constitutions of Nova iScotia and Xew Brunswick, 88; first election in provinces, 89 ; application to legislatures of pro- visions respecting money votes, etc., 90. Distribution of legis- lative powers : Of parliament, ■91 ; of provincial legislatures, 92; education, 93. Uniformity of laws in Ontario, Nova Scotia and New Brunswick, 94. Agriculture and immigration, 95. .Judicature, 96- 101. Eevenues, debts, assets, tax- ation, 102-126. .Miscellaneous pro- visions : As to legislative coun- cillors of provinces becoming senators, 127; oath of allegiance, how administered, 128 ; continu- ance of existing laws, courts, officers, etc., 129; transfer of offi- cers to Canada, 130 ; appointment of new officers, 131 ; treaty obli- gations, 132; use of English and French languages, 133 ; appoint- ment of executive officers for Ontario and (Quebec, 134 ; powers and duties of executive officers, 135 ; great seals, 136 ; construction of temporary acts, 137; as to er- rors in names, 138 ; as to issue of jiroclamations before union, to commence after union, 139 ; as to issue of proclamations after imion, 140; penitentiary, 141 ; arbitration resjx>cting debts, 142 ; division of records, 143 ; constitu- tion of townships in Quebec, 144. Intercolonial railway, 145. Admission of other colonies, 14()- 147. Schedules: I. Electoral dis- tricts of Ontario ; II. Electoral districts of (Quebec; III. Provin- cial public works and property to British North A.merica Act — con- tinued. be the property of Canada ; lY. As&ets to be the property of Ontario and Quebec conjointly ; A'. Oath of allegiance and declara- tion of qualification. Acts in amendment thereof, 34-35 Vict., c. 28 ; 38-39 Vict., c. 38. Budget Speech, ply, sec. 7. See Cfiapter on Suj)- Call of the HorsB ; no longer usual in Canadian Commons, 146. Campbell, Sir A. ; member of Que- bec Conference, 42n. ; his opi- nions on constitutional and par- liamentary questions, 58 ??., 672, 675 n. Canada, Parliamentary Institutions in. See Parliamentar;/ Institutions, etc. Candidates for the House of Com- mons ; eligibility of, 112-113 ; 124 et seq. ; 130 et seq. Cartier, Sir George E. ; his remains interred at public expense, 504; address in the Commons on sub- ject, 504. Canting voice of Speaker of llie Com- mons. See ChajJter XIII. on Divi- sions, sec 4. Certificates ; of appointment of senators, laid l>elore Senate, by speaker, 109, 221 ; by clerk, 223. In the Commons, by speaker, 231, 236 ; on certain occasions by clerk, 144 ; proceedings in case of non-production, 141; of judges in election cases, 120. Chairman of Committees ; of the whole house, in the Senate, 416 ; in the Commons, lb.; of select committees, 438 ; how they vote, in the Senate, 443 ; in the Com- mons, lb. Chaplain; appointed in the Senate l)y the governor-general, 160 reads prayers daily, 248. ■(14 INDEX. Civil Sorvioo; legislation rcspcct- Civil List; ntiitnil of", '25,05. ( lanscs ; inono.y, in bills, 523,544; involvinfj; taxation, how taken up in committees on bills, 544. Clerk Assistant; appointed in the Senate, 15!); in the Commons, l(j!i, 171 ; second clerk assistant in t he Com mons, sometimes appoint- ed, 171, 172. Cle.rk of the Crown in Chancery; ai)pointed by the Crown; his duties, 177, i:t W(j.; attends the house with election returns ; amends the same, when so or- dered, 177; reads titles of bills, when his Excellency gives royal assent, 178; is present with re- turn book of members at opening of new parliament, 224. Clerk of the House of Commons ; appointed by commission under the great seal, KiU ; his duties, 1(19-1 70; has control and direc- tions of otlicers and clerks, 171; has one or more assistants at the table, 169-172; employs extra writers, 173 ; administers oath of allegiance to members, 224-225; to otiicers, clerks, and messengers, 174-175; subscribes to certain newspapers, 183 ; presides at elec- tion of spoaker, 226-227; issues warrant for issue of writs in ab- sence of speaker, 120, n. ; signs onlers for attendance of persons, 202 ; reads petitions at length when called upon, 260; lays re- turns to certain orders on table, 278 ; signs orders and addresses for papers, 278 ; responsible for safe keeping of papers and records 171 ; again reads messages when necessary, 3t)l ; may amend no- tices of motions or questions, 308, n., 323; takes down mem. ber's words, by order of speaker, Ii7() (7 S('7. ; records divisions, 386- :>S7; take^ messages to Senate, 397-398; may attend committee of other house as witness, 399. Clerk of the Senate; appointed by Clerk of the House of Commons— . continued. commission under the great seal, 1()8; acts as accountant, Ih.; liis general duties, 159 ; styled clerk of the parliaments, lb. ; gives certilied copies of acts, 159 ; cer- tifies minutes transmitted to gov- ernor-general, 161 ; can appoint a deputy, 160, v. ; signs orders for attendance of witnesses, 202 ; proceedings in case of a new ap- I)ointment, 223 ; communicates messages to lower house, 397, 398 ; may, by order, attend Com- mons' committees as witness, or communicate certain pajpers, 399. Clergv Reserves; question settled, 32,33. Closed doors ; matters of order dis- cussed, in the Senate, 363 ; in the Commons, 251 ; prayers, 250- 251. Cockburn, ^Ir. Speaker, reappoint- ed, 169, n. ; liis decisions on points of order, 267, 330, 349, n. ; 535. Colborne, Sir .Tohn ; lieutenant-gov- ernor of Upper Canada, 32 ; esta- blishes rectories, lb. Colonies of Canada; res^^onsible government in, 28 et scq. Commissioners of Internal Eco- nomy ; appointed bj' governor- general, 183 ; must be members of Commons, Ih. ; names commu- nicated by message, lb- ; speaker acts as chairman, 183-184 ; its functions, 184. Commitment; tlie riglit of old legis- latures, 198 ; of the Senate and House of Commons, 199 ; for breach of privilege, 200 ; petitions for release, lb. ; for offences in a former session, 199, n. ; concluded by prorogation, 199. Committees : I. CommiUcc'^ of tJie H7(0?f', 413; owe their origin to " grand com- mittees," 413-414 ; on the state INDEX. 765 CoMMMiTTEBS — continued. of the province, no longer custom- ary, 414 advantages, 415 ; rules in the Senate, 415-416 ; in the Commons, 416-417; questions of order decided by chairman, 417 ; disorder therein censured by house only, 417-418; progress reported, 418-420 ; question of order referred to speaker, lb. ; no question put on resuming committee on a question, except in case of committees of supply and ways and means, 418-419; record of proceedings, 419-420 ; division therein, 419 ; no names recorded, Ih. ; question super- seded bv motion that chairman do leave the chair, 420-421 ; but may be revived, 421 ; no quorum, 422 ; proceedings at six o'clock, lb. ; report, 423 ; new rules of the English Commons, 424-425. II. Standing or Sessional : In the Senate, 426 ; banking and commerce, etc., 427-428; in the Commons, 428; procedure in ap- pointing, 429 ; number of mem- bers thereon, 430; reduction of number in public accoimts, Ih. ; organization and procedure tliere- in. See injra, iii. III. Select or Special Commit- tees : In the Senate, 430-431 ; in the Commons, 431 ; notice of ap- pointment necessary, 432 ; certain powers asked for in motion for, lb. ; consist of 15 members, 431 ; rule suspended in case of in- crease, 432-434 ; named by the house, 433 ; members must serve unless excused, 435; quorum, 436; organization, 437-438; pro- cedure tlierein, 438 et setj. , ad- journs from [)lace to place, 442 ; cannot sit after jirorogation, 442 ; divisions (in the Senate), 443 ; (in the Commons), Ih ; strangers, 443- 444 ; secret, 444 ; order of refer- ence ; reports, 446 et scq. ; sub- committees, 447 ; presentation of reports, 451 ; concurrence, 452- 453; witnesses, 454; senators' or members' attendance requested, 455-456; refusal of witness to api^ear, 456; payment of wit- CoJiMiTTEES — con tinned. nesses, 457-458; examination un- der oath, 458-461. IV. Joint Committees, appointed on library and printing of Parlia- ment, 403, 427, 430 ; work very advantageously, Ih.; for proce- dure therein see supra, iii. See Private Bills. Commons, House of; Its constitu- tion, 56-59 ; representation there- in, 110, 111,116 ; election of mem- bers, 112-117 ; controverted elec- tions, 117-123 ; bound to take notice of legal disal)ilities of its members, 123 ; power of house to order issue of writs, 12.3-124 ; dual representation, 124-128 ; who maj' sit therein under independence of Parliament Act, 128-137 ; min- isters of the Crown have seats, 53-135; contractors not eligible as members, 131-134 ; members elected for two constituencies, 139-140 ; double returns, 140-141 ; introduction of members, 141- 145 ; attendance therein, 145-146 ; power to expel, 148. 153, 201, 202; to suspend, 153, 154, 201, 202; places of members, 155-156 ; speaker, 162-169; officers, 169- 176 ; admission of strangers; 176- 177; votes and journals, 178-180, official reports, 180-181 ; appoint- ment and functions of commis- sioners of internal economv, 183- 184 ; accounts 184, 185, 509'; pow- ers and privileges under B. N. A. Act, 187-188 ; power to summon and examine witnesses, 202-205 ; rules, orders, and usages, 212, 213, 215, 216, 217; use of the French language, 218-219 ; pro- ceedings at meeting of a new parliament and election of speak- er, 224-231 ; the mace, its history, 228, n. ; speech considered, 231- 234; proceedings at ai)rorogation, 23()-237 ; effect of i>rorogation on ])roceedings, 239; days antl hours of meeting, 241 ; adjournments over holidays, Ih. ; Lmg adjourn- ments, 242 ; (leceaso of members, 243; two sittings on one day, 244 ; protracted sittings, 245 ; li'A) INDEX. (luoruin, 247 ; prayers, 248 ; order of tlfiily l)n.sincss, 250 et acq.; pmsoiitatioii of petitions, 260-263 ; rules as to irro^ular petitions, 263- 266 ; as to ju'titions for pecuniary aid, 2rinatinv' in the house, 293; joint, 294-295 ; of conf^ratulation or condolence, 296-297 ; on retire- ment of j^'overnor-freneral, 297- 298 ; presentation, 300-301 ; mes- sages from his Excellency, 301- 302 ; messages to the Senate, by clerks, 397-398; conference, 399 it scy. ; interchange of documents with other house, 394 ; relations with Senate as to monev and tax Ijills, 407, 408, 500, 503, 514, 516 ; select bills rejected by Senate, 409-410 ; should not agree to "tacks" to bills of supply, 410- 500; select standing committees, 414-426 ct feq. ; on private bills, 620 ; committee of the whole, 416, etseq.; on bills, 541 ct seq.; can alone initiate money and tax bills, 500-503. See clerk, parliament, speaker. Confederation. See Parliamentary Institutions in Canada, VI. Conferences ; mode of regulating, 399 et seq. Consent of the Crown. See Chapter XVII. on Supply, sec. 3. Consequential amendnifnts. See Chap- ter on Bills, XVIII. , sec. 17. Constitutional Act, 1791. See Parlia- mentary Inslit^ttions in Canada, IV Contemjit of Court , members com- mitted by courts of justice, 303. Contingent accounts, committee of; appointed in the Senate, 160 (t .teq. ; no longer appointed in the Commons, 183. Contractors ; disqualified from serv- ing as members, 131 et seq. Contents and non-contents. See Divi- sions. Copyright bills ; need not originate in committee of the whole, 521. Corporations, private bills from ; must be under common seal, 623. Corpus Christi ; houses adjourn over, 242. Counsel ; when in attendance on parliament, imvileged, 196 ; jnembers not to act as, before English private bill committees, 621 ; on behalf of persons, at the bar, 200; in divorce cases, 675- 676. Counting tlie House; no quorum, 247-248. Christie, Robert ; expelled from as- sembly of Lower Canada, 150-152. Christie, Mr. Speaker; Senate ad- journ, and name members to attend liis funeral, 243 ; his opin- ions on points of order, 268 n., 389 n. Crossing the house ; deportment of members, 343. Ceowx, the : represented by the governor-general, 49 ; demise of, 239 ; summons parliament, 220 ; causes of summons, declared, 226-231; prorogues, 221-236; dis- solves, 220-240 ; duration of par- liament, no longer dej^endent on, 220 ; message from, in case of arrest of members, 303 ; recom- mendation to votes of money, 463, 470, 493 ; consent to bills atiecting prerogatives or pro^^er- ty, 472; address for a grant of money, 504. Customs bills ; affect trade and ori- ginate in committee of tlie whole, 522-527 ; not always considered in committee of the whole in Canadian Commons, 496. INDEX. 767 Debates : Official reports of, 180- 181 ; freedom of speech in Parlia- ment, 191-192 ; no debate allowed in Senate in giving notice of a motion, 308 ; but a senator may make explanations, ///. ; latitude allowed in upper house in putting questions, 321-322 ; no debate in Commons on a cj[uestion, 323 ; motions duly proposed may be debated, 343 ; precedence in, 341- 345 ; written speeches not per- missible, 345 ; extracts from papers, 346 ; no articles in news- papers, letters, or communica- tions, commenting on debates, allowable, lb. ; public documents, when quoted, must be laid on table, 347 ; references to queen or her representative, 347-349 ; relevancy of remarks, 349 ; irre- levancy not permitted, 350; no limits to length of speeches, lb.; the cloture not adopted in Canada, 351 ; debate on motions for ad- journment, 351-352 ; limitations to remarks on such motions, 352- 353 ; rules limiting speeches on a question, in the Senate, 353 ; in the Commons, 354; seconding motions, lb.; reply allowed to mover of substantive motion, lb. ; member who moves amend- ment or adjournment cannot speak again, 355 ; adjournment of debate to allow a member to continue his speech, lb. ; personal explanations, 356 ; limitations to the privilege, 357 ; calling in question a member's words, 358 ; member in possession of floor not to be interrupted, Jb.; except on question of order or privilege, lb. ; remarks on calling of orders, 359-360 ; ministerial explanations, 360-3G1 ; referring to other mem- bers, 361 ; to the other house, 362 ; to previous debates, 362- 363 ; rules for the preservation of order, in the Senate, 363-364 ; unparliamentary remarks, never permitted, 364-366; calling a member to order, 367-368; duty of speaker, lb.; naming a mem- ber, 368-370 ; words taken down, 370-373; words to be retracted, 374 ; duty of house to prevent hostile meeting on account of words uttered in debate, 374-375 ; Debates — con tinned. withdra^^'al of member whilst his conduct is debated, 376-377; re- ferences to judges and other per- sons, 377-378 ; new rules of Eng- lish Commons to close debate on a question adequately discussed, 380 ; on motions of adjournment, 380-381 ; no debate allowed on putting question for susi^ension of a member, named for disre- garding authority of chair, or abusing rules of the house, 382. Debts, due to the Crown ; petitions compounding, not received, 269. Demise of the Crouri. See Chapter VL, sec. 8. Deputy- Governor. General. See Governor- Deputy-Speaker ; in the English House of Commons, 165 n. Dilatory motions ; postpone or supersede c[uestion for time being, 333 ; their forms — that the house do now adjourn, 334; that the house do now proceed to the orders of the day, 335 ; that the question be now put, 33 J ; amend- ments to such motions, 338. Disallowance. See Parliamentary Institutions in Canada, VIII. Disqualification ; of Senators, 107- 108 ; of members of the Commons, 124, 134, 149. Dissolution of Parliament ; bv the Q-own, 239-240 ; not determined by demise of the Crown, lb. ; duration of privilege after, 190. Division ; putting the question, 384 ; contents and non-contents in the Senate, lb. ; j^eas and nays in Commons, lb. ; Senate rule as to entering division, 385 ; Com- mons' rule, lb. ; members called in, 386 ; taking a division, 387 ; inconveniences of Canadian sys- tem, Jb. '//. ; result declared, 388; challenging a vote, lb. ; members must be in house and hear ques- 7 08 INDEX. \yi\W\on—couUnue(l tinn put, Ih.; members must vote la Commons, 389; Senate rule on subject, Ih.; pairs, lb.; member votini In- stitutions in Canada, VI., VIII. Masters in chancerj ; appointed in the Senate, 158, 397 ; carry mes- sages to other house, 398 ; their office abolished in the Lords, 397 n. Meeting of Parliament. See Chap- ter VI. Members of the Commons : num- ber, 110-111 ; insane persons not eligible as, 112 n. ; their election, 113 ; their elections controverted, 118-122 ; cannot sit in provincial legislatures, 124 et seq.; vacate seats by acceptance of ofhce of profit, 130-139 ; cannot hold con- tracts, 131-13G ; resignation, 137- 139 ; forms of resignation. 758 ; returned for two constitu- encies, 139-140; procedure in case of a " double return," 140 ; introduction, 141 et seq. ; attend- ance, 145-146; indemnity, 146- 148 ; expulsion and disqualifica- tion, 148 et seq., 201-202 ; suspen- sion, 154-201 ; questions aflccting them referred to select commit- tees, 154-155 ; places in the house, 155-156 ; speaker must be a member, 1G2, 227; privileges, powers, and immunities, 187 et seq.; personal privileges, 189-191 ; freedom of speech, 191-192 ; libel- lous reflections on, 192-193 ; assaulting, threat<.Mung, or chal- lenging, 194; priviltMied persons not members, 196 ; sworn at commencement of a parliament, 49 112 INDEX. Members of the Commons — con- tinued. 224-225 ; proceed to Senate at opening, 225,229; at prorogation, 236; reports of judges relative to elections laid before house, 231, 236; decease, 243; number neces- sary for a quorum, 247; present petitions, 260; may not discuss their contents, 261 ; move recep- tion of opposed petitions, 262; member may not present a peti- tion signed by himself, 262 ; can- not read it at length, 269 ; may refuse to present it when it re- flects on house, 270; procedure in moving for orders and ad- dresses, 275-278 ; may be refused papers under certain circum- stances, 280, 286 ; move for print- ing documents, 290-291; stand uncovered on reading of message from governor-general, 301 ; pro- pose motions, 308 et seq. ; move amendments, 325 et seq. ; their deportment, whilst speaking, or in their places, 342, 344 ; pre- cedence on rising to speak, 344- 345 ; may not read written speeches, 345 ; nor papers or letters reflecting on house, 346; may not refer disrespectfully to her Majesty or the governor- general, 347-348 ; should confine themselves to question under consideration, 349-350 ; not limi- ted to time in speaking, 350; may not discuss certain subjects on moA'ing the adjournment of the house or debate, 352-353; may not speak twice except in ex- planation, or on a substantive motion, or on proposal of new fiuestions by other members, 353, 357 ; cannot call in ciuestion a member's words, 358 ; nor in- terrupt others except to order, 358-359 ; may make remarks on calling of orders, 359-360 ; must not use unparliamentary lan- guage, 363 et seq.; named for breach of parliamentary de- corum, 368 et seq. ; words taken down, 370 et seq. ; misbehaviour in committees or lobbies, 373 ; should retract unparliamentarj'' language, 374 ; may be punished for contempt or obstruction of Members of the Commons — con- tinv/'d. public business, 375 ; withdraw when their conduct is under con- sidei'ation, 376 ; should refer cautiously to judges and courts, 378 ; how susf^ended under new English orders, 382 ; how they vote, 384 et seq. ; having a direct pecuniary interest in a question, may not vote thereon, 392-396 ; must sit on select committees unless excused, 436. Memorials; not considered peti- tions in certain cases, 363. Messages; from the governor- general or deputy-governor at ojjening of parliament, 225-229 ; at close, 236; during session, to assent to bills, 568 ; written or verbal, with respect to public matters, 302-304 ; mode of an- swering, 304; governor-general's message interrupts all proceed- ings, 358; clerks may be bearers of, from one house to the other, 397-398 ; requiring attendance of members of either house as wit- nesses, 398-399. Messengers; appointed for houses, 174. Military councils ; established in Canada, 6. Miller, Senator; his opinion on points of order, 440 n., 455, 671. ]Ministers ; members of the privy council, 54-56 ; vacate seats in Commons on acceptance of office, but may be re-elected, 135. Minutes of Evielence. See Witnesses. ■Minutes of proceedings; in the Senate, 161. Money Bills ; recommended by the CroAvn, and founded on resolu- tions in committee of the whole, 470, 513, 523 ; not to be amended by upi^er house, 501, 514 ; pre- sented b}- Commons' sj^eaker for royal assent, 503. IXDEX. 11B Motion's ; notice of, required in the Senate, 307; proceedings in tliat house on giving notice, Ih. ; cannot be repeated, once answer- ed, 308; explanatory remarks allowable on giving notice, Ih. ; no seconder required, lb.; no notice of public bills, Ih. ; notice in the Commons, 309 ; rules rela- tive to motions ; must be in writing or print, 310 ; how pro- posed, Ih. ; proceedings in case of irregularities, Ih. ; how with- drawn, 311 ; complicated ques- tions, how divided, 311-312 ; must be in accordance with notice, 312 ; notice of resolutions in committee of the whole neces- sarj', 312-313 ; members should propose their own motions, 313 ; cannot be withdrawn in absence of member who proposed, 314 ; relative to business, made with- out notice by general assent, 314- 315 ; unopposed, 315 ; of privilege, 316 ; their character, 316-317 ; precedence given to them, 318- ' 319 ; of want of confidence, not privileged, 319-321; questions put by members, exceptions to ! general rule respecting motions, } 321 ; in amendment, 325-329 ; amendment to amendment allow- ' able, 329-330 ; amendments must be relevant to motion, 331-333; i dilatory motions, 333 ; of adjourn- j ment, 333-335 ; for reading orders of the day, 335-336; previous [ question, 336-337; amendments to previous question or to motion for proceeding to orders of the day, 338; revival of a question in'tiiesame session, 339; orders discharged, and motions rescind- ' ed, Ih. ; means of revoking a I negative vote, 340 ; motion, once negatived, cannot l>e renewed as I an amendment, Ih. ; forms of, ' app. G. I McCarthy, Mi-. ; his opinion on questions of jurisdiction, 604. INIunicipal system ; its value, 31-32. j Xamixg a Member; for breach of parUamentary decorum, by Mr. Speaker, 368 et seq. I Isewspapers ; kept in reading rooms ' Xewspapers — continued. of both houses, 183 ; attacks in, on members, 201 ; proceedings in such cases, 201, 317, 359 n. ; pro- duced by members, 20 ; read at the table, 317; motions respecting, 317-318 ; extracts from, in debate, 346. Xewfoundland ; refuses to enter con- federation, 47-48 ; representation in Senate in case of its admission, 59 n. See B. N. A. Act., s. 147, ap}}. A. to this u'ork. Nortli-WeH Territory. See Parlia- mentaru Institution.^ in Canada, VI, viii Notice ; necessary in case of special motions in the Senate, 308 ; also in the Commons, 309-310 ; motions must be in accordance therewith, 312 ; none required of public bills in upper house, 308 ; but necessary in Commons, 309 ; none in case of motions of privilege, 316 ; place on order paper, 251-252, 309 ; rules respecting notice for a private bill, 627 et seq. Oath ; taken bv members (in the Senate), 109,' 223; in the Com- mons, 141 et seq., 225 ; by clerk and officers, 175 ; affirmation in lieu of oath, 460; administered to witnesses, at bar of the Senate 458, 460 ; or by chairman or mem- ber of select committees of either house, 460 ; by private bill com- mittees, Ih. ; in case of divorce bills, 670, 673, 674. Obstruction to public business; rules of the English house res- j)ecting. Chapter XII. sec. 25. O'Farrell, John; expelled from legis- lative assembly of Canada, 151. Officers of the two houses ; jirivi- leged, 187 n. ; messages for their attendance as witnesses in the other liouse, 399 ; ]>etitions for their attendance with documents, in courts of law, 180 ; not to act as parliamentary agents. See Cle rk ; Clerk- A s nsta n t. 114: INDEX. Offices under the Crown; holding of, a disqualification for the house of Commons, 130, 134 ; accei^tance of, vacates seat, 130, 138, 139 ; members holding certain offices in the ministry, may be re-elected, 130, 135. Official Reports of Delates- See Hansard. Ontario Liquor License Act; 681 et seq. Orders of the day ; rules arranging business — in the Senate, 250 ; in the Commons, 251-252 ; calling of questions, and orders, 252; arrangement of bills, &c., in Com- mons, 253 ; precedence to special orders, 255 ; strict adherence to order paper necessary, 256 ; un- disposed of, 257 ; place of motions on order pajjer, 257-258 ; motion to read, to supersede a question, 335-336; amendment thereto,338; speaking on calling of orders, 359. Order, questions of; interrupt de- bate, 358. Ouimet, Mr.; his opinion on a question of legislative jurisdic- tion, 603. Paiks; system of (in the Senate), 389 ; (in the Commons), lb. Palgrave, INlr. ; clerk assistant of the English Commons ; his ex- planations of English mode of putting amendments to motions, Papineau, INIr. Speaker; his resig- nation, 163 n. : governor-general refuses to approve of his appoint- ment, 229. Paeliajiext ; constitution of Parlia- ment of Canada, consisting of the Queen, Senate, and House of Commons, 56, 59 ; duration of each (since 1867), 60, 61 ; its legislative powers, 81, 100; num- ber of members in the two houses, 105, 111 ; parliamentary franchise, 113 ; dual representa- tion, 124-125 ; independence of, 128, 137 ; powers of expulsion Parliambxt — continued. and suspension, 148, 154, 201, 202 ; privileges and powers, 186, 199 ; mode of summoning, 220- 221 ; meeting, 221 ; election of speaker, 224 ; prorogation, 236- 237 ; adjournment, 238 ; effect of proroguing, lb- ; dissolution, 239- 240 ; not determined by demise of the Crown, Ib-\ has jurisdic- tion over marriage and divorce, 068. See also BritisJi, North America Act, House of Commons, Members, Priv- ileges and Powers of Parliament,. Senate. Parliamentary Agents ; 622. Parliamentary Txstitutioxs ix Canada ; Origin and Growth of. I. Canada under the French Regime : No legislative assem- blies in French Canada previous to conquest, 1-2 ; nature of first government, 2; functions of governor, lb.; of intendant, 2-3 ; constitution of supreme, after- wards sujierior, council, 3-4; no semblance of municipal govern- ment, 4 ; feudal tenure, lb. ; whole system of administration, centred in the king, 5 ». II. Government from 1760 to 1774: Terms of capitulation in 1760, 5-6 ; treaty of Paris, 6 ; military government for three years, lb. ; proclamation of 1763, establishing system of govern- ment in Quebec, 6, 7 ; no assem- blies called, 8 ; unsettled state of the country, 8-9 ; uncex'tainty as to laws in force, lb. III. Quebec Act, 1774: Inter- vention of Parliament; charter of government, 9 ; opposition to the act in province, 10 ; de- tails of new constitution, 11 ; legislative council established, 11, 12 ; inauguration of new con- stitution, 12-13 ; privy council formed, 13. IV. Constitutional Act, 1791: Two provinces established, 18 ; IXDEX. 775 PaKLIAMBN'TARY IxSTITCTIOXS IN" Canada — continued. immigration of TJ. E. loyalists, 18-19 ; legislative institutions in Upper and Lower Canada, 16, 18 ; meeting of legislature of Lower Canada at Quebec, 17th Decem- ber, 1792, 18 ; of legislature of Upper Canada at Newark, 17th September, 1792, 19 ; a new con- stitutional system intenrled as a transcript of British constitution, 19 ; description of ceremonial at first opening of legislature in LTpper Canada, 19 7?. ; political dithculties, 20 ; dispute between •executive and assemblies with respect to control of supplies and ■civil list, 20; frequent dissolu- tions of Quebec legislature, lb. ; political state of provinces de- scribed, 20, 22 ; rebellion of 1837- 8 ; suspension of Quebec constitu- tion, 23 ; arrival of Lord Durham as governor-general and high commissioner, 24 ; result of his mission, J5. ; his elaborate report on political difficulties, 24 ; value of his suggestions, 24-25. V. Union Act of 1840 : Upper and Lower Canada reunited, 25-2r) ; arrival of Poulett Thom- son (Lord Sydenham), as gover- nor-general, 26; outline of new constitution, 27-28; assembling of first legislature, 27 n. ; com- mencement of new era, 28 ; re- sponsible goverument, 28, 30; arrival of Lord Elgin, 30; impor- tance of legislation from 1841- 1867, 31 ; municipal system, Ih. ; settlement of clergy reserves, 32- 33 ; abolition of seigniorial tenure, 33 ; civil service, 33, 35 ; complete control over civil list and pro- vincial revenues, 35 ; freedom of trade, 36 ; repeal of navigation laws, Ih. ; use of French lan- guage, 36-37; elective legislative council, 37. VI. Federal Union of the Pro- vinces : Political difficulties, 38 ; representation by population, lb. ; double majority theory, 39-40 ; jjolitical dead-lock, lb. ; under- istanding between i:)olitical load- Paeliambntaky Institutions in Canada — continued. ers, 41 ; federal union, lb. ; con- ference at Charlottetown, 42; at Quebec in 1864 and adoption of 72 resolutions as basis of federal union, lb. ; Canadian represent- atives at Quebec conference, 42 n; legislature of Canada pass address to queen, 42-43; delay in mari- time provinces, 43 ; new constitu- tion finally adopted, lb. ; passage of act of union (B. X. A. Act, 1867) by imperial parliament, 43- 44 ; meeting of first parliament of the dominion, 44 ; acquisition of the North- West, 44-45; in- surrection in Red River, 45-46 ; establishment of province of Manitoba ; meeting of first legis- lature ; representatives take seats in parliament, 46 ; admission of British ColumlDia, 46-47; of Prince Edward Island, 47; Xewfound- land declines to enter confedera- tion, 47-48 ; imperial order in council placing all British North America except Newfoundland under control of Canada, 48. VII. Constitution of the general government and parliament : wide extent of dominion, 48 ; ex- ecutive government, 49 ; office of governor-general, 49-52; appoint- ment of administrator, in his absence, 51 ; may be removed at any time, 51 n. ; his salary, 62 ; advised by a privy council, 52; its appointment and functions, 52-54 ; formation of first ministry of the dominion, 54 ; functions of ministers, 54-55 ; organization of public departments, /'j.; constitu- tion of parliament, 56 ; governor- general opens and prorogues Iiarliament, 57 ; assents to or re-serves bills, lb. ; dissolves par- liament, 57-58 ; general features of the Senate or Upper house, 58, 59 of the house of Commons, 59, 60 duration of i)arliament, 60, 61 control over revenues and duties, 61. 62 ; charges on consolidated fund, Ih. VIII. Constitution of the provin- cial governments: control of general •776 INDEX. Parliamentary Ixstitvtions in Canada — continued. government over provinces, 62; lieutenant-governor appointed and reiuoved ])y governor-general in council, G2; his duties and responsibilities, 03 ; aided by an executive council, Ih.; represents the queen in the performance of certain executive acts, 64 ; con- stitution of local legislature of Ontario, 64-65 ; of Quebec, 65-66; of Nova Scotia, 67-68 ; of New Brunswick, 68-69; of Prince Edward Island, 69-70 ; of Mani- toba, 71 ; of British Columbia, 71- 72 ; government of the North-West Territory, 72-73; creation of pro- visional district of Keewatin ; imperial legislation to remove doubts as to the power of Can- adian parliament to legislate with respect to new provinces in the territories, etc., 74-75 ; local legis- latures may amend local constitu- tions, except as regards othce of lieutenant-governor, 75; disallow- ance of provincial acts, 75-77 ; number of acts disallowed bet- ween 1867 and 1882 inclusive, 77; disallowance of streams' act of Ontario legislature, 78, 80 ; of act of INIanitoba legislature incorpora- ting AVinnipeg South-Eastern Railway Com])aiiy, SO; powers and responsibilities of clominion government in this respect, 80-81. IX. Dhtrihution of h-gbJative powers ; object of the framers of the constitution, 81-82 ; powers of the general government, 82 ; of the provincial governments, lb. ; exclusive powers of legis- latures resi)ecting education, 83 ; concurrent powers of parliament and legislatures on immigration and agriculture, lb.; dithculties as to jurisdiction, 84 ; decisions of supreme court of Canada and privy council of England on questions of jurisdiction ; domi- nion controverted elections act, 85-87 ; insurance, 87-88, 591-594 ; acts respecting temporalities' fund of Presbyterian church, 88-90 ; Ontario act respecting sale of fermented or spirituous liquors. Parliamentary Institutions in* Canada — continued. 90-91 ; fishery leases and licenses, 91-93 ; Canada temperance act, 93-96 ; Ontario liquor license act, 681 et seq. ; rules of construction and interpretation of provisions of B.N. A. act relating to distribu- tion of legislative powers, 96-100. Parliamentary Papers. See Accounts and Paj)ers. Pecuniary penalties and fees ; may be inserted in Senate bills, 664. Petitions ; may be presented, on reading of an order, 254 ; their A'aried character, 259 ; presenta- tion, 260-262 ; rules with respect to, lb. ; no debate allowed on pre- sentation, 261 ; read and received, I}). ; procedure in case of opposi- tion to reception, 262 ; Commons speaker cannot present a petition nor a member one from himself, lb. ; form, 263-264 ; irregularities in the same, 263-266 ; not re- ceived from aliens, 265 : forgeries and frauds punished, 266 ; direct- ly asking for pecuniary aid, not received, 266; indirectly asking for assistance for public works, received, 267 ; practice of Senate ^^•ith res})ect to money peti- tions, 268 ; for the imposition of duties, received, 268 ; for boun- ties to industries, 268-269 ; for compounding or releasing debts due to the Crown, etc., 269 ; read and received on account of ur- gency, 269 ; respecting privilege, 270 ; reflecting on house or mem- bers, lb. ; printing, lb. ; rules of the imperial authorities with res- pect to petitions from colonial dependencies, 271-272. Personal explanations ; when per- mitted, 356. Places of members ; in the Com- mons, 155 ; rules concerning con- duct of members, while in their seats, 342-3- Prayers : by chaplain in the Senate, 248 ; read by speaker in INDEX. Prayers — con tin ued. Commons, 2-49-250. Form of, see App. F. Preamble. See Private Bills. Precedence in debate ; in the Sen- ate, 345 ; in the Commons, 344. Previous question ; its form and meaning, 336 ; how used in Cana- dian liouse, 337 ; in the United States Congress, 337 r?.; cannot be amended, 338 ; nor proposed wlien an amendment is under consideration, lb. ; motion for adjournment regular, lb.; motion for reading orders of day equiva- lent to previous question, lb. ; moved on stages of bills, lb. Printing ; of papers and returns, 280 ; rule of the Senate with res- pect to, lb. ; of the Commons, 290 ; joint committee on printing, its appointment, 427, 428 ; origin, 287-288 ; its functions, 288-289 ; •distribution ollice, 289-90 ; mo- tions for printing papers, 290, 291 ; accounts of, audited and laid before the houses, 239 ; performed by tender and contract, 288 ; de- partmental, 288 n ; queen's i)rin- ter, lb. Private Bills: I. In general : Importance of, 584; number passed since 1867 in Canada, lb.; definition, 585; ({uestions of jurisdiction, 586 ; railway bills, 587, 589 ; boards of trade, 590 ; insurance, 590, 594 ; electric light companies, 595-596 ; for works for the general advan- tage of Canada, etc., 587-588, 595- 59d ; refused because they ali'ect provincial rights, 596, 598 ; wide range of dominion legislation, 598-600 ; foreign corporations seeking powers from dominion, (iOO-OOl ; works on navigable rivers, 601-()02; with respect to companies incorporated by pro- vincial acts, 602, (JOo ; supreme court reports on private ImIIs, 605, 607 ; questions of jurisdiction re- ferred to Senate committees, 607 ; classification of, 607 et seq. ; iiicor- Priv ATE Bills — con tinued. poration of ecclesiastical bodies, 60S ; bills from municipal bodies considered private, 608-609 ; bills from cities treating of matters of public policy, public bills, 609, 610 ; hybricis, 611 ; public acts amended by, 013; bills com- menced as private cannot be pro- ceeded with as public, 014 ; aflect- ing the public revenue, lb. ; general public acts affecting cor- jjorate bodies, 015 ; joint stock companies act, lb. ; banking, insurance, telegraphs, etc., 615, 616 ; all acts deemed public un- less otherwise declared, 617 ; English compared with Canadian procedure, 618, 620; promotion of, 621; ministers should not initiate, lb.; parliamentary agents, 622 ; private bill days in the Commons, lb ; fees and charges, 643 et seq.; passed through all stages at one sitting in cases of urgency, 663. II. Petitions: Rules relative to, 623; presented within ten days after commencement of session, 624; extension of time, 624-625 ; report of standing orders commit- tee extending time, concurred in, 625 ; proceedings in case of no extension, 620; referred ti stand- ing orders committee, 627 ; not based on petitions (in the Senate) 665; (in the Commons) 667. III. Committee on Standing Orders: Appointed, 627; its duties, 627, 629 ; rules re-sjiecting notices for, 627, 629 ; informalities in notices, 629 ; notice dispensed with, 630, 632, 633, 635 ; princi- ples which guide committee witli respect to notice, 035 ; com- mittee's report generally accepted by house, {)30 ; cases of report being overruled, 636-637 ; house alone can suspend rules, on com- mittee's recommendation, 637; case of committee's power to report, lapsing, 638. I \'. Fir.^t and Second R€ading.<> : Bill introduced after favourable report on jKitition, 638 ; rule 51 IIS INDEX. Pkivate Bills— eo;///)(?(«Z. respecting notice suspended, (iSO; rates, tolls, fees, or tines, tilled np by committee on bill, IL; letters laatent or agreement attached to certain bills, lb. ; second reading, 640 ; rarely opposed in house, lb. ; objections generally made in select committee, lb.; principles which guide house on second reading, 641 ; referred to certain select standing committees, 641, 642 ; register kept of all bills, 642; order of reference dis- charged, 642, 643; fees and charges payable after second reading, 644. V. Coimnittccs : Lists hung up in houses, 646 ; no bill considered until after due notice thereof, lb.; rule sometimes suspended, lb. ; power to examine witnesses under oath, 647; questions decided by majority of voices, including chairman who has a casting vote, lb.; petitions for and against a bill, referred, lb. ; rules respecting persons affected by projoosed legislation, 648 ; pro- ceedings, 649 ct seq. ; amend- ments, 651, 654; signed by chair- man, lb. ; i^reamble not proven, 651, 653; every bill must be reported, 653 ; attention of houses directed to sj)ecial provisions, Jb; amendments infringing standing orders, 655; report, 656, 659; no quorum, 658; ordered to meet and proceed with bill, lb. ; time for receiving rej^orts extended, 659; no reference to committee of whole in the Senate, 659-660 ; reference to such committees in the Commons, 660 ; no imjjor- tant amendment made at this stage except after one day's notice, 661 ; bills referred back to standing committees in case of material amendments, 661-662; when amended by the Senate, 668. YI. Third Reading : No amend- ments in Commons except after notice, and then in committee of the whole, 661, 6()2; may be amended (after notice) in Senate, 1'rivate Bills— com /niwc'c?. 662 ; consent of the crown given in certain cases, 662; passage, 663 ; title awarded, 1 b. VII. Divorce BilU; niarriago and divorce within jurisdiction of parliament, ()(i8-669 ; iniblica- tion of notice, 669 ; presentation of petition, lb. ; service of notice 670-673 ; i)roof of service by dec- laration, under 37 Vict. c. 37, required by rule 73, 671 ; ex- emplification of proceedings in court, 673 ; first reading of bill, 673-674 ; cost of printing bill, 674 ; proceedings on second read- ing, 674-675 ; before select com- mittee, 675-677 ; petition from one of the parties for aid in maintaining defence, 677; report of committee, 677-678 ; third reading, and communication to the Commons, 678 ; evidence no longer published in journals, lb.; reference to lords' procedure, 679; in the Commons, 679 ct seq. ; referred after second reading to committee on private bills, 680 ; no longer reserved for her majesty's pleasure thereon, 569, 573, 680. Eates and tolls imposed in the Senate, 664. Amendments made by either house, 668 ; read second time and agreed to, lb. ; disagreed to, etc., lb. ; sometimes referred to select standing committee, lb. Pbivileges and Powers of Parlia- ment : claimed at beginning of new parliament, 186-7, 231 n. ; statutes, relative to, 187-188 ; their nature, 188-189 ; members privileged in their attendance on parliament, 189-191 ; exempt from arrest on civil process, 190 ; need not serve as jurors, or attend as witnesses, 191 ; breaches of privilege — libels and reflections on proceedings of house, or its members, 192-193; publication in ne\vsi:)apers of pro- ceedings of select committees, 193-194 ; the assaulting, threat- ening, or challenging of members, INDEX. 119 Peivileges and Powers of Parlia- ment — coniinned. 194, 37-i ; disobedience to orders of house, 195 ; attempts to bribe, 196; witnesses, counsel, and other persons in attendance on parlia- ment, privileged, 196-197 ; publi- cation of parliamentary pap6rs, 197 ; punishment of a contempt of privilege, lb. ; power of com- mitment, 197-198 ; its duration, 199; procedure in case of a breach, 199-201; power to summon and examine witnesses,202; witnesses should answer questions touch- ing privileges, 204 ; of provincial legislatures, 205 ; decision of the supreme court re Landers rs. Woodworth, 205-207 ; provincial acts defining privileges, 207-209 ; cj[uestions of privilege,their varied character, 316; have precedence over all other questions, 310-319. Privileges and elections, committee of; appointed in the Commons, 428, 430 ; matters referred (con- tractors in i:)arliament) 131 ci seq. ; (eligibility of certain members), 137, 155 ; (double return) 127. Privy Council of Canada; appointed to aid and advise the governor- general, 52 ; origin of name, 52- 53 ; the ministry, 54-56 ; its mem- bers present addresses to his ex- cellencv on behalf of either house, 294, 295', 296, 297, 293; bring down messages, 301. Privy Council, judicial committee of; their decisions on questions of legislative jurisdiction, 85 ct seq., 681 et. seq. Proclamations ; calling parliament together for despatcli of business, 221 ; prorogued l)y, after close of session, 237 ; for dissolution of Parliament, 238, 240. Progress rejwrted ; from committee of the whole house, 418, 420; from connnittees of supply or ways and means, 483. Property qualification ; reriuired for senators, 106 ; declaration res^ioc- Propertj' qualification —continued. ting, Ih ; renewed at beginning of a new parliament, 106-107 ; not required for members of the Commons, 112. Protest ; of senators to a vote, 392 ; may assent to it in whole or in part, lb. ; expunged by order, lb. Public accounts, committee of ; appointed in the Commons, 428, 430 ; not in the Senate, 408. Public Acts ; local and private acts to be deemed, 617. Quarrels between members ; speaker interposes to prevent challenges, 374. Quebec Act of 1774. See Parliavien- tary Institutions of Canada, III Queen, The ; represented by the governor-general, 49 ; addresses to, 293, et seq. See Croivn. Queen's Birthday ; houses adjourn over, 242, Questions : Proposed by the chair, 310 ; how determined, lb. ; Avhen compli- cated, may be divided, 312-313; of privilege, 316 et seq.; amend- ments thereto, 325-333 ; means of Ijostponing or superseding them, by adjournment, 333-335 ; by pro- ceeding to orders, 335-336 ; by previous question, 330 ; same question not to be twice offered in same session, 339 ; evasions of the general rule, 339-340 ; debate thereon, 342 et seq. ; putting Ciues- tion, new rule in English Com- mons, 380 ; voting thereon, 3S4 et seq. Questions put by members ; notice of required, 308, 309 ; in the Senate, 321-322 ; latitude allowed, lb. ; no entry in lords' journals of inquiries, 322 n. ; rules limiting their terms 'n\ Commons, 323 ; place on order paper, lb. ; no argumentative matter allowed, lb. ; clerks may amend notice of ISO INDEX. Questions — continued. irrogular question, lb. ; elionld not refer to matter of opinion, 324; morelatitude allowed to ministers //*. ; not allowable when they afleet character or conduct of members, 325 ; other limitations to putting them, Ih. ; new rule of English Commons Avith respect to motion for adjournment of the house during putting of questions, 381. Quorum ; in the old legislature of Canada, 27 ; in the Senate, 247 : in the Commons, lb. ; question superseded, 335. Eailways, committee of ; appointed in the Senate, 427 ; in the Com- mons, 428, 430 ; bills referred, 642. Eeading room ; in both houses, 183; admission thereto, Ih. ; news- papers filed, lb. Reasons of disagreement ; commu- nicated to either house, in case of bills, 403. Recommendation of the Croim. See Chapter X VII. , sec. 2. Eeflections, on the house or its members ; punished as breach of privilege, 192-193. Eelations between the houses : — Messages by clerks, 397-398 ; attendance of members request- ed, 398-399 ; of officers or ser- vants, 399 ; conferences, 399-402 ; reasons of disagreement com- municated, 463 ; joint committees, lb. ; interchange of documents, 404 ; with respect to tax and money bills, 404-408 ; bills reject- ed by Senate, 409-410 ; no tacks to supply bills justifial)le, 410 ; initiation of measures in upper chamber, 411 ; efibrts in that direction, 412. Eeply ; allowed in debate to mover of substantive question, 353, 354. Eeports ; of debates, 180 ; of com- mittees of the whole, 423 ; of Eeports — continued. select committees, 446 et aeq. ; of committees of supply and ways and means, 489 ; of committees on private bills, (ioS. Reporters. See Hansard. Eeprimand ; by speaker, 154, 369 ; entered on the journals, lb. Eesolutions ; proposed in commit- tee, 416, 419 ; rescinded, 340 ; reported from committee of the whole, 423 ; in committee of supply or ways and means, 482- 489 ; reported from those com- mittees, 489 ; procedure on sec- ond reading and concurrence, 490 ; bills ordered upon, 495 ; duration of, 217. Eeturn book ; of election of mem- bers, at opening of a new parlia- ment, 141. Eevival of a bill or question ; on superseding of order for second reading of a bill, 530 ; for com- mittee of the whole or other stage, 421 ; in case of no c[uorum, 335 ; of committee of supply, 481. Eiel, Louis ; expelled, 151, 318. Roycd Asfient to Bills. See Chapter XVIII, sec. 25. Eules, orders and usages ; their origin, 210 ; in the Senate, 212 ; in the Commons, lb. ; revision of, 21.3-214 ; necessity for strict ad- herence to, 214-215 ; only sus- pended by unanimous consent or after notice, 215 ; sessional orders and resolutions, 216-217. Eupert's Land ; acquired by the dominion, 44 et saj. Resignation of Members. See Chap. II., sec. 9. ' Sadlbie, James ; expelled, 151, n. Saturday ; house does not generally meet on, 241 ; committees maj' meet, 444 ; house sometimes sits on, at close of session, 241. INDEX. Y81 Seal. ' See Great Seal- Second Reading; of bills, 528, 640; of resolutions, 423- Schedules to Bills ; 511 ; when con- sidered in committee of the whole, 542. Seigniorial Tenure ; established, 4-5; abolished, 33. Senate: Its constitution, 58-59; present organization, 105 ; quali- tications of senators, lOG, 108 ; renewal of declaration of property qualification, 106-107; addition to number, 107 ; vacancies, 108 ; reporting of same, ib. ; questions of qualitication and vacancies, how determined, ih. ; introduc- tion of new senators, 109 ; mem- bers must not l>e interested in certain contracts, 134, 135-136; attendance, 145-146 ; indemnity, 146 ; i)laces, 155 ; speaker, how appointed, 158 ; his functions, 158; clerk, 158-159; clerk assist- ant, 159-160 ; gentleman usher of the black rod, 160; serjeant- at-arms, iJ). ; chaplain, ih. ; com- mittee of contingencies, KJO-KJl ; accounts, ih. ; audited, 509 ; minutes of proceedings, 161 ; journal, 162; admission to gal- leries, 162, 172 ; official reports, 181 ; privileges, immunities and powers, 187 et seq. ; rules, orders and usages, 210-211 ; revision of same, 213 ; use of the French language, 217-219; proceedings at opening of parliament, 221- 223 ; after an appointment of new speaker, 222, 223 ; the mace, 222 ; jjroceedings on election of Commons' Speaker, 225-226 ; consideration of speech, 223-224, 235-236; prorogation, 236-237; days and hours of meeting, 241; adjournment over holidays, 241- 242 ; long adjournments, 242 ; decease of memlters, 243; ad- journment during pleasure, 246 ; (]Uorum, 247 : prayers, 248 ; order of business, 250, 252; urgency given to government measures, 258 r?. ; presentation of petitions, 260-2()l; forni of same, 263; money petitions, 268 ; reflections Senate — continued. on house, 270 ; orders and ad- dresses for papers, 274, 278 ; pa- pers refused, 281 n. : jjrinting, 286-287; addresses to queen or governor-general, 292, 293, 294 ; joint addresses, 294-295 ; of con- gratulation, 296 ; on retirement of governor-general, 297-299 ; messages from governor-general 301, 302 n. ; respecting jjccuniary aid, 304 ; notices of motion, 307- 308; questions of i^rivilege, 316; questions put by members, 321- 323 ; amendments, 325 et serj. ; deportment of senators whilst speaking or in their places, 342- 343 ; their precedence in debate, 345 ; rules limiting debate, 35o- 354 ; manner of addressing other senators, 361 ; rules for the pre- servation of order, 363-364; words taken down, 363, 374 n. ; taking a division, 384 et seq. ; senators having a direct interest in a question do not vote thereon, 395-396 ; messages to house by clerks, 397-398 ; requesting at- tendance of a member of Com- mons as witness, 398 ; leave given to senators or officers to attend committees of the Commons, 399; conference with Commons, 399 et seq. ; joint committee on lib- rary and printing, 403 ; puts com- mittee of its own in communica- tion with one of the Commons, ib.; interchange of documents with other house, 404 ; questions of expenditure and taxation, 406-408 ; Commons l^ills rejected, 409-410 ; rule respecting tacks to money or other bills, 410, 500 ; initiation of measures therein, 411-412; committee of the whole, 415, 416, 421, 541 ; select and .ses- sional committees, 427 et seq.; on private bills, 620 ; refer jjrivate bills to su])reme court to consider questions of jurisdiction, 605; to select committees, ()07; may im- pose rates and tolls in private bills, 664; its proceedings with respect to divorce bills, 668-679. - See Clerk, I'arliament. Serjeant-at-arms ; appointed in the Senate bv committee of contin- Y82 INDEX. Serjeant-at-arms — continued. gencies ; carries the mace, 160 ; appointed by commission under the great seal for the Commons, 175 ; his duties, in the Commons, 175-176 ; maintains order in gal- leries and lobbies, 176 ; takes in- to custody persons guilty of mis- conduct, 177 ; summons persons ordered to attend house, 200,202 ; or may take them into custody on speaker's warrant, :.00, n., 203 ; attends the speaker with the mace, 228. Session ; question, once decided, not again offered in same session, 339 ; private bills taken up and rapidly proceeded w-ith in a sub- sequent session, 239. Sessional orders ; their effect, 216. Shorthand writers ; before com- mittees, how paid, 441. Simultaneous polling at a general election, 112. Sittings. See Commons, House of. Speaker : I. Of the Senate : Appointed by commission under the great seal 157 ; his duties, 158 ; proceedings in case of absence, 157 ; salary, 147 ; new appointment, 222, 223 ; reports his excellency's speech, 223 ; commands usher of the black rod to proceed to Commons chamber, 222, 236 ; informs Com- mons that causes of summoning parliament will not be announced ■until a speaker is elected, 226 ; acknowledges Commons' privi- leges on behalf of his excellency, 229 ; his duties at prorogation, 236-237 ; may address the house; explains points of orders, when called upon, 158 ; Senate adjourns on announcement of death of a former speaker, 243 ; his duties in absence of quorum, 247 ; may present a petition, 262 ; decision of a speaker as to money peti- tion, 268 ?)., signs addresses to the queen or her representative, 295 ; votes on questions, 390-391. Si'E A K ER — co'i din ucd. II. Of the House of Commons : Reports of judges respecting con- troverted elections made to him by law, 120, 121 ; orders issue of writs for elections, 124 ; informs the house of the issue of war- rants, 124 ; issues warrant on resignation of members, 138 ; on acceptance of office, or on vacancy by death, lb. ; 139 ; new mem- bers, on introduction, pay their respects to him, 142-143 ; his salary, 147 ; admonishes or re- primands members, 153 ; provi- sions of B. X. A. act resjjecting election, 162-164 ; provision for his temporary absence from chair 164 ; Serjeant with mace precedes him, on his entering or leaving house, 165-166 ; his duties, 166- 168 ; takes no part in debate whilst in the chair, 168 ; but may speak in committee of the whole, 168 ; only votes in cases of equal- ity of votes, 168 ; signs votes and proceedings, 170 ; his right of ap- l^ointing certain officers and ser- vants ; his control over the same, 171, 172-173 ; informs house of changes at the table, 173 ; may suspend or dismiss employees, 174, 193 ; appoints accountant, 174, 184 ; may order withdrawal of strangers, 177 ; acts as chair- man of board of commissioners of internal economy, 183 ; claims privileges at opening of new par- liament, 186 ; is examined in the chair, in cases of inquiry by the house, 202 ; his duty on examina- tion of witnesses at the bar, 202- 203 ; is chairman of committee for revision of rules, 213 ; calls attention to certain quasi stand- ing orders, 217 ; reads motions in the two languages, when pos- sible, 218 ; elected at commence- ment of new parliament, 224- 228 ; proceedings after his elec- tion, 228 ; reads pravers, 229, 235, 249, 250 ; proceeds to the Senate chamber, 229 ; his duty on returning, 231 ; at a prorogation, 236-237 ; leaves the chair at six o'clock, p.m. ; resumes at half past seven, 246 ; his duty in absence of a quorum, INDEX. 783 Speaker — continued. 247-248 ; at opening of sitting, 250-251 ; calls questions, 253, 323 ; orders of the day, 253 ; calls for presentation of petitions, 260 ; puts question for their reception, 261-262 ; cannot present a peti- tion, 262 ; lays certain papers before houses, 275 ; does not put motions for printing, 290 ; an- nounces and reads messages from governor-general, 301,344; com- municates replies of eminent per- sons to thanks of parliament, 306 ; proposes a question to the house, 310 ; states motions and amendments, in their order, 327- 328 ; addressed iDy members, 343- 344 ; gives precedence to mem- ber who first catches his eye, 343-344 ; his duty when two or more members rise, Ih. ; will not permit written speeches, 345 ; or allow reading of documents re- flecting or commenting on de- bates, 346 ; keeps members to question under debate, 349-350 ; calls members to order for in- fringing privilege of making per- sonal explanations, 350 ; leaves chair on reception of message from governor-general, even in midst of a debate, 358 ; will not permit unparliamentary lan- guage, 364 et seq. ; names a mem- ber for breach of parliamentary decorum, 368-369 ; reprimands, 154, 369 ; orders that words be taken down, 370-373 ; his course on his attention being called to danger of hostile meeting be- tween members, 374 ; orders members to withdraw, 376 ; inter- feres to prevent personal allusions to judiciary, 377-378 ; his increa- sed powers in English Commons under new standing orders, 378 et secj. ; votes in case of equality of votes, 391 ; resumes chair, to decide question, 418 ; and when- ever necessary, 422 ; presents tlie supply bill, 501. Speech ; of his excellency the gov- ernor-general, at opening of ses- sion, 231 ; at close, 237 ; address in answer (in tlie Senate), 223 ; (in the Commons), 231 et seq. Statutes ; distribution of, 583. Strangers, admission of; to galleries of houses, 176. Streams' Act of Ontario ; disallow- ed, 78-80. Subpoenas ; members need not obey during session, 191. Summons of Parliament ; by the Crown, 220; causes of, declared by governor-general, 226. Sunday ; meetings of English Par- liament on, 245 ; Canadian Com- mons sit on one occasion over Saturday, 246. SvppLY AND Ways axd Mbaxs . I. Grants of public money ; prac - tice relative thereto, 463 ; sec. 54 of B. X. A. Act, requiring recom- mendation of governor-general, 463-465 ; previous committee ne- cessary, 465-468 ; abstract resolu- tions, 468-469 ; reference of matters, which may involve expenditure, to select committees, 470 ; mode of signifying I'ecom- mendation of governor-general, 470-471 ; ditiereut from consent of the Crown, 472-474. II. Committee of Supply : Esti- mates, 474 ; referred, lb. ; pro- cedure on going into, 476 ; amendments on motion that speaker leave chair, 477-480 ; lapsed order, 481 ; in committee, 481 et seq. ; cannot receive grant without recommendation of the Crown, 484. III. Committee of Ways and Ifeans : Budget speech, 484-486 ; impos'tion of duties, 486; pro- ceedings therein, 489. IV. Reports: resolutions not re- ported on same day as agreed to in committee, 489 ; reception of, 490; amendments and debate, 490-491 ; postponed, 492; referred hack, lb.; grants not increased at this stage, 492-494 ; nor duties, 494 ; every new duty voted in committee, 1 b. ; eflfect given im. 784 INDEX. Supply and continued. Ways and Means- mediately to resolutions of cus- toms and excise, 495. V. Bilh : tax bills, 495-496 ; approi^riatiou or supply bill, 49G it fterj. ; in the Senate, 500-503 ; royal assent, 503. VI. In General: Address to the Cro^vn for an expenditure at close of session, 504 ; customary in case of public funerals to deceas- ed statesmen, ib. ; cannot be moved by private member, 505 ; audit of appropriation accounts, 505, et seq. Supreme Court of Canada, ciary. See Judi- Supreme or Superior Council ; es- tablished in French Canada, 3. Suspension of members ; when ex- ercised, 154, 202 ; new standing order of the English Commons, 382. Suspension of rules ; in the Senate, 215 ; in the Commons, ib. Suspension of sitting houses, 246. in the two Sydenham, Lord ; governor-gen- eral, 26 «., 28 ; his opinion as to a municipal system, 31 ; his death, 575. Table of the House ; mace lies on, whilst house is sitting, 228 ; peti- tions laid thereon, 259, 260, 261, 269, 270. Tacks to Money Bills; resolution of the upper house relative to, 410; remarks of Mr. Speaker Brand on the subject, 500. Tampering with a witness in at- tendance; a breach of privilege, 195. Tasse, Elie ; dismissed from service of the house, for breach of privi- lege, 193. Tax Bills ; originate in committee of the Commons, 500 ; Senate not to amend, 407, 501—502, 514. Temperance Act, Canada, of 1878 ; judicial decisions resj^ecting, 93 —96; GSl. Temporalities fund ; decision of im- l^erial privy council respecting constitutionalitv of provincial legislation, 89—90. Thanks of Parliament; given to distinguished individuals, for signal services, 306; letters in reply communicated to the houses, Ib. Titles of bills ; amended generally on passage, 551, 663; sometimes by committee of the whole, and reported, 542 ; by select commit- tees on private bills, 656. Todd, Alpheus; his constitutional works, 181 n. ; his opinions on certain cj[uestions, 294 n. Tolls and charges ; in private bills, 639; may be imposed by the Senate, 664. Trade, bills relating to. See Chapter XVIII. on Public Bills, sec. 4. Treaty of Paris ; signed, 6. Trevor, Sir John; expelled from Parliament, 166, 196 n. Union Act, 1840. See Parliamentary Institutions in Canada, V. United States, congress of; form of previous question therein, 337 n. Unopposed motions ; agreed to, without notice, by general assent, 315. Usher of the Black Rod ; appointed to the Senate by commission under the great seal ; his duties, 160; at opening of parliament, 225, 229 ; at a prorogation, 236. Yacaxcies in seats ; by death, 139 ; resignation, 138; accei^tance of INDEX. 7»o Vacancies in seats — continued. office, 139 ; judge's report in elec- tion cases, 120, 123. A'ancouver Islaml ; annexed to British Columbia, 71. Veto ; of lieutenant-governors to bills, 579-581. Votes and Proceedings ; to be prin- ted, first perused by speaker, 178 ; their form, lb. ; motions rescind- ed, Ih. ; notices given therein of motions, 307, 309 ; of bills, 309 ; petitions printed therein, 270. Voting. See Divisions. "Wales, Prince of; addresses to, by the legislature of Canada, 304 ; on his recovery from illness, 296 n. Warrant for new AVrit ; issued by the speaker, in case of death, 138 ; resignation, 138 ; acceptance of office, ib. ; by clerk, 120 a.; by two members, when there is no speaker, ib- ; form of, see ajip. I. AVays and Means, committee of; See Chapter XVIL, Sec. 8. AVeldon, Mr.; his opinion on a question of jurisdiction, 604. Wilkes, .John ; his case compared with that of Mr. W. Lyon 3Iac- kenzie, when exi^elled, 152. Wilmot, Mr. Speaker ; held seat in cabinet, 55 n. ; takes part in de- bates, 158 n. ; appointed lieut.- governor, ib. Winnipeg South-Eastern Railwa^• bill ; disallowed, 80. Witnesses ; privileged in attend- ance on parliament, 196 ; tam- pered witli, a breach of privilege, 195 ; summoned to attend Senate, 202 ; Commons, Ib. ; answer questions, 202-204 ; sworn at the bar of the Senate, 460 ; before select committees of both houses, lb. ; before private bill com- mittees, 458, 460 ; expenses, how paid, 457-458. Woodworth, Mr. ; supreme court decides he had been improperly removed from house of assembly of Nova Scotia for contempt, 205-207. Words ; taken down, 370 et seq. Writs for Elections. See Elections. Yeas and Nays. 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