First Session of the Parliament

2. That the established laws of the land cannot be superseded by a Resolution of either House alone, and that the House of Commons by ordering a report to be printed cannot legalize the publication of libellous matter.

In consequence of this ruling the Imperial Parliament legalized by an Act (3 & 4 Vict. c. 9) all publications ordered to be printed by either House.-Broom (Cons. Law, p. 893) says:

However flagrant the contempt, the House of Commons can only commit till the close of the existing Session (Stockdale v. Hansard, 9 Ad. & El., p. 1). Their privilege to commit is not better known, than this limitation of it, and, though the party should deserve the severest penalties, yet, his offence being committed the day before a prorogation, if the House ordered his imprisonment but for a week, every Court in Westminster Hall, and every judge of all the Courts, would be bound to discharge him on Habeas Corpus.

In Burdett v. Abbott, 14 East 158, (affirmed in the House of Lords,) where the action was for false imprisonment, it was held that the House of Commons being a competent adjudicating Court to commit for contempts, the adjudication could not be inquired into by another Court. Lord Ellenborough, in delivering judgment, said :-The power of the House of Commons to commit for contempt, stands upon the ground of reason and necessity independent of any positive authorities on the subject. It is also made out by the evidence of usage and practice, by legislative sanction and recognition, and by the judgment of the Courts of Law in a long course of well established precedents and authorities. (Affirmed, 5 Dow, 199.)

It also appears by the following authorities that even the Judiciary, in the administration of justice, can only punish for contempts in accordance with the established procedure in the case of criminal offences. In re Pollard (L. R., 2 P.C., 106),—one of Her Majesty's Counsel at the Colony of Hong Kong, whose case was, on petition, referred by the Crown to the Judicial Committee--it was held by their Lordships that no person should be punished for contempt of Court-which is a criminal offence-unless the specific offence charged against him be distinctly stated, and an opportunity given to him of answering it before passing sentence.

Similar rulings in Rainy v. The Justice of Sierra Leone (8 Moore's P. C., 47) and in re Thomas K. Ramsay (7 Moore's P. C., N, S., 273). See Sect. 70, opinion of Sir John A. Macdonald as to the effect of omission of any provision similar to Sect. 18 for Provincial Legislatures.

19. The Parliament of CANADA shall be called together

of Canada. not later than Six Months after the Union.

of the

Canada.

20. There shall be a Session of the Parliament of CANADA Yearly Session once at least in every Year, so that Twelve Months shall Parliament of not intervene between the last Sitting of the Parliament in one Session and its first Sitting in the next Session.

The Senate.

21. The Senate shall, subject to the Provisions of this Act, consist of Seventy-two members, who shall be styled Senators.

Section 147 provides for the admission of Newfoundland and Prince Edward Island into the Union with four members in the Senate for each, and in that case reducing the representation of Nova Scotia and New Brunswick to 10 Senators respectively, and making the normal number 76, with the possibility of an increase to 82, under section 26.

Manitoba was admitted, in 1870, with 2 Senators, and British Columbia was admitted in 1871, with 3 Senators, the total number of Senators being now

77.

Number

of Senators.

22. In relation to the constitution of the Senate, CANADA Representation shall be deemed to consist of Three Divisions:

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 represented in the Senate as follows: Ontario by Twenty-four Senators; Quebec by Twenty-four Senators; and the Maritime Provinces by Twenty-four Senators, Twelve thereof representing Nova Scotia, and Twelve thereof representing New Brunswick.

In the case of Quebec each of the Twenty-four Senators 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 the Consolidated Statutes of Canada.

It will be remarked that, except in the Province of Quebec, the Senators represent no particular localities in their Provinces. But electoral divisions are determined, for each Senator in the Province of Quebec, and the consequences of that distinction, which cannot be otherwise than detrimental, are developed in sub sec. 6 of the following section:

of Provinces in Senate.

Qualifications of Senator.

23. The qualifications of a Senator shall be as follows: (1.) He shall be of the full Age of Thirty years:

(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 freehold for his own use and benefit of Lands or Tenements held in Free and Common Soccage or seized or possessed for his own use and benefit of Lands or Tenements held in Francalleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same:

(4.) His Real and Personal property shall be together worth Four thousand dollars over and above his Debts and Liabilities:

(5.) He shall be resident in the Province for which he is appointed :

(6.) In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.

[See Sections 11, 61 and 128 as to following requirements.]

THE FIFTH SCHEDULE.

OATH OF ALLEGIANCE.

I, A. B., do swear, that I will be faithful and bear true allegiance to Her Majesty Queen Victoria.

NOTE.-The name of the King or Queen of the United Kingdom of Great Britain and Ireland, for the time being, is to be substituted from time to time, with proper terms of reference thereto.

DECLARATION OF QUALIFICATION.

I, A. B., do declare and testify, that I am by law duly qualified to be appointed a member of the Senate of Canada [or as the case may be], and that I am legally or equitably seized as of freehold for my own use and benefit of lands or tenements held in free and

common socage [or seized or possessed for my own use and benefit of lands or tenements held in franc-alleu or in roture (as the case may be,] in the Province of Nova Scotia [or as the case may be] of the value of four thousand dollars over and above all rents, dues, debts, mortgages, charges, and incumbrances, due or payable out of or charged on or affecting the same, and that I have not collusively or colourably obtained a title to or become possessed of the said lands and tenements, or any part thereof, for the purpose of enabling me to become a member of the Senate of Canada (or as the case may be), and that my real and personal property are together worth four thousand dollars over and above my debts and liabilities.

s.s. 1. The age of 30, for Senators, was that required for elective Legislative Councillors in the Province of Canada, at the time of the Union.

s.s. 2. This mode of making British subjects of aliens, ignores a more easy process, by Courts of law provided for in every Province of the Dominion. Owing to the impossibility of surmounting such obstacles persons eminently competent for the position will, in all probability, be kept out of the Senate, awaiting an act of Parliament to qualify them; when for any other position or office in the gift of the Government, they would find no such requirement interposed as a condition of fitness.

The same reasons which require a property qualification for electors has been assigned for requiring a property qualification for those elected to office. Blackstone says (vol 1, p. 171. Com.):

The true reason of requiring any qualification with regard to property in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes they would be tempted to dispose of them under some undue influence or other.

The soundness of the reasoning of Blackstone has been challenged by practical legislation, with apparent success, in several countries. Universal suffrage exists in most of the United States, in France, in Switzerland and in other countries.

As regards those elected, no real or personal property qualification is required in England of the members of the House of Commons. In a despatch from the Duke of Newcastle to the Governor General of Canada, some years before the Union, the Duke urged the propriety of removing any property qualification as regards the candidates for election, and preserving it for the elector, and also writing to the Governor of P. E. I. in 1862 the noble Duke suggested the adoption of the same policy for the constitution of the Upper House of that Island. The basis in Canada of the qualifications of the members of a Senate, not nomi. nated by the people, could not be other than a property qualification. But the limited amount required ($4,000) and the dubious character given to the property by s.s 3, and s.s 4, shows how perplexed were the framers of the constitution, when adopting even that low figure.

In every other part of the Dominion except the Province of Quebec, it is a matter of indifference where the possible Senator resides, provided it be in

the Province for which he is appointed, (s.s 5) and where his property is situated. In Quebec the Senator must either have his property qualification in the electoral division for which he is appointed, or he must be a resident in that division. There would be some reasonable ground for this distinction if, on account of a peculiar training, the class of men from whom Senators may be chosen, were more numerous in Quebec than anywhere else. Unfortunately the contrary state of things prevails. There are not to be found, in the Province of Quebec, the numerous interior cities and towns, which exist in Ontario, and perhaps in other provinces, where, manufacturing or commercial pursuits and municipal institutions are developing that extended amount of practical knowledge, which is necessary to fit men for public and parliamentary life. The result may not at once be produced of an inferior class of Senators representing the Province of Quebec, but it is inevitable in the future, because, instead of the wide field of selection offerred in other provinces, the senators from Quebec will have to be taken out of a very restricted class of candidates.

In the Debates on Confederation in the Prov. Parl. of Canada (p.89), Mr. George Brown said:—

It is objected that in the constitution of the Upper House, so far as Lower Canada is concerned, the existing electoral divisions are to be maintained, while, as regards Upper Canada, they are to be abolished; that the members from Lower Canada are to sit as representing the divisions in which they reside or have their property qualification, while in Upper Canada there is no such arrangement.

Undoubtedly this is the fact; it has been so arranged to suit the peculiar position of this section of the province. Our Lower Canada friends felt that they had French Canadian interests and British interests to be protected, and they conceived that the existing system of electoral divisions would give protection to these separate interests. We, in Upper Canada, on the other hand, were quite content that they should settle that among themselves, and maintain their existing division if they chose. But, so far as we in the west were concerned, we had no such separate interests to protect, we had no diversities of origin or language to reconcile, and we felt that the true interest of Upper Canada, was, that her very best men should be sent to the Legislative Council, wherever they might happen to reside, or wherever their property was located. If there is one evil in the American system which in my mind stands out pre-eminently as its greatest defect, except universal suffrage, it is, that under their constitution the representatives of the people must reside in the constituencies for which they sit. The result is, that a public man, no matter what his talent or what his position, no matter how necessary it may be for the interest of the country that he should be in public life, unless he happens to belong