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years for life-tenure is a matter of course it is necessary, both to secure a rotation of elections, and as a practical ordinance of superannuation. If the present Senators are allowed to retain their seats, the change will be gentle, and all fear of revolution, if anybody is so nervous as to entertain it, will be removed.-" Bystander," Toronto,May, 1880, p. 64.

of Houses.

18. The Privileges, Immunities, and Powers to be held, Privileges, &c., 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 exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.

The Parliament of Canada acting in the execution of the powers conferred by this Section (18) passed an Act (31 Vict. c. 23) defining their privileges.

By this Act, their Privileges, Immunities and Powers were defined "to be the same as at the time of the passing of said recited (B. N. A. Act, 1867) Act were held, enjoyed and exercised by the Commons House of Parliament, &c."

By an Imperial Act (28 & 29 Vict. c. 63) passed 29th June, 1865, "to remove doubts as to the validity of Colonial Laws," it was enacted that "every Representative Legislature shall, in respect to the Colony under its jurisdiction, have, and be deemed at all times to have had, full power to make Laws respecting the constitution, powers and procedure of such Legislature; provided that, such Laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law, for the time being in force in the said Colony."

any thing done The new section

By Imperial Act 38 & 39 Vict. c. 38 (see 39 Vict. Can. p. iv.), -entitled, An Act to remove certain doubts with respect to the powers of the Parliament of Canada, under Section 18 of the B. N. A. Act, 1867-that section was repealed without prejudice to thereunder and a new section substituted in its place. differs from the repealed section by the leaving out the words in italics, “the same shall never exceed those at the passing of this," and the substitution, in their place, of the words, "any Act of the Parliament of Canada defining such Privileges, Immunities and Powers shall not confer any Privileges, Immunities or Powers exceeding those at the passing of such.”

It did not clearly appear in the suppressed clause whether the word "this" referred to the Imperial Act of Confederation enacting the suppressed clause, or to the Dominion Act defining the Privileges, &c., of the Houses of the Dominion Parliament.

The text of the Amending Act is as follows:

38-39 Victoria, Chap. 38.

AN ACT

TO REMOVE CERTAIN DOUBTS WITH RESPECT TO THE POWERS OF
THE PARLIAMENT OF CANADA UNDER SECTION EIGHTEEN
OF THE BRITISH NORTH AMERICA ACT, 1867.

[19th July, 1875.]

30 & 31 Vict. c. 8

Substitution of
New Section for

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HEREAS by Section Eighteen of The British North
America Act, 1867, it is provided as follows:

"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 Parlia"ment of Canada, but so that the same shall never exceed "those at the passing of this Act held, enjoyed, and exercised "by the Commons House of Parliament of the United King"dom of Great Britain and Ireland and by the Members "thereof: "

And whereas doubts have arisen with regard to the power of defining by an Act of the Parliament of Canada, in Pursuance of the said section, the said Privileges, Powers, or Immunities; and it is expedient to remove such doubts :

Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

-

1. Section Eighteen of the British North America Act, Section 18 of 30 1867, is hereby repealed, without prejudice to anything & 31 Vict. c. 3. done under that section, and the following section shall be substituted for the section so repealed.

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 any Act of the Parliament of Canada defining such Privileges, Immunities and Powers shall not confer any Privileges, Immunities or Powers exceeding those at the passing of such Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof.

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Confirmation ment of Canada,

01 Act of Parlia

31 & 32 Vict. c.

2. The Act of the Parliament of Canada passed in the thirty-first year of the Reign of Her present Majesty, chapter twenty-four, intituled "An Act to provide for oaths to wit-24. nesses being administered in certain cases for the purposes of either House of Parliament," shall be deemed to be valid, and to have been valid as from the date at which the royal assent was given thereto by the Governor-General of the Dominion of Canada.

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3. This Act may be cited as "The Parliament of Canada Act, 1875."

No action has been taken by the Dominion Parliament in pursuance of the power conferred by this new section.

The corresponding section in the Constitutional Act of Victoria has received the Judicial construction of their Lordships of the Privy Council, in Dill v. Murphy, (1 Moore's P.C., N.S., 487). By section 35 of the Constitution Act of the Colony of Victoria (18 & 19 Vict. c. 55) the Legislature were authorized in language similar to section 18 of the B. N. A. Act "by any Act or Acts to define the Privileges, Immunities, and Powers, to be held enjoyed and excrcised by the Council and Assembly, and by the members thereof respectively: Provided, that no such privileges, immunities or powers shall exceed those now (i.e. at the passing of the Constitution Act) held and enjoyed by the Commons House of Parliament or the members thereof." And in pursuance of that power enacted that their Privileges, Immunities and Powers should be the same as at the passing of the Constitution Act were held, exercised and enjoyed by the Commons House of Parliament, &c. It was held by their Lordships, that this enactment had properly defined those privileges and sufficiently exercised the power delegated to the Local

Short Title.

Legislature, and that the privilege of arrest for contempt was rightly exercised under that Act. Also in

The Speaker of the Legislative Assembly of Victoria v. Glass (L. R. 3 P. C., 564.) It was held by their Lordships, as to matters connected with contempt, under Section 35 of the Constitutional Act of the Colony of Victoria and the Colonial Act defining the powers of the Legislature; that the Privileges and Powers of the Imperial House of Commons at the time of the passing of the Constitutional Act were carried over to the Legislative Assembly of the Colony, including the privilege of judging what is contempt, and the power of committing for contempt by a warrant stating generally that a contempt had taken place without setting forth the specific grounds of such commitment.

In Kielley v. Carson et al. (4 Moore P. C. 75) it was held that a Colonial House of Assembly (of the Island of Newfoundland) does not possess the power of arrest with the view to adjudication upon a complaint of contempt, as an incident to its functions; and that it has not the same exclusive privileges which the ancient Law of England has annexed to the Imperial House of Parliament; and that such power must be expressly given by the Imperial Statute creating the Colonial Legislature.

Mr. Baron Parke, in delivering the Judgment remarked: "It is said, however, that this power belongs to the House of Commons in England, and this, it is contended, affords an authority for holding that it belongs as a legal incident, by the Common Law, to an Assembly with analogous functions. But the reason why the House of Commons has this power is not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription, the lex et consuetudo Parliamenti which forms a part of the Common Law of the land, and according to which the High Court of Parliament before its division, and the Houses of Lords and Commons since, are invested with many peculiar privileges, that of punishment for contempt being one. And, besides, this argument from analogy would prove too much, since it would be equally available in favor of the assumption, by the Council of the Island, of the power of commitment (exercised by the House of Lords), as well as in support of the right of impeachment by the Assembly, a claim for which there is not any color of foundation.

Nor can the power be said to be incident to the Legislative Assembly by analogy to the English Courts of Record which possess it. This Assembly is no Court of Record, nor has it any judicial functions

whatever; and it is to be remarked that all those bodies which possess the power of adjudication upon and punishing in a summary manner, contempts of their authority, have judicial functions; and exercise this power as incident to those functions which they possess, except only the House of Commons, whose authority in this respect rests upon ancient usage.

The case of Beaumont v. Barrett (1 Moore's P. C. 59) was overruled by this decision, and this decision was followed in Fenton v. Hampton (11 Moore's P. C. 347).

In Doyle (Speaker of the House of Assembly of Dominica) & Falconer (L. R., 1 P. C. 328)., their Lordships held, following the case of Kielly & Carson, that the Legislative Assemblies in the British Colonies, in the absence of express grant, have no power to punish for contempts committed in their presence or beyond their walls, for the reason that this is the exercise of a judicial power. Sir James W. Colville, who delivered the judgment of their Lordships, said:-It must be conceded that the Common Law sanctions the exercise of the prerogative by which the Assembly has been created, and that the principle of the Common Law, which is embodied in the maxim "Quando lex aliquid concedit, concedere videtur et illud, sine quo res ipsa, esse non potest" applies to the body so created. But it is necessary to distinguish between a power to punish for a contempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a member of a Colonial House of Assembly is guilty of disorderly conduct in the House whilst sitting, he may be removed, or excluded for a time, or even expelled.

In Landers v. Woodworth (2 Can. S. C., 158) it was held, on appeal, affirming the Judgment of the Supreme Court of Nova Scotia, that the Legislative Assembly of the Province of Nova Scotia, in the absence of express grant, has no power to remove one of its members for contempt unless he is actually obstructing the business of the House, following in this respect the ruling of their Lordships of the Privy Council in the cases above cited.

In Stockdale v. Hansard, (9 Ad. & El., p. 1); Held—

1. That a Court of Law is competent to determine whether or not the House of Commons has such privileges, as will support a defence to an action against a publisher for libel.

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