‘ Q- 1:5 -in^l 11 Vic. c. 4. Civil Code, Arts. 1114-1110.

Jurisdic-
tion.

Court of
Review.

Ci)\trt of
] ‘ice-
Admiral,

Court of

Queen’s

Jhncli.

Jurisdic-
tiou.

• I ;

i ‘f

f

t I

T

^

92

Tiir; I’KuviNriAi. .iriiU’A’i’ruK.

‘I

<' Appeals from Circuit CourtH. Division Court. (h) against any other final jndgniL'nt fxccj)t in casus of certiurari, or mattcns ati'ecting nmnicipal corporations or offices, or where the amount in ([ue.stion does not 'exceed $200 and the judgment has been confirmed in review before three judges ; (c) against interlocutory judgments 'n certain cases. An appeal lies from a Circuit Court (a) where the sum or value of the thing demanded amounts to !|1()U, except in suits for the recovery of assess- ments for schools or schoolhouses, or for monthly contri- butions for schools or for the recovery of assessments imposed for the building or repairing of churches, parsonages, and churchyards. If the evidence has not been taken down in writing the appeal can be only on points of law ; (/>) whei’e the demand is less than !?10() but relates
to fees of office, duties, rents, revenues or sums payable to
Her ^laje.sty, or to titles to lands or tenements, annual rents
or other matters in which the rights in future of the parties
may be affected ;

(c) in all actions in recognition of hypothec.
Special measures regulate appeals from judgments given
in the Magdalen Islands *.

Ontario.

The Division Courts. In each county there are Courts
called Division Courts, not less than three nor more than
twelve in number, presided over by the junior County
Court Judge.

Each Judicial District is divided into Court Divisions,
and once in two months a Court is held in each Division “.

Causes arc heard before the Judge alone, but in actions
of tort whore the amount sought to be recovered exceeds

1 Civil Code, Art. 1133.

– 0. R. S. 1887, c, 51.

ONTAUIO.

93

lis
Is

!^I0, niid ill all otlicr ai’lioiis wlicii such iiiiii>mif exceeds
^20, either party inuy demaiKl a jury.

The jurisdiction extends to, Jmisdit-

(d) all personal actions where the amount claimed
docs not exceed $00 ;

(b) all claims of debt, br ^ach of contract or money
demand where the balance claimed does not exceed $100;

(o) all claims of debt or money demand where the
balance claimed is under 1^200 and the (Miq-inal amount is
a.scertaiin’d by siifiiaiure of the defendant.

The jurisdiction does not however extend to actions for
gambling debts, li(|Uor sold in a tavern, ejectment, toll, custom,
or franchise, title to land, malicious i)rosecution, libel, slander,
breach of promise, or against Justices of the Peace or relating
to the validity (»f wills and .settlements.

An appeal is allowed to the Court of Appeal where the Apppul.
amount in dispute exceeds $100.

A County Court is held in every county and is pi-esi(U’d Conntii
over by a judg(> who acts as a Local Judge of the High
Court in all matters assigned to him by Statute oi- by the
Rules of Court.

The jurisdiction of the County Court extends to,

1. all personal actions where the debt or damage
claimed does not exceed $200.

2. all causes relating to debt, covenant, and contract
up to $400 where the amount is li(pii(late(l or ascertained by
the act of the parties or by the signature of the defendant.

3. proceedings on bail bonds given to the Sheriff
in any County Court whatcvt’r be the penalty.

4. recognizances of bail taken in County Courts to
amount.

any

5. actions of replevin where the value of the goods

or property taken does not exceed $200.
G. interpK’ader matter.s.

\m I

ij

Ui

I i>

I’;!

Snrrodtite
Court.

Mdritimc
Court,

94

Tin; I’llOVFNCI AI. .iriiK ATl’ltK.

7. lU’tiuiis Inr ihc i-cc(i\(‘ry <>r liiml wIktc llic yciirly
Villllc dl’ llli’ premises (»!• llie relit pJiyillile (Icies Hot cXCCud
$200, (u) whero till’ interest of the lenaiit hiis sutlfi red or
lias been determined l)y iiuijee Id (piit, (/>) where the ri lit is
(iO days in urreiir and the hindlord has thi; ri^dit to re-eiit(!r.
It is expressly declared that the (*niir( shall not, have
Jurisdiction :

1. where the title to land is in (|iiestiiin except in
the above-mentioned cases,

2. where the validity ol” “-ly devise, l)e(|uest, or limi-
tation nnder any will or settlement is dispnte(|.

ti. in cases ot’libel, slander, rrini. con., or sednction.
4. in actions ai^ainst a Justice of the Peace tor anything
done by him in the execution of his office if he objects thereto’.

Surrogate Court. In each coiinty the senior County
Court Judge holds a Surrogate Court, which has jurisdic-
tion in all testamentary matters and causes and in relation
to the granting and revoking probates of wills and letterw
of administration, subject to an a]»peal to the Chancery
Division of the High Court'”‘.

The Court has a concurrent jurisdiction with the High
Court regarding the custody of infants ”.

The Maritime Court was constituted by the Dominion
Statute 40 Vic. c. 21. It is com])osed of one Judge for the
Pi’ovince and Surrogate Judges for certain localities appointed
by the Governor in Council. It has jurisdiction in all such
matters (with certain exceptions) arising out of or connected
with navigation, siiipping, trade or commerce on any river,
lake, canal or inland water of which the whole or part is
within the Province of Ontario, as would belong to any
existing Vice-Admiralty Court if its process extended to
Ontario. By an Ontario Act ^ the Judge of the Court has

1 0. K. S. 1887, c. 17, .”s. 18—22.
» lb. c. 137, s. 1.

« 0. R. S. 1887, c. 50.
” 0. R. S. 1887, c. 43.

OXTAlilO.

95

‘I’,

to
as

tlu’ same autlmrily as u Cuiinty (“muiI .Iiuli^f it’irindini,’ llic
use of the Court-house or other ImiMiii^rs for the aihiiiuis-
tratioi» of justice.

Heir and D(‘>’i-rty and civil rights are not allowed
without special leave, unless the title to real estate or the
validity of a patent is affected, or unless the matter in
controversy exceeds the value of ^1000, or unless the
ipiestion relates to the taking of an annual or (piarterly
rent, customary or (piarterly duty, or a like demand of a
general nature affecting future rights'”.

Appeals from the Court of Appeal to Her Majesty in
Council are prohibited except when the matter in contro-
versy exceeds $4000 in value, or relates to the taking of a
rent or any like demand affecting future rights’. This liow-
ever does not affect the right of the Judicial Committee of
the Privy Council to sustain any appeal as a matter of
grace.

1 O. R. S. 1887. c. 11, ss. 20—42.
:’ II). c. 12, 8. 2.

2 O. R. S. 1887, 0. 44.
* O. R. H. 1887, c. 41.

NOVA SCOTIA.

i)7

Nova Scotia.

Justices of the Peace. In al! actions of dobt, where the
cause of action clo,>s not oxcee.l l$20 one Justice ha.s juris-
diction, and where the cause of action exceeds $20 and
does not exceed $80 jurisdiction may be exercised by any
two Justices of the county in which the defendant resides
or in wliieh tlie debt or cause of action arose. In the hitter
ca.se either party may have the case tried before a jury’.

Gountij Courts. Seven County Courts have been es-
tablished, on(3 for each of the seven districts into which
the Pnn’ince has been divitled’.

The Judges of the County Courts are also Masters of the
Supreme Court ^.

The County Courts have jurisdiction ■*,

{a) in all actions ex contractu where the debt or
damage claimed does not exceed $400 and is not less than

$20;

{b) in all other actions where the damages claimed
SO, the above jurisdiction is
concurrent with that of the Supi-eme Court.

The following matters have been expressly excepted out
of the jurisdiction of the Courts, viz. actions where the title
to land i.s in cpiestion, or where the validity of any devi.se,
betpiest, or limitation is disputed, as well as actions fur crim.’
con., s’.iuction, and breach of promise of marriage.

■Titstirr.i.

Coiiiiti/
Ciiiirla.

•Turisdic-
tion.

‘ N. S., R. S. 1884, c. 102, s. 1.
» N. S. 4!) Vic. c. 50.

– N. S., R. S. c. 105, ,s. 2.

* N. S., R. S. 1881, c. 10;-;, s. 1(1.

ii

I .:

I i.^M

i ■ i

iil

■p

^

I ^

«*f

98

Adniiraltij

Call ft.

I’mhdte
Cdurt.

Dirnrce
Court.

Supreme
Court.

THE mOVINCIAL JUDICATURE.

The Courts have jurisdiction in appeals from Justices,
Stipendiary Magistrates, City and Municipal Courts.-

The Admiralty Court exercises jurisdiction in all Ad-
miralty matters.

Probate Court. This Court has jurisdiction in all matters
relating to the probates c>f wills and the administration of
estates ‘.

Cou7-t of Matrimonial Causes and Divorce. This Court is
presided over by the Ecjuity Judge and has jurisdiction over
all matters relating to prohibited marriages and divorce ; an
appeal lying to the Supreme Court in banc’.

The Supreme Court. The Supreme Court resembles in
organization and jin-isdiction the Supreme Court of Judi-
cature in England. It is composed of a Chief Justice and
six Puisne Judges. Circuits of the Court are held twice
a year in each county and extra sittings are in the summer
held in certain towns.

The Court is invested with the powers that were formerly
exercised by the Courts of Queen’s Bench, Common Pleas,
Chancery and Exchc(pier in England and also with all the
powers, except those relating lo Probate and Surrogate
Courts, that are now exercised in England by the Supreme
Court of Judicature ^

It also exercises an appellate jurisdiction in cases from
County Courts.

I ii

New Brunswick.

Juxticen. Justices’ Civil Courts. Justices of the Peace have in the

Coinities in which they reside and for which they have been
appointed Justices, jurisdiction in the following actions :

• N. S., R. S. 1884, c. 100.

– N. S., E. S. 1873, c. 120, s. 10, N. S. 49 Vic. c. 49.

■’ N. S., R. S. c. 104.

n?,

NEW jnUTNSWK^K.

99

‘Oil

1. Actions of debt where the sum demanded does not
exceed |;20.

2. Actions of tort to real or personal property where
the damages claimed do not exceed $8.

The jurisdiction does not (\xtend to actions where th(^
Queen is a party, or where the title to land is in question, or
the action is for a debt exceeding $i20 unless the same has
been reduced by payment or abandonment to that sum, or
where the action is for debt against personal I’eprcsentatives,
trustees of absconding debtors, assignees of bankrupts or
insolvents, or banking or insurance companies *.

A rehearing may on affidavit be obtained before a
Justice of the Supreme Court.

Local Courts. Stipendiary and Police Magistrates have
jurisdiction in the county, town, parish, or district for wliicji
they are appointed,

1. in all actions where a Justice of the Peace lias
Civil jurisdiction ;

2. in all actions of debt where the amount claimed
does not exceed f 40 ;

8. in all actions of tort to real or persom’ jiropci-ty
where the title to land does not come in ([ucslion and where
the damages do not exceed S16.

Civil Courts of St John, Fredericton, Portland. Special
Civil Courts have been established in certain towns.

The Small Debts Court of Fredericton has jurisdiction
in actions of debt up to $40, and in tort up to $1().

The City Court of St John and the Civil Court of
Portland have jurisdiction in actions of debt up to 880,
and in tort up to $20 ^

Parish Courts. In each parish a Court is hild before a
Connnissioner, being a Justice; of the Peace appointed by the
Lieutenant-Governor in Council ‘.

■ft

T.iii’dl

Cih/

Court.’!.

I’liriah

CDlllts.

> C. S., N. E., c. CO.

“■ C. S., N. B. cc. 53—57.

■^ C. S., N. B. c. 59, t3 Vie. c. 12.

I\’

tU

If

Dhwrce
Court.

Probate
Court.

Count)/
Courts.

100

THE PKOVIXCTAL JUDIdATITRE.

The Court has jurisdiction in

1. actions of debt where the sum demanded does not
exceed S4() ;

2. actions of tort to real or personal property where
the damage claimed does not exceed ^IG.

The same causes that are excerpted out of the jurisdiction
of the Justices’ Court are also excepted out of this Court
substituting |;40 for |20.

Court of Divorce and Matrimonial Cavses. By the
31 Geo. 3, c. 5 (N. B.) the Governor and Council were con-
stituted a Court for hearing and determining causes relating
to marriage and divorce.

By the 23 Vic. c. 37 (N. B.) a Court of Divorce and
Matrimonial Causes was established, and the jurisdiction
formerly vested in the Governor and Council in respect
of marriage and divorce is tkjw vested in this Court ‘.

An appeal lies to the Supreme Court.

Probate Court. Probates of Wills and Letters of Ad-
ministration were at Hrst granted by the Governor inider
the Koyal Instructions ; Surrogates being appointed for that
purpose in the different counties”’. The Court of Probate
has now full jurisdiction in all matters relating to wills oi’
administrations, an appeal lying to the Supreme Courts

County Courts. When the province was first established
County Charters or Letters Patent were issued creating the
several districts, into which the province w^as for that pur-
pose divided, separate counties, and constituting a separate
judicial system for each district. Amongst the Courts es-
tablished were the Inferior Courts of Common Pleas with
jurisdiction in all causes arising within the county and in
which the amount claimed exceeded 406′, and did not excei.’d
£50 in value and in which the title to lauds did not come

‘ C. S., N. B. c. 50.

‘- Keport on Judicial Institutions of N. B. p. 35.

^ C. S., N. B. c. i,-!, 41 Vice. 30.

ni

NEW BRUNSWICK.

101

ill (piostioii. In 1795 the jurisdiction was extended by
giving to these Int’ciioi- Courts ii concuirent jurisdiction with
the Supreme Court \ These Inferior Courts of Coinnion
Pleas were abolished in 1SG7 and County Courts substituted
for them I

A County Court sits in each county from time to time Jurisdio-
aud has jurisdiction in all personal actions of debt, covenant
and assumpsit where the debt or damages claimed do not
exceed $200, and in actions on bonds given to the sheriff
or otherwise in any case in a County Court and in actions
on other bonds where the real debt does not exceed S4()0 ‘;
except (1) where the title to land is in cpiestion, (2) wh(‘re
the validity of any devise, bequest or limitation is disputed,
(8) crim. con. and seduction, (4) breach of promise of
marriage, (5) actions against justices of the peace for any-
thing done ill the execution of their otiice *.

An appeal lies to the Supreme Court by any party
feeling himself aggrieved by the decision of a judge U])()n
any point of law, or with the charge to a jury, or with the
decision upon motion i’or a non-suit or for a new trial or in
arrest uf j udginuii L ‘.

County Courts have concurrent jurisdiction with the
Circuit Courts in all criminal cases except ca])ital ofiences “.

Siq)reiiie Court. The Supreme Court of New Bruiis- Sapronr
wick was established by General Thomas Carleton, the lirst
Governor, under the authority of the King’s Commission.
It was invested with the powers and authorities of the
three Superior Courts of Law at Westminster Hall. Its
constitution and practice have from time to time been
moditied by local statutes \

1 N. li. 3.j Geo. 3, c. 2: sec Uopoit of Commissioners on Judicial Institu-
tions of the Pioviuce, 1S33.

– N. B. 30 Vic. c. 10. ■ N. B. I’J Vie. c. 1.8.

* C. S., N. B. c. 51. 5 iij. s. 50. « lb. a. G2.

– C. S., In. B. 37. N. B. 30 Vic. o. 31 ; 12 Vic. c. 7 ; lb. c. 8 ; U Vic.
c. 12.

r

r

WHI

im

m
I*

‘ . t

,

A:?] \

102

THE PROVINCIAL JUWCATURE.

In 1879 ii separate; Judge in E(}iuty was appointed to
hold separate Equity sittings and to exercise all the powers
of tlie Supreme Court in Etjuity. The in-iginal jurisdiction
(A’ the Supreme Court was preserved and an appeal was
allowed to the Court from the Judge in Equity’.

Tlie Court is now comijosed of a Chief Justice, a Judge
in E(iuity and four Puisne Judges*. Sittings of the Court are
hehl at Frf the Supreme Court in Equity.

Manitoba.

i -;

J 111

}

Coll Illy
Cuiirts.

Cuuntt/ Courts are held in counties fron\ time to time*^.
The Courts have jurisdiction,

(a) in all personal actions of tort where the damages
claimed do not exceed $100 ;

{h) in all actions of replevin where the value of the
goods does not exceed f 100 ;

(c) in all actions ex contractu where the amount
payable does not exceed $250.

The following actions are excepted :
((/) for a gambling debt ;
(/>) for spirituous licpior drunk in a tavern ;
(c) on notes of hand given for a gambling debt or foi-
li([Uor drunk in a tavern ;
((/) of ejectment ;

‘ N. B. 42 Vic. c. 7. lb. c. 8. -‘ N. B. 44 Vic. c. 12.

•’ N. B. 13 Vic. c. 10. J N. B. 4’J Vic. c. ‘J.

° C. S. Man. 1880, c. 34. IM. 48 Vic. c. 22.

MANITOBA.

103

lilt

tor

1

i

(e) relating to validity of duvist’S or limitations uiultji’
a will or suttlomeut;

(/) for malicious jirosecutiou, libel, slander, crim, con,,
seduction or breach of promise of marriage ;

{g) against justices of the peace or peace officers for
anything done in the execution of their office.

A Surrogate Court has been established for each judicial Snrmndtr
district. The Senior County Court Judge for the district
presides.

The Court has jurisdiction in all matters relating to
probates of wills and letters of administration in the
Province ‘.

Court of Queen’s Bench. The Court of Queen’s Bench <^"""rt »/ consists of a Chief Justice and three Puisne Judges and iiencii. sits at Winnipeg ^ The Court as a Court of original and appellate juris- diction possesses "all such powers and authorities as by the laws of England are incident to a Superior Court of record of civil and criminal jurisdiction in all matters civil and criminal whatsoever and shall have use enjoy and exer- cise all the rights incidents and privileges as fully as the same were on the loth July 1870, possessed used exercised and enjoyed by any of Her Majesty's Sujaiior Courts of common law at Westminster or by the Court of Chancery at Lincoln's Inn or by the Court of Probate or any Court in England having cognizance of property and civil rights and of crimes and offences ^." The Court has therefore both civil and criminal as well as legal and equitable jurisdiction*. Courts of Assize for civil causes are he'd by one of the .l.ssuf,-.-. juilges of the Queen's Bench twice a year at Winnipeg for the Eastern Judicial District, and at Portage la Prairie for • M. 14 Vic. c. 28, 8. 93. •' lb. s. (). = M. 18 Vic. c. 15, S3. 11, 13. •» lb. a. 7. .: ': k i 104 TllK I'liOVINCIAL JUUICATUllE. the Central Jiuliciul District, and at Brandon for the Western Judicial District*. As a Court of A2)peal the Queen's Bench hears appeals on points of law from County Courts"; appeals from the decision of an election judge on any (piestion of law or facts'*; ajjpeals from a judge in chambers* and from the Surrogate Courts ^. 1^ ! I 1 n Small DebtK Court. County Court. Supreme Court, British Columbia. Hinall Debts Cuurt. Actions in which the sum demanded does not exceed flOO may be tried before a stipendiary or a police magistrate ®. Count}] Courts. Six County Coiu'ts have been es- tablished under the 4G Vic. c. 5. They exercise jurisdiction in all civil causes up to $1000 and in ecjuity up to $2500, and are invested with the powers of a Court of Probate. An appeal on points of law lies to the Sujjreme Court. Supreme Court. By a commission dated the 2ud Sept. iSocS, Her Majesty appointed Matthew Baillie Begbie to be a judge of the Colony of British Columbia with full power to hold Courts of Judicature and to administer justice. Governor Carleton on his arrival issued a pro- clamation which had the force of law declaring that the Court held before Judge Begbie shoidd be known as the Supreme Court of Civil Justice of British Columbia and ordained that the Court should be invested with " complete cognizance of all pleas whatsoever" and "with jurisdiction in all cases civil as well as criminal arising within the Colony." Previous to this an order in Council dated the 4th April 1S56, had constituted a Supreme Court for Vancouver's iM 1 M. 48 Vic. c. 10. 8 lb. c. 4, s. m. s M. 14 Vic. c. 28, H. 123. - C. vS. Man. c. 34, s. 20G. ■» lb. c. 31, 8. 24. fl B. C. 4'.) Vic. c. 0. rillNX'H KDWAKDH ISLAND, 105 i;.. Ishiiid. AIUt tlu' uuidii of ihf Island with l>ritish (‘(ilmnbiu
the t\V(j Courls were incrg’ud in oiu’ Cinirt callrd the
Siipreiuu Court of British Cohuidna’, such Court to possess
all the powers of the two previously existing Courts.

Subse(pieutly the Legislature passed an Act ‘^ constituting
a Provincial Supreme Court under the name of the Court
of Queen’s Bench to be composed of the same Judges as the
Sui)remc Court, and to have all the powers and jurisdiction
of that Court.

The Supremo Court now consists of a Chief Justice
and four Puisne Judges. Courts of Assize are held in
different towns throughout the Province on lixcd days I

‘1

3tC

I in

I ))

Iril

I )
Ir s

Prince Edward’s Island.

Civil Jurisdiction of Justices. WJiere a debt does not
exceed 832 a debtor may be arrested and brought before
a Justice of the Peace, and unless he gives secmity f(jr
appearing at the County Court to answer the plaintiff’s
suit, tw^o Justices may try the causes, an appeal lying to
the County Courf*.

Courts for trial of Small Belts to be held before Com-
missioners were in 18G0 established throughout the province.
Jurisdiction was conferred in matters of debt and trover i\)V
the recovery of sums not exceeding £20, except where a
(piestion of title was involved, or the action was for a
gambling debt. Actions for rent were also excluded unless
no distress could be found on the premises^

County Courts. The County Courts have jurisdiction,
(a) in all actions ex contractu and ex delicto wlim’ the
debt or damages claimed do not exceed $150 ;

■I untie

Small

Ihlll:^

Cdiirt.

Ciiiiittii
Court.

^If

1 B. C. Ordinances, Ibt March, 1801), 22nd April, 1870.

2 B. C. to Vic. c. 3. 3 B. C. 18 Vic. c. G; I’J Vic. c. 3 ; 50 Vic. c. 8.
* P. E. I. 37 Vic. c. 1.

5 P. E. I. 23 Vic. c. 10.

1 1< I I ► lOG THE rUOVIXCIAL .TUI>ICATUJ{E.

Marine
Court.

Suiro(j(ite
Court.

Iu.iolvcHts’
Court,

Divorce
Court,

Court.

{b) ill actiuiis uii bail b(jii(l.s givuu Lu a slit’iitV in a
County Cuurb or wlicru tlie penalty is recuvcrablL’ bct’uru the
Court of Couunissionurs for the recovery of small debts ;

(c) in all autiouH for any amount recoverable under
any statute before the Court of Conunissioners for the
recovery of small debts.

The following actions are excei)tcd,

(a) of detiinie, replevin or ejectment where the title
to land is brought in (juestion ;

(b) in which the validity of any devise, becjuest or
limitation is disputed ;

(c) crim. con. and seduction ;

(d) for breach of promise of marriage ;

(e) against executors or administrators ;

(/) i^gy-iiist Justices of the Peace for anything done in
the execution of their ollticc ;

(g) upon judgments in the Supreme Court*.

An appeal is allowed to the Supreme Court “.

A Marine Court of Enqnirij established by the 27 Vic.
c. 23 has jurisdiction in collisions, casualties resulting in loss
of life and charges of misconduct against masters of vessels.

Surrogate Courts. Jurisdiction in matters relatuig to
wills belongs to the Surrogate Courts ^

Insolvents’ Courts were established by 81 Vic. c. 15.

Coicrt of Divorce, In 1835 the Lieutenant-Governor and
Council were authorized to hear and determine all matters
relating to divorce, and power was given to the Lieutenant-
Governor to a^ipoint the Chief Justice to preside in his
stead *.

Supreme Court, The Supreme Court was established by
Governor Patterson under the powers conferred by his Com-

1 P. E. I. 41 Vic. c. 12, 63. IG— 17.
3 P. E. I. 3G Vic. c. 21.

•J lb. s. 93.

M’. E. I. 5 Will. 1, c. 10.

NOllTU-WEST THUUITOUIKS.

107

I

mission’. As ii, C’lniil u|’ (“ininmiii Law it is f()iii|Kisr(l nf
u duel’ .Iiistici.’ ami two Puisne .liistifcs, who cxcivisr u
juns(licli(jn siniiku’ to thai enjoyed hy the old Courts of
Quuen’.s Bunch and Conmion Pleas.

Jurisdiction in Iviuity belongs to the Master of the ilolls”
and to the Vipe-Cluincellor”, who act also as Puisne Judge’s
on the Connnon law side of the .Sujjrenie Court. An ajipcal
in Ecjuity lies to the Chief Justice, the Master of the Rolls
and the Vice-Chancellor’ Kxcept when silling in the Court
of Appeal the Chief Just.je has no e(|uity jurisdiction.

The Mastt’r of the Uolls ;is such has similar powers to
those formerly enjoyed by the Master of the Rolls in
England”, and the Vice-Chancellor as such has co-ordinate
jurisdiction”.

The Chief Justice, the Master of the Rolls and the
Vice-Chancellor act as a Court of Appeal in Chancery’, and
all right of appeal to the Lieutenant-Covernor as Chancellor
haa been taken away”.

1

I I

}i

N( )in”ir-WEST Teriuti )1!I ks.

The Supreme Court consists ot Hve Puisne Judges, each
of whom is re([uired to reside at svich place in the territories
as the Governor in Council directs “. A judge usually exercises
jurisdiction within the district in which he resides, and is
invested with all the p(jwers of the Court other than those
usually exercised by a Court sitting in banc.

The Court possesses the same powei’s as the Co;u\, of
Queen’s Bench of Manitoba ‘”, and has all tin.’ powers vested
in the Stipendiary Magistrates on the 2nd June Ifssii.

Supreme
Court.

Juiisdiu-
tion.

1 See ante, p. 32.
3 P. E. I. 32 Vic. c. 1.
5 P. E. I. 11 Vic. c. G.
‘ lb. P. E. I. 1() Vic. c. (1.
‘•’ 11. S. C. c. 50, sa. 41—45.

8 P. E. I. 11 Vic. c. 0.

^ lb. 4G Vic. c. «.

” P. E. I. 32 Vic. c. 4.

» P. E. I. 44 Vic. c. 10, s. 3.

1″ lb. a. 48.

WW

flit

^i

1

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108

TIIK I’llOVINClAL JrDFC’ATlTltK.

Every .Iiid^fc is autlioriziMl to lii>l(l u l.’inirt ut s)i<-li tinu's uml pliiccs as he thinks proper and to (k'l'idc any claim <»r (lis|»\it(' in a Huniinary inanncr, except in a(!tions of debt or contract where the claim exceeds I^IOOO, and in actions ol' tort where the amount, claimed exceeds ^o.UU, in wh' casus either party may demand a jury'. I COUUTS OF CllIMlNAL JURISDICTION. V>y section 91 of the British North America Act IHG7,
the Criminal law includini,” Criminal piocedure was placed
within the legislative jurisdiction of the Dominion whilst
the Constitution of Courts of Criminal jurisdiction was
handed over to the province.

A uniform code of Criminal law and procedure lias
been for some years in force in the Dominion.

jitxticcs. Justices of the Peace. Justici’s of tlie Peace and •’

pondiary magistrates have by various statutes jurisdiction
to try in a summary manner minor offences. They are also
authorized to try sunnnarily certain indictablt_^ offences such
as larceny, embezzlement, obtaining money under false pre-
tences, aggravated assaults, assaults on children or magis-
trates, using premises for betting, provided the accused
consent to be so tried. Persons under 10 years of age charged
with larceny may be tried before one stipendiary magistrate
or two justices’*. An a})poal from any conviction of justices
lies in Ontario to the Sessions, in Quebec to the Queen’s
Bench, in Prince Edward’s Island and North- West Territories
to the Supreme Court, and in the other provinces to the
County Court’.

Scsniuiu. General or Quarter Sessions, Recorders Court. These

courts sit at least four times a year and have as a rule power

1 11. S. C. c. 50, a. 88.

2 lb. CO. 171, 17().

^ lb. c. 178, b. 70.

fOCIfTS or CIv’lMINAI, .lllilSDK TI(>\.

101)

to tfv all iinlif’tnblc (iri’cin’cs <'xc(|)t tiTMsdii, fMony pniiish- iiltlc with (liatli, lilirl, iiikI iVainliilriit ads ol' .'iLfciits, Iiaiikris, factors, tru.stc'cs, (liivc'tors, kccjMrs of warehouses or partners'. Connli/ Conrtn. In some iirovinces such as Manitoba, Nova Scotia and Now I^runswick, tht; County Court exorcises a criminal jiu-isdiction, a^ a])poals from decisions of Justices are in these jirovincos taken to the (^)unty Comt. (JoH)'fs of ()i/er (1)1(1 I'enninrr. Courts of Dyer and Terminei- and ^^eneral i^^aol di'Hvery are held periodically in the dilferent ])ro\inces. Such Courts have general juris- diction in tri'ason, felonies, and other indictable otfeiict's". 'The Supreme Court of each province has on its Citnuiion law side jurisdiction in all indictable oifeiices. Court for consulcrdtion of Crown Cases reserved. Any (piestion of law arising on a trial where a person is coiivicted on indictment of any treason, felony or misdemeanour may bo reserved by the Judge for the consideration of this Court''. The Court for the considerat ion of Crown cases reserved (.'iiiintii Ciiiiiiii of Oi/ir iii'il 'ii rin'nii i\ Prariiicidl Stljirt'illi' Cdiirt. Ciiiirl fur coii.iiilcni- tion iif rcKi'rrcd cast a. IS in Ontario, any division of the High Court of the pro- vince; in Quebec, the Court of Queen's Bench on its appeal side; in Nova Scotia, New Brunswick, British Columbia, and Prince Edward's Island, the Supreme Court of the province ; in Manitoba, the Court (»f Queen's Bi'uch of the province; in the North-West Tei'ritories, the Su})reme Court of the Territories'. ' i^i ho 1 R. S. C. c. 171, ss. 1, t\. ' lb. c. 17 1, s. -ir.it. - lb. c. 17 1, fl. 3. * II). c. 171, H. 2. 'SC er • /■ CHAPTER XL » : » TnK Dominion Parliament. i 4 1. Parties to Legislation. The legislative power of the Doiuinioii is generally re- presented as being vested in (1) the Parliament of Canada, consisting of two Houses, viz. a Senate and a House of Commons, and (2) the Governor-General. Inasmuch, how- ever, as the Crown may veto any Canadian Act, it is move correct to say that the Legislature of the Dominion consists of (1) the Crown, (2) the Governor-General and (3) the Parliament of Canada'. Reserving for later consideration the relations of the; Crown and the Governor-General to legislation, an account will now be given of certain matters relating to Parliament generally and then the constitution and functions of each House will be considered in detail. 2. How summoned. Though the British North America Act, 1867, makes provision for the appointment of senators, the election of members of the House of Commons, and the meeting of Puiliament once a year, it is silent as to the manner in which Parliament is sunnnoned, exce])t in so far as it provides by section 88 that the Governor-General may summon the 1 B. N. A. Act, RR. 17, 55, 57. -V^Sw*- ■ IIP THE DOMINION PARLIAMENT. HI CCS of of ich by the House of Commons in the Queen's name under the great seal. By the Letters Patent* constituting the office of Governor- General the Crown authorizes and empowers the Governor- General to exercise all powers belonging to the Crown in respect of the summoning, proroguing or dissolving of the Canadian Parliament. The Governor-General has therefore fidl legal power to exercise the prerogative rights of sum- moning or dissolving Parliament. In exercising these powers he follows closely the practice adopted by the Crown in England. The Dominion like the English Parliament is summoned Rnmnions for the despatch of business^ by proclamation issued by and with the advice of the Ministry. Various months have been selected for the time of meeting but it is now understood that Parliament will be summoned as early in the year as possible. The form of proclamation is as follows. Lansdowne, Canada. Victoria by the Grace of God of the United Kingdoni of Great Britain and Ireland QuEEX Defender of the Foith &c., &c. To our beloved and faithful the Senators of the Dominion of Canada and the Members elected to serve in the House of Commons of our said Dominion and to each and every of you : — Greeting : — A Proclamation. Whereas the meeting of our Parliament of Canada stands Prorogued to the 17th day of the month of December next, Nevertheless, for certain caiises and considerations. We have thought fit further to prorogue the same to Thursday the Form of jiroeliiiiiii- tion. I i ? 1 I e h i(' jl Sec Appendix. ^P^VMI mmi < 112 THE DOMINION PARLIAMENT. seventeenth day of the month of January next, so that neither yon nor any of yon on the said seventeenth day of December next at Our city of Ottowa to appear are Lo Lo held or constrained : for we do will that yon and each of you, be as to Us, in this matter, entirely exonerated ; commanding and by the tenour of these presents, enjoining you and each of you and all others in this behalf interested that on Thurs- day, the seventeenth day of the month of January next at Our city of Ottawa aforesaid, personally be and appear for the despatch of business to treat, do, act, and conclvule 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 maintained. In testimony whereof We have caused these our Letters to be made Patent and the Great Seal of Canada, to be hereunto affixed. Witness &c. ■' \i \ f' Proceed- 3. TJie opening of Parliament. inps in the House of When a new House of Commons is elected, the members Commons. ' assemble in their Chamber on the morning of the day men- tioned in the proclamation and at an hour fixed by the clerk, for the purpose of taking the oath and signing the roll. The Clerk of the Crown in Chancery attends at the table and delivers to the clerk of the House a roll con- taining the names of duly elected members. The oath of all(>giance in the form set out in the British North America
Act 18G7,

I

do swear that I will be faithful and bear

true allegiance to her Majesty Queen Victoria ;

is administered by one of the clerks or the Sergeant-at-
arms authorized for that purpose by the Governor-General*.
Election of Kj tho British North America Act 1867, section 44, the
Speaker. Uo^y^J Qf Conunons on its first assembling after a general

J B. N. A. Act, 1867, s. 128.

\\\

\

OPENING OF PARLIAMENT.

113

;”i

election is to ” proceed with all ])racticable speed to elect
one of its members to be Speaker.” The House might
evidently under this provision at once elect its Speaker, and
such election would be complete without any confirmation
by the Governor-General.

The customary method of jjroceeding to the election is
as follows: —

Shortly before the hour fixed for the opening of Parlia-
ment, the members re-assemble. On the U.sher of the Black
Rod presenting himself at the door, which he strikes three
times with his rod, he is admitted. Advancing up the floor
of the House he makes three obeisances and says in French
and in English —

” Gentlemen [or Mr Speaker in suhseqitent sessions],
his Excellency the Governor-General desires the im-
mediate attendance of this honourable House in the
Senate chamber.”

The Usher then retires and the members proceed to the
Senate chamber in order to hear the message relating to the
election of S])eaker. The Speaker of the Senate thereupon
addresses the members as follows :

” His Excellency the Governor-General does not see fit
to declare the causes of his summoning the present Parlia-
ment of the Dominion of Canada until a Speaker of the
House of Commons shall have been chosen according to law,
but to-morrow, at the hour of — his Excellency will declare
the causes of his calling this Parliament,”

The Commons then return to their chamber. The clerk
presides and the election of Speaker is proceeded with, any
(piestion relating thereto being put to the House by the
clerk. The member duly elected is conducted to the Chair
by his proposer and seconder, where he returns his thanks to
the IIous(! for the honour conferred on him. The mace is

Elcctiniiof
Siitnkcr.

M.

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114

THE DOMINION I’AIILIAMENT.

y

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Approval

of

Speaker.

Tionrlinp;
bill pro
J’uriiM.

then placed on the table and the House adjourns to the fol-
lowing day. Upon its re-assembling the Usher of the Black
Rod again desires its attendance in the Senate chamber.
The Speaker-elect then informs the Governor- General of his
election and claims for the House “all their undoubted
rights and privileges.” The Speaker of the Senate on
behalf of his Excellency replies that ” he fully 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.”

In the English House of Commons the choice of a Speaker
is “confirmed and approved” by the Crown. This course
was followed in some of the Legislatures of the old provinces;
but when in 1827 Lord Dalhousie, then Governor- General,
refused to approve the election of Mr Papineau as Speaker of
the Legislative Assembly of Lower Canada, the Assembly
passed a resolution declaring the action of the Governor-
General to be unconstitutional, as the Act constituting the
Legislature did not require the choice of Speaker to be ap-
proved by the Governor-General. The form of approval
remained in force in Upper and Lower Canada until the
union of the two provinces in 1841, but the Act of Union is
silent on the point.

After the delivery of the usual speech by the Governor-
General the members return to their own House, the Speaker
after taking the chair informs the House that the u.sual
privileges had been granted to the House by the Governor-
General. The reports of Judges and returns of the Clerk of
the Crown in Chancery respecting elections are then pre-
sented, and in accordance with the custom prevailing in the
English House of Commons a bill is read a first time p7’o
forma in order to assert the right of the House to deal with
any business it may think right to discuss before proceeding
to the consideration of the matters contained in the
speech.

pro
,’ith
ing
the

THE GOVERNORS SPEECH.

115

The Speaker then reports to the ‘House that his Excel-
lency the Governor-General has that day made a speech to
both Houses of Parliament of which he has obtained a copy.
The speech is entered on the journals as read, and a member
of the Government then moves that the speech be taken
into consideration on a future day. When this is agreed to,
formal resolutions are passed appointing standing committees,
and the librarian’s report and other papers are presented.

In England the Queen’s Speech is invariably taken into
consideration on the same day on which it is delivered; but
in Canada, though the custom is to debate the Speech on the
following day, yet when important matters are likely to come
up for debate its consideration may be postponed for a time.
An instance of this occurred in 1873, when the House thought
it advisable to consider at once matters relative to the Cana-
dian Pacific Railway*.

A resolution for an address in reply to the Speech is
moved and seconded. Each paragraph of the resolution is
put as a separate resolution, and a general debate may take
place on such paragraph and amendments may be moved.
When the resolution has been agreed to, it is referred 2^0
forma to a Committee to prepare and report the draft of
an address. The Chairman of this Committee reports the
address, which is read a second time and usually agreed to
without any discussion. The address is then ordered to be
engrossed and presented to the Governor-General by such
members of the House as are Privy Councillors.

On the opening of a New Parliament the Senators meet
in their chamber, and the Speaker informs the House when
the Governor-General will proceed to open the session. If
a new Speaker has been appointed by the Governor-
General* the Clerk of the House, as .soon as the Senate has
met, reads the Commission making the appointment, and the
Speaker-elect is conducted to the Chair by two prominent

Considera-
tion of
Speech.

Prococd-
int,’s in
Heniite.

Can. Com. J., 1873, Oct. aess. p. 119.

B. N. A. A., 1807, s. 34.

8—2

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THE DOMINION PARLIAMENT.

iSenatora. Tho mace is placed on the table and prayers are
read. New members present their certificates of appoint-
ment and take the oath of allegiance*. The House then
adjourns until the hour when the Governor-General is to bo
present.

At the appointed time the Governor-General takes his

seat and the Speaker directs the Usher of the Black Rod to

summon the Commons. The Commons attend with their

Speaker and the Governor-General reads the Speech.

Considora- After the Commons have returned to their chamber and

tion of

Speech, the Governor-Geiieral has retired, a bill is introduced pi’o
forma^ and the Speaker reports the speech, which is then
usually ordered to be taken into account on the following
day. All the members present are then appointed a com-
mittee to consider the orders and customs of the House and
privileges of Parliament. To this committee is referred every
matter affecting the privileges-^ of the House or of its members.
The procedure followed on the consideration of the address
was up to 1870 similar to that adopted in the Commons,
b\it in that year the custom of moving the address directly
without any previous resolution was introduced and has
since been followed. The address being agreed to is ordered
to be presented by those Senators who are Privy Councillors.

Ill

4. Quorum.

By Sections 35 and 48 of the British North America
Act, 1867, it is provided that at least 15 Senators and
20 Members of the Hou.se of Commons, including the
Speaker, are necessary to constitute a meeting of the
Senate and of the House of Commons respectively. In the
Senate if, 30 minutes after the Speaker takes the chair,
there is not a quorum, he adjourns the House until the

1 h. N. A. A. 1807, 8. 128.

^ See ante, p. 115.

PRIVILEGES.

117

next day. In the House of Commons the Speaker may,
if the necessary number of members be not present, adjourn
the House as soon as he takes the chair, and is bound to
do so if his attention is called to the fact that there is no
quorum present and such proves to bo the case after counting
the House*. A count out is very rare in the Canadian
House of Commons ‘.

o. Privileges.

By the British North America Act, s. 18, power was Power to
given to the Parliament of Canada to define the privileges, pi.iviic I

lit
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>>.

iSl

Covrniit
rnicticcH.

Eevising
oflicers.

Other
oflicers.

Form of
Writ.

A person disqualified, if a member, vacates his seat and
incurs a penalty of $200 a day*.

4. Persons giii^ty of corrupt practices at elections.

(a) If it be proved on the trial of an election petition
that any corrupt practice has been committed by any candi-
date, or with his actual knowledge, or if any candidate
be convicted of bribery or undue influence, the election is
void, and such candidate is to bo incapable of being elected
to the House for seven years*.

(&) Persons other than candidates found guilty of
corrupt practices are to be incapable of being elected to the
House for a period of eight years ^.

5. A revising officer cannot be a candidate for the
electoral district for which he is revising officer, nor for two
years after he resigns his office *.

6. Sheriffs, Registrars of Deeds, Clerks of the Peace
and County Crown Attornies are also disqualified ^

4. Method of Election.

Every writ for the election of a member is dated and is
returnable at such time as the Governor-General determines.
The day on which the nomination of candidates is to take
place is mentioned in the writ, and such day must, in the case
of a General Election, be the same for the whole Dominion,
except in the electoral districts in British Columbia and
the districts of Algoma in Ontario, and of Gaspe, Chicoutimi
and Saguenay in Quebec, where the day is fixed by the
returning officer”.

The usual form of writ is as follows: —

Victoria, by the grace of God of the United Kingdom
of Great Britain and Ireland, Queen, Defender of the faith.
To tlio [Returning Officer]

1 R. s. c. c. 8, s. 18.

» lb. B. 98.

» lb. c. 11, B. 9.

» lb. 8. 96.
4 lb. B. 20.
« lb. c. 8, SB. 4—5.

WRIT OF ELECTION.

181

Greeting.

Whereas by the advice of our Privy Council for Canada
We have ordered a Parliament to be holden at Ottawa
on the day of [Oiyiit this preamble except in

case of a General Election], We command you that notice
of the time and place of election being duly given You do
cause Election to be made according to law of a Member to
serve in the House of Commons of Canada for the Electoral
District of {^Except in the case of a General

Election insert here in the place of deceased or

otherwise stating the cause of vacancy] and [except in
the Electoral Districts mentioned in s. 2 of 37 Vic. c. 9]
that you do cause the nomination of Candidates at such
Election to be held on the day of next and

that you do cause the name [or names] of such member
[or members] when so elected whether he [or they] be
preserit or absent to be certified to our Clerk of the Crown
in Chancery on or before the day of next.

Witness Our Right Trusty and Well-beloved Sec,
Governor-General of our Dominion of Canada at our City
of Ottawa, the day of in the year of

Our Reign and in the year of Our Lord 18 ,

Where a vacancy occurs in any Electoral District owing Vacancies.
to death, resignation or other cause, the fact of the vacancy
is brought to the Speaker’s notice in either of two ways,
(1) by a member giving notice from his place, or (2) by a
notice in writing under the hands and seals of any two
members.

The usual form of notice is as follows :
Dominion of Canada ]
To wit J

To the Hon. 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

9—2

Notice of
Vucaucy.

House of Commons.

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THE HOUSE OF COMMONS.

for tho Electoral District of [here state Electoral District,
cause of vacancy and name of Member vacating seat].

Given under our Hands and Seals at this

day of 18

Member for the Electoral District of

M » » ^J

Warrant The Speaker then issues his warrant to the Clerk of

for VAcv- 1 /-N . /-^i . • 1

tion. the Crown in Chancery for the issue of a new writ for the

election of a Member to fill the vacancy’. The warrant is
as follows :

House of Commons.

Proclama-
tion.

Dominion of Canada )
To wit J

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 Parlia-
ment for the Electoral District of in the room
of who since his election for the said Electoral
District hath [here state reason for issue of warrant]

Given under my hand and seal this day of in

the year of Our Lord

Speaker.

If there be no Speaker, or if the Speaker be absent from
Canada, then any two members can issue such warrant ‘^.

If a vacancy occur after a General Election, but before
the meeting of Parliament, a new writ is to issue, but this
is not to affect the rights of any person entitled to contest
the previous election.

Within a certain time, varying in the Provinces from 8 to
20 (lays after tho receipt of the writ, the returning officer

1 K. S. C. c. 13, s. 9.

2 lb. s. 13.

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DUTIES OF llETURNINt} OFFrCER.

133

issues a Proclamation stating the pl.”.e and time for the
nomination of candidates, the day on which a poll will be
taken if necessary, the polling stations fixed by him and the
place and time whore he will count the votes.

Before issuing the proclamation it is the duty of the
Returning Officer, after ascertaining the number of persons
([ualified to vote, to see that there are a sufficient number
of polling districts, and power is given him to subdivide
the districts appointed by the Legislature or by thu local
authorities so that there may be one polling district for
every 200 voters.

Duties of

Kctiiniili^;

Ollicor.

Proclamation.

Electoral District of

to wit.

Form of

I’roclnina-

tiuii.

Public notice is hei’cby given to the Electors of the
Electoral District aforesaid, that, in obedience to Her
Majesty’s writ to me directed and bearing date the day
of , I require the presence of the said Electors at

in the County [or City or Town] of on the

day of month of from noun until two of the

clock in the afternoon, for the purpose of nominating a
person [or persons] to represent them in the House of
Commons of Canada : and that in case a Poll be demanded
and allowed in the manner by law prescribed, such Poll
will be opened on the day of the month of

in the year from the hour of 9 in the morning till 5 of

the clock in the afternoon, in each of the Polling Districts,
that is to say:

For the Polling District No. 1, consisting of
at

A.nd further that on the day of at

1. shall open the ballot boxes, sum up the votes given for the
several candidates and return as elected the one having the
majority of votes.

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THE HOUSE OF COMMONS.

11

Of which all persons are hereby rcr.tiested to take
notice and govern themselves accordingly.
Given nnder my hand at this day of

in the year

A. B.

Returning Officer.

Nomina-
tion of
Can-
didates.

Deposit.

11

Poll.

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Ciindidatcs are nominated in writing signed by 25 electors.
The nomination jmpcr is not valid nnless accompanied by
the written consent of the candidate, except when he is
absent from the Province, in which case such absence is to
be stated in the nomination paper.

One of the persons filing the nomination is reipiired to
make oath before the Returning Officer that he knows the
several persons who have signed the nomination paper to be
electors duly qualified to vote ; that they signed the paper
in his presence ; and that the consent of the candidate was
signed in his presence, or that the candidate was absent from
the Province.

A sum of 200 dollars also has to be deposited with
the Returning Officer. This sum is returned to the can-
didate if he is ‘ lected, or if he polls half as many votes as
those given the successful candidate : otherwise the sum is to
belong to the Dominion and to be a|)plied by the Returning
Officer in defraying the expenses of the election ‘.

If a poll is necessary, it takes jilace on the day fixed.
The voting takes place by ballot, and the poll remains open
from nine in the morning till five in the afternoon. On the
close of the poll the Returning Officer counts the votes and
declares that candidate who is found to have a majority of
votes elected. If an equality of votes exists between two or
more candidates, the Returning Officer may give a casting
vote.

1 R. S. C. c. 13, B. 8, BB. 19— 23.

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I

RECOUNT.

135

Within four days after the declaration of the poll any Rtcomit.
“credible witness” may a])ply to the County Court JiKlge
or to the District Judge, or in the Province of Quebec to
the Judge of the 8uperi(jr Court discharging his duties in
the district, for a recount of the votes on any of the follow-
ing grounds, viz. that the Returning Officer (1) iin])roperly
counted, or (2) improperly rejected ballot papers, or (3) that
a person, whose name was included in or excluded from the
list of voters, was by the judgment of a Court not entitled
or was entitled to have his name on such list, or (4) that
the Returning Officer improperly summed up the vote-^.
The application must be supported by affidavit, and if se-
curity is given to the amount of 100 dollars, the Judge is
to hold a recount and certify the result to the Returning
Officer.

In order to allow time for an application for a recount iictnrn.
the Returning Officer is not ref[uired to make his return to
the writ of election until after the sixth day from the decla-
ration of the poll.

The return is in the following form : —

I hereby certify that the Member [or Members]
elected for the Electoral District of in pur-

suance of the within given writ as having received the
majority of votes lawfully given is [ur are] A, B and C
[names as in nomination jjapersl

Signed R. 0.
Returning Officer.

The return, together with a report, and other documents
are transmitted by post to the Clerk of the Crow^n in Chancery.
A duplicate of the return is sent to each candidate, and a
notice of the return is publishetl in the Canada Gazette.

The expenses of the Returning Officer are borne by the Expenses.
Dominion. The Governor-Oeneral by warrant directs the
Minister of Finance to pay the necessary fees, allowances

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TIIK llunsi; UF CUMMUNS.

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Acts fur
bidden.

Rntiirn to
tho Writ.

Tho Oath.

iiiid (lishursumuiits out of thu Cuiisolidatwl lluvomic ‘. If
a cuiididiitf, us already pdiiitiMl out, does not poll half as
many votes as the candidate elected, he forfeits the 200 dollars
deposit, whieh will then be applied by the Dominion towards
the expenses of the election.

The use of Ha^’s or ribbons or favours on the day of
election, and within eight days before such day is forbidden”.
Taverns are to be eh)se(l on the {)olling day’. Corrupt
practices, such as bribery or treating, or personation, or
paying for the couvcyaucu of voters are forbidden under
heavy penalties *.

At the beginning of each Parliament a return book
is furnished by the Clerk of the Cnnvu to the Clerk of
the Commons and is sufficient evidence of the return. In
addition to the return book the Clerk of the Crown semis to
the Clerk of the Commons a certificate of the return to each
writ ” deposited as of record ” in the Crown OfHce, and this
certiKcate is usually re([uired before a member takes his
seat. Not unfre([Uently members are sworn before such
certificate is made out, but in such cases a resolution is
passed admitting the member to take his seat, and re-
commending an adherence to the practice of recjuiring the
certificate of the Clerk, of the Crown to the return of the
writ.

By the British North America Act, s. 1 28, every member
before taking his scat must take and subscribe before the
Governor-General, or some person aixthorized by him, the
following oath of allegiance : —

I do swear that I will be faithful and bear

true allegiance to Her Majesty Queen Victoria.

The Clerk is the person usually authorized by tho
Governor-General to administer the oath.

1 R. S. C. c. 13, Sis. 121—123.
3 lb. 8. 83.

2 lb. s. 81.

* lb. ss. 84—99.

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KIJUTION I’KTITIONS.

im;

No ]K’ii(illy is iiicMrii’d l»y a iin’iiihcr who sits or votes
without tJikin^f thi’ oath. In I.S75 alti’iitioii was ciillid to tlic
fact that. Mr Oitoii, MiiiibtT for the Electoral J)istrii’t of
Contru \V^.’lliii^4oii, had sat. ami voted without takiii<( the oath, Thu Coiniuittee of Privileges, to whom the matter was rufurred, held that, as there was no law on the siihjeet, he hud neither incurre(| any penalty mn- vacated his seat, hul that his Votes I'ecorded before takinif the oath should he struck out of the division list and the journals '. Since the year 1 all lu’W meiidx’rs (‘lected after oi’ Intro-
at a Ciencral Election, including Ministt’rs after re-election, MuiubeiH.
have been introduced on taking their seat. Previous to that
year the practice was not uniform. The practical advantage
of a formal introduction is that it secures the administration
of the oath not being overlooked.

The form of introduction is as follows: the new meud)er
standing between two other members is presented to e
Speaker in these words,

“Mr Speaker, I have the honour to present to you A. B.,
Member for the Electoral DLsttict of who has

taken the oath and signed the roll and now claims the
right to take his seat.”

The Speaker thereupon replies : ” Let the Honourable
Member take his .seat.”

The member then advances to the Chair and pays his
respects to the Speaker.

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< .'■I i 1' J 5. Election Petitions. The trial of Election Petitions is regulated by the Dominion Controverted Elections Act ". Any corrupt practice connnitted by a candidate or by his agent, with or without the candidate's knowledge, voids ' Sue Burinot, p. 113. - 11. S. C. c. 'J. m ' ■ ' I 138 THE UOUSE OF COMMONS. II Triiil of Petitions. Appeal. an election. Corrupt practices include bribery, treating, undue influence, or personation. The Act confers jurisdiction to try Election Petitions on the following Courts : in Quebec : the Superior Court of the Province ; in Ontario : the Court of Appeal, and the High Court of Justice of the Province ; in Nova Scotia, New Brunswick, Prince Edward's Island and the North West Territories; the Supreme Court; and in Manitoba : the Court of Queen's Bench of the Province. A Petition may be presented either by a catididate or by any one who had jj, right to vote at the election to which the Petition relates. The Petition is heard before one Judge without a jury and takes place in the Electoral District, to which the return in ([uestion relates, unless the Court is of opinion that the trial could be held more conveniently elsewhere. An Appeal is allowed in Quebec to any three judges of the Superior Court of Quebec or of Montreal, and in the other provinces to the Court of which the Judge trying the Petition is a member. Such Appeal must be limited to a preliminary ob- jection, which, if allowed, would have put an end to the Petition, or to an Appeal from the decision of the Judge who tried the Petition on a point of law '. At the conclusion of the trial the Judge makes his report to the Speaker who communicates it to the House. 6. Officers o*' tue House. The Speaker. The Speaker is elected by the House ^ though aftei his election he proceeds, accom[)anied by the members, to the Senate Chamber to inform his Excellency t.he Governor- » R. S. C. c. 9, 8. 50. ' B. N. A. Act, 18G7, bb. 44, 45. m OFFICERS OF THE UOUSE. 139 General that the House has " elected him to be their Speaker." The choice of the Speaker is not " continned " and " approved " by the Governor-General, as it is by the Crown in England. Up to 1840 the election of the Speaker of the Legislative Assembly in both Upper and Lower Canada was always " approved " by the Governor, but such approval is not essential \ When a Speaker dies or resigns during a prorogation, the House of Commons at the oj^ening of the next Session adopts the English practice of pro-^eeding to the Senate Chamber and asking the authority of the Governor-General to proceed to the election of a Speaker according to law''. The duties of the Speaker are prescribed by Standing Duties of Orders, by the customs of the House, and by English pre- cedents. He presides over all meetings of the House ^, and receives and puts all motions. He communicates to the House all messages received from the Governor-General or from the Senate. If necessary he reprimands members and under the; instructions of the House commits persons to the custody of the Sergeant at Arms. He decides points of order, subject to an appeal to the House, and enforces all rules, and is the official mouthpiece of the House when an address is presented to the Crown or to the Governor-General. If the Speaker from any caus'. I;t'ds it necessary to leave Absruce of the Chair, he may call upon the Chairman of Committees, or in his absence, upon any member, to take the Chair during the remainder of the day\ If the Speaker is unavoidably absent the Chairman of Committees acts as Deputy Speaker ^ The Clerk of the House is appointed by Commission 'ihc under the Great Seal to hold office during pleasure. Ho ^''^'■^^' fS '(I, \i ! ■ 1 See ante p. 114. ■ Buriuot, p. 103. ^ jj j^ ^ ^,,j_ jggy^ ^ ^(^ * l\. S. C. c. 14, 8. 1. s lb, fi. 2, 7 Serjeant at Anns. It If !i 140 THE HOUSE OF COMMONS. acts as rccordcT and keeps the journals of the House. The CUtIc Assistant is appointed by the Speaker to assist the Clerk. The drafting of all public bills, and their revision after passing the various stages are entrusted to the "law clerk". The Sergeant at Arms is appointed by the Crown and acts as the chief executive officer of the House, fulfilling similar functions to those performed by the same officer in the English House of Commons. 7. Internal Arrangements. Each member is provided with a seat and a desk to which is affixed a card with his name. It is the duty of the Sergeant at Arms to see to the allotment of seats. Strangers are admitted to the galleries by tickets dis- tributed to members by the Sergeant at Arms, and to the Speaker's gallery by order of the Speaker. Strangers are not obliged to withdraw when a division takes place, but either the Speaker or the House may order the withdrawal of strangers. 8. Resignation. A member resigns or vacates his seat : (1) By giving notice of resignation from his place in the House. (2) By giving written notice under seal attested by two witnesses to the Speaker, or if there be no Speaker or if the member be Speaker, to two members. No member can resign while his election is contested, nor until the time during which it may be contested has elapsed '. > R. S. C. c. 11, B 12.

KESTGNATIOX.

141

It i

(3) By death.

(4) By accepting certain offices ‘.

The House of Commons on at least one occasion since Expnlsion
the Confederation has expelled a member. Previous to bcrs!’™
the Union the Legislative Assemblies of Lower and Upper
Canada had several times exercised the power of ox-
pulsionl In 1874 Louis Kiel accused of the murder of
Thomas Scott, was expelled as a fugitive from justice, and
when he was returned again in lS7o, a new writ was ordered
to be issued for the election of a new member ” in the room
of Louis Kiel adjudged an outlaw.”

• R. S. C. c. 14, ss. 5—7. See ,tntr, p. 129.
* Sec cases in Burinot, p. 150.

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CHAPTER XIII.

The Senate.

( V

N. W. T.

1. Number.

The number of scricators by the B. N. A. Act, 1.867, s. 22,
was limited to 72, 24 being assigned to Ontario, 24 to
Quebec, 12 to Nova Scotia and 12 to New Brunswick. On
tie admission of British CoUinibia the Order in Council of
the IGth May, l37l, assigned three senators to the province
and thus increased the number to 75. When Prince
Edward’s island was admitted in 1873, no addition was made
to the Senate, but in accordance with section 147 of the
B. N. A. Act, 1867, Nova Scotia and Now Brunswick were
each dejirived of two senators, and the four places thus
obtained were given to the newly admitted province. Mani-
toba by the 33 Vic. c. 3, s. 3, had three senators assigned to
it under the powers conferred on the Dominion Parliament
by the Imperial Act 34 and 35 Vic. c. 28, thus bringing the
mimber up to 78. Any doubt as to the validity of the
addition of senators by the last mentioned act was set at rest
by the Imperial Act 49 and 50 Vic. c. 35, which confers on
the Dominion Parliament full power to make provision for
the representation in the Senate of any new province or of
any territory.

In 1887 a Dominion Act’ provided that the North –
West Territories were to be represented by tv,o senators
possessing the same qualification as other senate irs.

1 50 and ol Vic, c. 3,

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THE SENATE.

143

The 2Gth Bcction of the B. N. A. Act of 1867 empowered Additional
the Crown on the recommendation of the Governor- General,
to direct at any time, that three or six members be added
to the Senate.

In Dec. 1873 the Canadian Privy Council, nominally “in
the public interests,” but in reality to increase the supporters
of the Ministry in the House, advised that an application
be made to Her Majesty to add .six members. The recom-
mendation was forwarded by the Governor-General to the
Colonial Secretary who, under the circumstances, declined to
advise Her Majesty to comply with the request.

“After a careful examination of the question,” said the
Colonial Secretary, “which is one of considerable importance,
I am satisfied that the intention of the framers of the iGth
section of the B. N. A. Act, 1867, was that this power should
be vested in Her Majesty, in order to provide a means of
briiifjinjT the Senate into accord with the House of Commons
in the event of an actual collision of opinion between the
two Houses. You will readily understand that Her Majesty
could not be advised to take the responsibility of interfering
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 whcTC it oould be shewn
that the limited creation of senators allowed by the Act
would apply an aderpiate remedy. This view is, I may
observe, strongly confirmed by the provisions of the 27th
section, which shew that the addition to the Senate is only
to be temporary and that the Senate is to be reduced to its
usual number as soon as po.ssible after the necessity for the
exercise of the special power has passed away’.”

‘ Can. Se83. Pftpers, 1S77, No. 08.

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Age.
Subject.

Property.

144 the senate.

2. Qualifications of Senators.

By section 23 of the B. N. A. Act, 18G7, the qualifications
ro(inire(l of a Senator are as follows : —

1. He must be 30 years of age.

2. He must be either

(a) a natural born subject of tho Queen, or

(b) a naturalised subject.

Nattu’alisation is one of the subjects specifically reserved
to the Dominion Parliajnent, and therefore an alien can only
be naturalised by force of a Dominion or of an Imperial Act
of Parliament. The status of aliens naturalised before the
Union by a Proviiicial Legislature is recognised, a)id such
subjects may be Senators.

3. His real and personal property must be of the value
of 4000 dollars over and above his debts and liabilities.

(a) Of this property a certain minimum amount must
consist of freeholds of which he is seised for his own benefit.
The lands referred to in the Act* are “lands or tenements
held in free and common socage… or held in franc-alleu or in
roture.”

(b) The minimum amount of freehold property is
4O00 dollars and such amount is calculated “over and above
all rents, dues, debts, charges, mortgages, and incmnbrances
due or payable out of, or charged in or affecting the same.”

(c) It is not necessary that the freeholds should be in
the particular Electoral District of the Province for which
the Senator sits, except in the case of Quebec Senators who
are non-ri’sident in the Province of Qiubce*.

4. He nuist be re.side\ ■. in the Provinef for which he is
appoint ed^ The Senators from Quebi e an an exception to

‘ K N. A. A. 8. 23, (31).

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K’lOW.

^ 15. N. A. A. s. 23 (5).

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APrOIXTMENT OF SEXATOHs.

14o

tliis rule, as it is sufficient if uou-residL’iits liave lli.’ nal
pi-operty qualificatiuu in the electoral (U\isiou thi whieli
they are appoiutetl’.

5. Before taking his scat a Senator must subsci’ilx’ tlic
Oath of Allegiance, and make a declaration that he is diilv
([ualificd in respect of ])roperty for sitting in the Senate”.

Tn LS80 a resolution was adopted by the Senate by
which every member is re(piired, within the first twenty
days of the first session of each parliament, to take before
the Clerk in the form prescribed by the B. N. A. Act
18G7, a renewed declaration as to his 2)r()perty (|iia]itiea-
tion.

A Senator is forbidden, under a penalty of 200 dollars
a day, to be directly or indirectly a pai’ty to oi’ conccnied
in a contract with the government, but this is not to affect
a Senator who is a sliareholdei’ in a public company that
has with the governnu’ut a contract not relating to the
building of any public work’.

All fpu’stions relating to the qualification of a Senator
or to a vacancy in the Senate are heard and deternuned by
the Senate”.

3. How ArPOLXTED.

Senators in Canada are not, as in the United States,
elected by the legislatixe bodies in the different .states. Thry
are appointed by the Governnr-Ueneral, but iho (Ion niior-
General in making the appointu>ents is reipiirod to Homin:ite
a certain fixe

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Sciences
Corporation

23 WEST MAIN STREET

WEBSTER, NY MStiO

(716) 872-4503

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150

THE MKTFIOD OF T.KGlSLATION*.

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SesRional
orders.

Amend-
niont of
rules.

Suspen-
sion of
rules.

Com-
mence-
ment of
the sitting

Order of
business.

the Coniinittee practically adopted the rules previously in
force in the former legislative assembly of Canada.

Sessional orders are rules of a temporary nature intended
to govern the business of the session, such as the time of
adjournment or th(,’ presentation of ])a|)crs’; resolutions may
also be passed but their force will e.xj)ire at the end of the
session’.

The rules and standing orders may from time to time
be amended. The amendments are in the first instance
discussed by a Special Committee appointed by the House, of
which C’ vt’nittee the Speaker is always a member, and are
afterward’, considered by a Committee of the whole House’.

The Sen.’ * and House of Commons never permit their
rules and ..; ling orders to be suspended, except by
unanimous ■•.v.-oont though a rule may be repi’aled or
amended by a i.iajority of the members*.

The House of Commons.

The House on days when it is in session meets at three
o’clock*. Twenty members including the Speaker are re-
quired to constitute a quorum”, and if on taking the chair the
Speaker finds that 20 members are not present, he adjourns
the House until the usual hour on the next sitting day^
A count-out rai’ely happens in Canada. Contrary to the
English practice members may enter the House during the
whole time the count is going on*. The Spi-aker reads
a form of prayer adopted by the House in 1877, the
doors are then opened an lb. p. 214.

‘ Burinot, p. 217.

♦ lb. p. 215.

” At G o’clock the Speaker leaves the chair until 7.30.

« B. N. A. Act 18(17, 88. 35, 48. ‘ Com. S. 0. 1, 2.

« Burinot, p. 218. « Com. S. O. 10.

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I’KTrriuNS,

151

are

.8

Presenting petitions.

Readin^ij and receiving petitions.

Presenting reports by Standing and Select Committees.

Motions.

After the routine business come Questions, Notices of
Motion, Private Bills, Government Orders, and Public Bills
but the order in which these matters are taken varies. On
Tuesdays and Fridays Government Notices and Orders take
precedence, on Wednesdays and Thursdays Questions have
the first place, whilst on Mondays the House first considers
Private Bills.

On presenting a petition the member having charge Petitions,
of it is allowed to state the parties from whom it comes,
the number of signatures attached to it, and the mate-
rial allegations it contains. He is not allowed to read
it, though he may have that done by the clerk at the
table. He must endorse his name on it and is answerable
for its not containing any objectionable matter*. The
petition is taken charge of by one of the clerks and after
passing through the Journals’ office, where 1 “s examined
so as to see that it is framed in accordance with the rules
of the House, it is two days after presentation brought to
the table to be read and received. Any member may
oppose the reception of the petition.

By consent of the whole House a petition may be re-
ceived when it is presented, but this course is only adopted
in an urgent case, or where it is advisable to refer it at
once to a Conmuttee”.

The House, following the practice of the English House IVtitions
of Commons’, refuses to receive any petition involving directly ^•” -^'”‘”‘y-
a grant of money, unless it is first recommended by the
Crown*. This does not apply to petitions which are expressed

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‘ Com. S. O. 84—86.
” May, 613.

» Burinot, p. 2(;(».

^ Can. Com. J. 1867—8, ‘2’Jl.

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152

THE METHOD OF LEGISLATION.

Petitions
reKi’iiUiig
Taxes.

Private
Bills.

Public
Bills.

ThlTG

i«;ii(li ags.

in general terms and do not directly ask for public aid
or which ask the House only to take the facts into its
consideration or to adopt such measures as the House may
think it expedient to take.

Up to 1876 petitions asking for imposition of duties
were not received, btit in that year it was thought advisable
to alter the practice and to receive thcni. Petitions also are
received asking for bounties for a particular industry, for
remission on public grounds of taxes or duties, or for
compensation for losses through legislation, but a petition
in which a bounty is demanded for a particular individual, or
which prays for remission of a debt duo to the Crown*
is not received.

Every private bill is initiated by means of a petition, and
such petition is governed by the ordinary rules regulating
petitions.

Oj p’ sition to private bills also is commenced by a
petition.

A ijublic bill may originate in either House, except when
it involves an appropriation of the revenue or imposes a tax”.
The method of procedure in the Senate differs in some
respects from that adopted in the House of Commons, but
both Houses have followed very closely the English practice.
In the Commons a bill passes through seven stages, viz. (1)
Introduction, (2) First reading, (3) Second reading, (4)
Connnittee, (5) Report, (G) Third reading, (7) Passing.

By the standing orders of each House the three readings
are as a ride to be on separate days, except in the case of
bills of an urgent nature*.

The Senate in a case of urgency formally suspends
its standing orders, but in the Conniions it is sufficient for
the House to declare the matter urgent*.

‘ Burinot, p. 2(56.

■I L. N. A. Act, 1807, s. 53.

‘^ Burinut, p. 559.

a See Burinot, p. 268.

* Sen. S. O. 41, 42. Com. S. 0. 43.

IN’THODIHTIOX oF lULLS.

153

?nds
for

Fnti’odiiction. In tho House of Commons ovory bill is Moihufor
nitro(liiC(.Ml M))on imttioii for leavo specitying the title ot
the bill’, and therefore two da}s’ notice must be given”; a
eopy of the bill must be furnished to the .Spi’uker along with
the motion in wi’iting. It is usual for the member in charge
to explain clearly the main provisions of the measure’, but
though there is no rule preventing a debate or forbidding
an amendment, it is not usual to discuss the bill at this
stage.

There are two classes of bills that catmot be introduced
diivctly on motion, but which reijuire to be first considered
in committee — (1) Bills relating to Trade, and (2) Money
Bills.

1. Bills relating to Trade. The 41st standing order of Bills rc-
the House of Commons provides, that all bills relating to tmdo.
trade or to the alteration of the laws concerning trade must

be first considered in Committee in order to give opportunity
for full discussion and a wide notice to persons interested.
There is no such rule in the Senate. The rule applies to
bills affecting trade -‘enerally as well as those relating to a
j)articular trade*.

2. Money Bills. By order 88, it is provided ^roncy
“If any motion be made in the House for any public aid ^””*-

or charge upon the peoj)le, the consideration and debate
thereof may not be })resently entered upon but shall be
adjourneil 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.”

This rule retpiires that money bills shall first be con-
sidered as resolutions in Committee of the whole House*.

» Com. S. O. 39. ” lb. 31. « Buriuot, p. 517.

* May, 530, and see Burinot, p. 519, for cases to which the rule has been
held to be applicp.ble in Canada.

° Apart from tliis such bills must be recommended by the Uovernor-
Uencral, sec pv$t p. 164.

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Money
Bills.

First

154

THE METHOD OF I.KOlSLATIoX.

If a bill contains only some clauKoa involving the pay-
ment of money it may be introduced on motion. The money
clauses (which are not considered to be part of the bill)
go before the Committee and after approval are incor-
porated with the bill: but this co\n’se can be adojited only if
the clauses in question are a subsidiary part of the bill.
” Wheiievi’r the main object of a bill is the payment of
jtublic money it must directly originate in Committee of the
whole or else thi; proceedings will be null and void the
moment objection is taken’.”

The rule does not apply either to clauses imposing
pecuniary penalties or to bills of a declaratory nature’.

A similar rule prevails in the English House of Connnons,
and the principle is extended to bills, relating to Religion
or altering laws i-elating to Religion’.

In the Senate no notice or leave is rcqunod to bring in a
bill. By standing orders 39 and 40 it is provided that

” It is the riglit of evtry Senator to bring in a bill.”
” Inniiediately after the bill is presented it is read a first
time and ordered to be printed.”

This corresponds with the English practice.

First redding. After leave has been given to introduce
Jieadin/j. jj^^. ^,j]i [^ [^ ^t^ad a Hrst time without amendment or debate*.
The Si»eaker then proposes the formal question ” when shall
the bill be read a second time ?” in order that the bill may
be placed on the orders of the day for second reading, a
motion that is usually never opposed”.

Second reading. On the motion for second reading the
Commons discuss the principle of the measure, and it is out
of order to discuss the clauses seriatim. The Senate has an
express rule ” 43, the principle of a bill is usually debated
at its second reading.” As regards amendments the same

Second
Readimj,

‘,.’•

• Burinot, p. 524.

* Com. S. O. 42.

” lb., pp. 525, 526.
° Buriuot, p. 528.

‘ Anson, p. 220

COM.MITTKKS.

155

pmctiei! ))rcvails as in tlic Kn^lish Houso ,»f C’oiniuoiis, the
sccdiid rciuliiii” may hr rcifctctl or an ainon«liinnt may be
cairiL’tl that it be read (Hi next.

It’ the bill bu read a second time, it is then proposed

“that tho House go into Committee on the bill on

next,” but in some cases it is referred to a Select Conunittee
sessional or standing.

Committee. Three kinds of Committees haye been Commit-
established by the Canadian Parliament (1) Connuittees
of the whole, (2) Special Connuittees, and (.S) Joint
Committees.

(1) Committees of the whole are composed of all tho
members and sit in the house itself.

(2) The Special Committees fall into two classes. Special

Coiaiuit-

(a) Standing Committees a))pointed at the commence- ‘
ment of each ses.sion to iufjuire into and report on matters inn Com-
referred to them by tho House and relating to special fixed
subjects.

In the Commons ihose Committees are appointed on the
following subjects:

(1) Priyileges and Elections.

(2) Standing orders.

(3) Printing Public accounts.

(4) Expiring laws.

(5) Railway, canal and telegrajih lines.

(6) Miscellaneous priyate bills.

(7) Banking and Coiiinierce.

(8) Immigration and Colonization.

In the Senate similar Comnuttees are appointed for
standing orders, private bills, railways, telegraphs and har-
bours, and banking and commerce.

It will be observed that some of these Committees cor-
respond to tho two Grand Committees on (1) Tho Courts of

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156

THE METHOD UF LEGISLATION.

(fc) Other
Special
Commit-
tees.

Lav.’ and procedure, and (2) Trade, shipping and nmnufactures
formed by the House of Commons in 1882.

The English Grand Committees are recpiirod to consist
of not less than 60, and not more than 80, members, but in
Canada the standing Committees may consist of any number.
The smaller Committees consist of from 30 to 40 members,
whilst as many as 130 may be on the more in^portant Com-
mittees.

(6) Special Committees arc often appointed to consider
a particular subject, such as trade between different pro-
vinces, criminal law etc.* In the Connnons these Committees
except in special cases’ are, as in England, limited to 15
members, but in the Senate the number is not limited’.

The Commons maintain still the old English rule*, that
a nu.’inber opposed to the principle of a bill cannot serve
on a Select Committee to which such bill is referred. The
18th standing order provides —

“It shall always be understood that no member wlio declares
against the principle or substance of a bill, resolution or matter
to be committed can be noiuiuated of such conunittee.”

A member, who merely takes objection to some particu-
lars of the bill, or who opposes the ap})ointment of the
Committee, is not considered as coming within the scope of
the rule’.

In England the rule no longer prevails: all that is
required is that the members nominated shall be willing to
serve*.
jointCom- (3) Joint Committees are Committees appointed jointly
mittees. ^^ ^^^|^ Houses. Standing joint Committees are usually
appointed to look after the Library belonging to the
Houses and Government printing. Each House appoints a
Committee on these subjects and authorizes it to confer

‘ Burinot, p. 430.
* Lex Pari. 829, 331.

« Com. 8. O. 78, 79.
” Burinot, p. 435.

3 Burinot, p. 430.
» E. S. O. 23.

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rOMMITTKES.

157

itly

with the Coinmittoe of the other House aiul then intorniH
the other Hassi’d with
amendments it is returned with stich amendments attached
to a copy of the bill. The amendments may be accepted,
in which case they are read twice and agreed to forthwith,
and a message retv.rned to that eti’ect. When the amend-
ments arc impoi-tant, a member may propose ” that they bo
read that day — months'” and if such UKjtion be carried,
the bill is practically thrown out, or he may move that the
amendments be disagreed to for certain reasons, in which
case the reasons are ct)mmunicated to the other House. The
practice of holding a Conference is no longer resorted to”,
and if the two Houses cannot agree, the bill must droj) for
that session.

Private Bills.
A Private Bill may be defined as a bill which relates to I’uIjHc and

1 ■ ,• • • 1- ■ I 1 !• 11- I’livate

the uiterests oi pi’ivate nidividuals or oi corporate bodies. Bills.
and does not affect the interests of the community as a
whole. It is somewhat ditiicult to draw the line between

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* Burinot, p. 550.
•’■ lb. pp. 402, 5.ii.

II).

■’ lb. p. 551.

* lb.

100

TIIK MKTIIOD OF T,K(»lSLATIOX.

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J|.< I ; |i Reference to Su- l)reme Court. public and private bills, inasmuch as some bills may relate as much to the public interest as to individual interest. In Canada it rests with the Speaker or with the Coinniitteo to which the bill is referred to decide the class to which a bill belongs. Owing to the restrictions that have been im- posed on the legislative power of Canada, it is possible for a private bill to be introduced relating to a matter not within the legislative comj)etcnce of the Dominion, Some- times the point is raised in the House itself and sometimes in Committee, aiul when it is clear that any provisions of the bill are "unconstitutional," they are alwayi struck out. As a further precaution against passing an ' ilk-gal ' Act, it was provided by the Supreme and Exchecpier Court Act', that the Supreme Court or any two of its judges should 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. A private bill is introduced by petition. As a rule previous to its introduction notice of its main provisions has to be given in the Canadian Gazette and in the local papers. Contrary to the English practice a niember of the House may take charge of the bill and promote its progress. As the rules that govern ordinary petitions apply to a private bill petition, a member during the first ten days of the session presents the petition in his place, restricting himself to a statement of its prayer. It is then referred as a matter of course to the Committee on Standing Orders, who report whether the rule with regard to notice ha;s been complied with. If there has been any informality in the notice the Committee may yet recommend the House to dispense with a regular notice, and it seems the Committee are inclined to adopt this course, where it appears that the parties interested have had suffi- cient notice, and that no interests are affected except those of the petitioners. 1 38 Vic. c. 11. I'RIVATK BILLH. IGl orn a cuts Bent to the lere may )tice, urse, uffi- hose Com- mittco. Where the Committee reports favourably the pctitmn is l^» .v *2n(l 1,1 . 1 • /. • rc.uliiiK". at once presented and leave given to read it a nrst tinu'. On a subsecjuent oceasion it is read a st'cond time, and though at this or any other stage it may be opposed, it is usual to refer it without opposition to a Comni'itee. In England the Committee on a private bill usually consists of four members nominated by a " Committee of S(>l«,’ction.” In
Canada a private bill goes before one of the large standing
Committees according to its class. In ihe House of Com-
mons there arc four such Committees, (1) Standing Orders,
42 members, (2) Railways, Canals nnd Telifgnijli Lines,
136 members, (3) Banking and Commerce, OS members,
and (4) Miscellaneous Private Bills, 70 mei^bi-rs. In the
Senate the Committees are three in numK., (1) Staii’rng
Orders n.^d Private Bills, 3G members, (2) Railwov Tele-
graphs and Harbours, 32 members, and (3) Banks nud Com-
merce, 29 members.

The Committee hears evidence for and against the bill,
following the English practice, and finally makes its report
to the House. If the report is favourable, the bill is read a
third time.

The different stages of a private bill in the Senate In Senate
are practically the same as those in the Commons, but in
the case of Divorce bills which, in accordance with the Cana-
dian practice, are introduced in the Senate, special rules
have been laid down*.

‘ For a more detailed account of private bill legislation see Burinot,
pp. 684—680.

ii

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< Oflico created by LetterH I'atent. Chan^ea RUgKcstcd by Canada. CHAPTER XV. The Governor-General. The office of Governor-Gononvl of Caiiiida creak'd by the Crown by Letters Patunt existed prior to the UiiidU of 1.SG7, but after the Confederation the Letters Patent were revised, and new ones were issued in 1878. The Letters Patent create the office and declare that the person who shall fill the office shall be appointed by Commission under Sign Manual and Signet, and that he shall exercise the powers vested in him by virtue of the Letters Patent and of the Commission issued to him, according to such Instructions as may from time to time be given to him either under Sign Manual and Signet, or by Order in Council, or by Her Majesty through one of the Secretaries of State antl in accordance with such laws as may be in force in the Dominion. When the draft of these Letters Patent was submitted to the Canadian Government, it was urged by the then Minister of Justice that, as Canada possessed more extensive powers of self-government than had been conceded to any other colony, and consisted not of one province but of seven provinces, the widest powers possible consistent with the British North America Act should be conferred on the Governor-General. This principle was practically adopted by the Home Government, and on the appointment of the Marquis of Lome several changes were introduced into the Commission and Instructions, of which the more important were as follows : — ' See Appendix. THE GOVERNOR-GENERAL. 163 litted then isivc iuiy fc'von the the ipted the into ■tant Powers coiiIi'DihI l).y tlu! IjL'tlL'lrt ratent. The clauses (1) relating to meetings of the Privy Council, (2) authorizing the Governor to act in opposition to the advice of his ministers, (3) prescribing certain classes of bills to be reserved for Imperial consideration, (4) dealing with matters within the province of the provincial Legislatures were omitted ; whilst the clause relating to the exercise of the prerogative of pardon was modified so as to draw a distinction between local cases and cases of Imperial interest*. The new Letters Patent'* empower the Governor-General to keep and use the Great Seal of the Dominion ; to appoint all judges, justices, and such other officers as might be ap- pointed by Her Majesty; to remove upon sufficient cause any person appointed to any office by or mider the authority of the Crown ; to sununon, prorogue and dissolve the Dominion Parliament, and to appoint a Deputy. The Letters Patent also make provision for appointing a Lieutenant-Governor or other person to perform the duties of the office in case of the death, incapacity, removal or absence of the Governor- General. The Instructions* refjuire the Governor-General to take Instmc- the oath of allegiance, the oath for due execution of his office, and for due and impartial administration of justice ; and authorize him to administer the oath of allegiance and any other oath prescribed to all persons holding any office : they also empower him to exercise under certain conditions the prerogative of mercy, and lay down certain rules to be observed in transmitting laws to which he has assented or which he has reserved for Her Majesty's consideration. The Commission simply appoints the person selected to Commis- the office. sion. The objec* of the Letters Patent and Instructions is to confer on the Governor-General those powers, necessary ' See Todd, Chap. IV. for a detailed account of these changes. ' See Appendix, where Letters Patent and Instructions are set out at length. 11—2 M '«♦ ii

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Appoints
Henatora.

1G4

THE GOVERNOR-GENERAL.

Appoints
Speaker
of Senate.

Summons
Honse of
Commons,

Recom-
mends
money
bills.

for discharging the duties of the office, which are vested in
Her Majesty, either as being part of her prerogative ])o\ver.s
or under s. 9 of the B. N. A. Act, which declares, that ” the
Executive Government and Authority of and over Canada
is hereby declared to continue and be vested in the Qtieen.”

As above stated the Governor-General is appointed by
the Crown by Commission’. He holds office during the
plea-sure of the Crown, but in accordance with the standing
rule of the Colonial Office his term of service is limited to five
or six years. His annual salary has been fixed at £10,000, and
is payable out of the Consolidated Revenue Fund of Canada*.

The Governor-General is a corporation .sole, and all bonds
and other instruments taken by him in his public cajmcity
are given to him and his successors by his name of office’.

The position of the Governor-General may be considered
as regards (1) the Legislature, (2) Party Government, (3) the
Executive, (4) the Judicature, (5) the Prerogatives of the
Crown, (6) the Provinces, and (7) his Responsibility.

1. Powers as regards the Dominion Legislative.

1. He selects and summons qualified persons to the
Senat3* and fills up all vacancies’. He has also power to
recommend the Queen to add three or six additional mem-
bers representing equally Ontario, Quebec, and the Maritime
Provinces of Nova Scotia and New Brunswick®.

2. He appoints and may remove the Speaker of the
Senate, who must however be a senator’.

3. He summons and calls together the House of
Commons*.

4. He recommends to the House of Commons the
levying of taxes and the appropriation of the revenue®.

* See Appendix for form of Commission.

2 B. N. A. \ct, B. 105. R. S. C, c. 3, s. 2. » R. S. C. c. 3, s. 1.

♦ B. N. A. Act, s. 24. » lb. s. 32. « B. N. A, Act, s. 26, see ante, p. 143.
‘ lb. s. 34. 8 lb. s. 38. » lb. s. 54.

w

LEtJI.SLATIVE POWERS.

165

5. By a clause in the Letters Patent the Crown has
conferred on the Governor-General all jiowers belonging to
the Crown in respect of the summoning, proroguing, or
dissolving of Parliament.

6. He assents to bills on behalf of the Crown.

The position of the Governor-General in regard to
a.s.senting to bills is governed by the 55th section of the
British North America Act 18G7 :—

” Where a bill passed by the Houses of Parliament
is presented 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 Instruc-
tions, cither 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.”

It will be seen from this section that ” subject to Her
Majesty’s Instructions ” three courses are open to the
Governor-General ” according to his discretion,” he may
assent to the bill, or he may veto it, or he may reserve it for
the Queen’s pleasure. It is therefore necessary to enijuire
what Instructions arc usually given to the Governor-General,
and how his discretion in assenting or vetoing is usually
exercised. As regards the Instructions they are silent on the
subject, except in so far as they recpiire him to transmit all
laws assented to or reserved by him, with explanatory observ-
ations in regard to the occasions and reasons for proposing
such laws*.

Previous to the revision of the Instructions in ISTH*
the Governor-General was expressly r<\piire(l not to assent to bills which related to divorce, or granted land or money to the Governor, or made paper money legal tender, or imposed difterential duties, or were contrary to treaty stipu- lations, or infringed the discipline or control of Her Ma- jesty's forces, or affected the Royal prerogative, or contained 1 Sec Instructions in Appendix. ' See anti', p. 162. Summons iinil (lis- solvcfil'iir- liuiuL'Ut. Assents to bills. { 1 1' i\ I I TT i*^ IGG TUE GOVEUNUU-GENEUAL. ;« 'i n 4 II I ;r: >tfl

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Hills ro-
servcd.

Not hnuiul
to follow
uilvici; of
IllilUSt^.•r^.

provisions to which the Royal consent had once been refused,
unless the bill contained a suspending clause, or unless some
urgent necessity existed and the bill was not contnuy to
the law of” England or to treaty stipulations’. Between 18(57
and 1878 twenty-one bills, eleven of these relating to divorce,
were reserved” ; but since the last-mentioned year the Royal
Instructions have not required any bill to be reserved, on the
ground that it was ” undesirable that they should contain
anything which would be interpreted as limiting or detlning
the legislative ])owers conferred in 18G7 on the DtMuiniou
Parlianu’iit^,” and that the reserved power of disallowance
possesseil by Her Majesty in Council” was sufticient for the
protection of Imperial interests.

The Govenior-General may, however, under the section
above (pioted reserve a bill for the signification of the
Qiieen’s j)leasure, in which ca.se it does not become law
until the Governor-General signifies by speech or message to
each of the Houses of Parliament, or by proclamation, that
it ha:s received the a-ssent of the Queen in CounciP.

In exercising his discretionary powers in regard to
legislation a Governor-General has to act on his own
responsibility, and is not bound to follow the advice of his
ministers, though he usually takes this course*. The assent
of the Governor is not conclusive, as a bill, even if assented
to by him, may be disallowed by the Crown’.

But the Governor before assenting ought to satisfy himself
that the bill is within the class of subjects over which
the Dominion Parliament has legislative power.

It is usual for him t < receive from the Minister of Justice or from the Law Officers of the Crown in the Colony a report on bills submitted for his assent, and he may, if y i6 • SesH. J. (1873), 71; Sess. Tap. 18(;7— 8, No 22; Burinot, p. 569. - Burinot, p. 570. 8 Despatch of Secretary for Colonies, Can. S. Pap. 1877, No. 13; lb. 1880, No. 51. ■» See (tiitc, p. 163. s B. N. A. Act, 8. 57. * Todd, p. 137. ^ See pout, c. xxi. M PAUTV UUVEUNMENT. 1G7 1880, the matter be not of purely local concern, reft-r the matter to the Imj)erial Law Officers'. The British North America Act IfSGV is silent both as to the place and manner of giving the lloyal assent, except in the case of bills reserved, where it may be given orally, or by message or by proclamation*. The usnal course adopted is for the Govenujr-General to give the Royal assent in the presence of both Houses. 2. DlTIE.S AS REGARDS PaRTY GoVKRNMKNT. It is the duty of a Governor-General to observe strict neutrality towards the different })arties in the Legislature in regard to all (piestions in which neither the prerogatives of the Crown nor Imperial interests are involved. In all local matters the judgment of the people ex})ressed in their Legislatures nuist prevail, and a Governor-(jencral ought always to accept and act by the advice of a Ministry prepared to give effect to such judgment. 13ut in all (Uiestions involving either Imperial interests or the prerogatives of the Crown, the G(Jvernor-General has to remember that he represents the Crown, and though he is expected to give due weight to the opinion of his ministers, the final decision must be made upon his own judgment and responsibility '. Under special circumstances he may consult Her Majesty's Secretary of State for the Col.>nies, care being
taken that ail sides of the controversy be placed before the
Imperial Govermnent. In 1.S74 the Governor-General con-
sulted the Colonial Secretary as to the advisability of foUinv-
ing the advice of his ministers where thty reconunended that
six additional senators should be added to the Senate”; and in
LS7!) at the suggestion of the Privy Council the advice of the
Home Government was sought regarding the proposed removal
of M Letellier from his ofiice of Lieutenant-Governor*.

1 Todd, pp. 134, 135. = g. 57.

‘ See Todd, p. 591 and authorities there qnotod.

* Todd, p. 10 1. ” See po^t, p. 171, Todd, p. 409.

Milliner
of nivinK
lti>,val us-
Hent.

Notitral
position as
ri’t^aids
parties.

Imperial
iiiterests.

Consult-
ing Home
(iovcrn-
niunt.

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168

THE OOVEBNOR-QENERAL.

Appoints
Ministers.

Removal
of Coun-
cillors.

In matters relating either to the Royal prerogative or to
InipL-rial interests the Governor-General may, through the
Secretary of State for the Colonies, consult the English Law
Officers of the Crown on any (question the legality of which
is doubtful ‘. Such opinion has been sought as to the power
of the Governor-General to create Queen’s Counsel °, and as
to the power of a local Legislature to define its priviloges^

It would not be in accordance with the usual practice fur
a Governor-General to take the opinion of the English Law
Officers on any matter of purely local concern: in such matters
he should seek the advice of the Minister of Justice, or of the
person or persons who in the Dominion correspond to the
Law Officers in England.

3. Functions as regards the Dominion Executi e.

The functions of the Governor-General as regards the
Executive or Administration are regulated partly by Imperial
Acts, partly by Dominion Statutes, and partly by the Letters
Patent and Instructions already referred to. And they may
be summed up by saying that he exercises in the Queen’s
name on her behalf the supreme Executive Power.

The Governor-General selects the members of the Council
appointed under section 11 of the B. N. A. Act to aid
and advise the Government of Canada. The members
of this Council or Privy Council, as it is sometimes called,
form the ministry. In accordance with the well-established
principles of responsible Government the members v.f tlr. ■
Council are selected from that party which enjoys
confidence of the majority of the members of the Houss o
Commons, and the Prime Minister nominates his colleagues.

The Governor-General is empowered to remove members
of the Council, but in practice the ministry resign when they
lose the confidence of the Legislature. By coinmand of the

> C. 0. Regulations. » Todd, p. 241, sec post, p. 172. ‘ Todd, p. 471.

UELATION TO EXECUTIVE.

109

ih

Queen members of the Privy Council after their retirement
are permitted to retain the title ” Hunourablo” for life, and
those who do not belonj^ to the Cabinet for the time being
may be regarded us “honourable” members of the Privy
Council.

By section 15 of the 11 N. A. Act, the Command-in-Chiuf of
the land and naval militia and of all naval and military forces
of and in Canada, is declared to continue and to be vi-sted in
the Queen. The Covernor-General is not therefore the Com-
mander-in-Chief of Her Majesty’s forces, but he may in time
of peace determine the object with which, and the rxtent to
which, Her Majesty’s forces are to be employed.

In 1MG2 the Imperial House of Connnons resolved, that
Colonies exercising the rights of self-government ought to
undertake the main res})onsibility o\’ providing for thuir own
internal order and security, and ought to assist in their own
cxteruiil defence, and in accordance with this resolution
British troops were withdrawn from Canada and the other
Colonies.

In 18G8 the Dominion Parliament passed the first of a
series of Militia Acts in order to provide for the defence of
the Dominion. By the present Militia Act* the command is
vested in Her Majesty, and is to be exercised either by Her
Majesty personally or by the Governor-Cieneral as her
representative.

The Minister of Militia is charged with the administration
of Militia affairs, but p(jwer is given to the Governor-General
in Council from time to time to prescribe his duties”.

As retiunlfi
the Army
ami Navy.

Militia
Act.

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4. Powers as regards the Judicature.

The only judicial functions that the Governor-General is
called on to discharge are to hear in Council any appeal from
any Act or decision of a Provincial Authority affecting any

‘ R. S. C. 188G, c. 41.

‘ See post, c. XVII.

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Appoint-

Illi’llt of

Judnt’s.

Komoval
of Judges.

Exercises
rif^ht of
Pardon.

170

THE GOVKRNOll-GENEIlAL.

rir,’ht or privilcgu c»f a minority, whotlun’ Protustant or Roman
Ciitliolic, of the Queen’s subjects in relation to education’.

The Governor-General ha.s, however, important duties to
discharge in apjunnting or removing judges and in exercising
the prerogative of mercy.

Tlie Judges of the Supreme, District .and Coimty Courts
arc a]tpointed by the Governor-General, excei)t in the case of
the Courts of Probate in Nova Scotia and New Brunswick^
In the province of Quebec the Judges are to be taken from
the bar of that province”; and in Ontario, Nova Scotia, and
New Brunswick they arc to be selected from the respective
bars of thcjse provinces until the laws relating to property
and to civil rights and to the procedure of the Courts arc
made uniform in those provinces’*.

The Letters Patent contain a clause authorizing the
Governor-General to appoint all such Judges, Commissioners
and Justices of the Peace as might be lawfully appointed by
the Cr iwn.

The Judges of the Superior Courts hold office during
good behaviour, but are removable by the Governor-General
on address from tnc Senate and House of Commons’.

The jjower of pardoning offences is regulated by the
Instructions.

“We do further authorize and empower our said Governor-
General as he shall see occasion, in our name and on our
behalf, when any crime has been committed for which the
offender may be tried within our Dominion, to grant a pardon
to any accomplice not being the actual perpetrator of such
crime, who shall give svich information as shall lead to the
conviction of th<' principal offender. " And further to grant to any offender convicted of any crime in any Court or before any Judge, Justice or Magis- trate within our said Dominion, a partlon, either free or 1 B. N. A. Act, s. 93. ■' lb. .s. 98. ^ lb. s. 97. 3 lb. 8. 96. » lb. s. 99. 11. S. C. c. 138. UlGllT Uk' I'AlllJUN. 171 subject to lawful comlitions, or any respite of the execution of the sentence of any such otlendir for such period as to our said Governor-CJeneral niav seem tit, ami to remit any fines, penalties, or forfeitures which may become due and jtayable to us. "Provided al\va\'s, that our saiil C()Vern(ir-(!eneral shall not Coi • (litious. in any case, except where the otience has liecn nt a ]H)litical nature, make it a condition of any ])ardon or remission of sentence, that the otlfender shall be banished from or shall absent himself from our said Dominion. "And we do hereby direct and enjoin that our said Govenu'i General shall not jiardon or reprieve any such offender without fiw.t receiving,' in capital cases the advice of Ailvicc of I'rivv the Privy Coimcil for our said Dominion, and in other cases Cuuncil. the advice of one at least of his ministers ; and in any case in which such panhjii or re]>rieve mii^dit directly affect the
interests of the Emigre or of any country or place beyond the
jurisdiction of the Government of our said Dominion, our
said Governor-General shall before deciding’ as to either
pai’don or reprieve, take those interests specially into his
own personal consideration in conjunction with such advice
as aforesaid.”

It will be observed that a distinction is drawn in these
Instructions between three classes of cases, (1) Capital offences,
(2) Non-capital offences, (3) Offences capital or non-capital
affecting either Imperial interests or those of any country
outside the Dominion. In cases of the first class the Governor- <^ii|'ital General is not to act without receiving the advice of his ministry ; in cases of the second class he must consult one ^'"l^- minister, who will usually be the Minister of Justice; whilst (iffcnce.^. in the third class, in addition to consulting his ministry or f>tT<-nce8 , II- • , iitTcctiiiK one minister as the case may be, he is required to take iiii]nriiil the interests of the Empire or foreign country specially into " ^^^^ ^' account. The Instructions do not in express terms require the i I I ,< in ifi \ h Ji 172 THE UOVERNOR-OENEKAL. |i > > I

|i.J \

Governor-General to act on tlio advice of his niinisters. The
duty of fiiiiilly deciding rests on him alone, but in actual
practice there is no doubt that it would be only under very
exceptional circiunstances that such advice would be dis-
regarded ; and in the correspo idence between Canada and the
Imperial Goverimient ])rior to the issue of the above In-
structions, it was understood that in all cases of a merely local
nature the Governor-General should act on the advice of his
ministers’.

Previous to the issue of the new Instructions, the
Governor-General had felt himself at liberty to disregard the
advice of his ministers, and that with the approval of the
Home Government. In a despatch of Earl Carnarvon to the
Governors of the Australian Colonies’ he .said, ” it is true that
a Governor may (and indeed must if in his judgment it seems
right) decide in opposition to the advice tendered to him.”
In accordance with this principle, in 18G1 Sir Edmund Head,
Governor-General of Canada, granted a reprieve in a case of
murder contrary to the advice of several ministers’; and in
187′) Earl Dufterin commuted a capital sentence on his own
responsibility*.

1 ii

5. PliEROGATIVE POWEKS.

Appoint- As Her Majesty’s re})resentative the Governor-General may

o**” nV appoint Queen’s Counsel. In Lenoir v. Ritchie^ a majority of
Counsel, the Court expressed the opinion, that the sole right of
conferring the rank of Queen’s Counsel belonged to the Queen
or her representative the Governor-General, and that a Province
could not by a statute confer this right on a Lieutenant-
Governor, inasmuch as the Crown was not a part of a
provincial Legislature and therefore no provincial statute
could affect its prerogatives.

1 Can. Seas. Pap. 1H79, No. 181.
” Pattenoii’s Case, Todd, p. 2C9.
» 3 Can. «. C. li. 575.

3 May 4th, 1875.

* Lepine’s Case, ib. p. 209.

Al’I’i )INTS Lli:i’TENANT-UOVEUN(JUS.

173

0. PoWKKS AS REGARDS THE PROVINCES.

Lioutc’iiant-Uovernors of tho Provinces are a|>j>oiiite(l by
the (iovernor-(ifii( ral in Coitneil by Coiniius.siuii uiidcr the
(treat Seal <»t" Canada. In ea.s(' of the ah.scnee, ilhicss or other inahilitv <»f the ljieutenant-(iovernor, the (iovernor-Cieneral may appoint an aihnini.strator to "xecute the duties of the oftiee '. By section 59 of the Hritish North America Act a riieutenant-Governor i.s not " reino'.ible within five years from liis appointment e.xce])t for can.se assigned, which shall be communicated to him in writing witliin one month after the order for removal is made, and shall be communicated by message to the Senate and to the Fb>use of Commons within
one week thereafter if the Parliament is then sitting, and if
not, then within one week after the commencement of the
next .se.s.sion of the I’arliament.” The .section is .silent as to
thi’ circumstances under which the removal of a Lieutenant-
(Jovernor would be justifiable, but the Letellier case may be
taken to have established the rule that the Governor-General
ought to act by and with the advice of his ministers. The
facts of the case were shortly these”: — In IST.S the Lieutenant-
Governor of Quebec, M. Letellier, (lismis.sed his ministers on
the ground that they had acted contrary to his representa-
tions, were encouraging a lavish expenditure in regard to
railways, and had ])romoted a bill which he deemed to be an
arbitrary and illegal infringement of vested rights. The
subject was brought before the Governor-General by b. 1 I

!

2 CO.

‘ For form of Commission, see Can. Sess. Journ. 1878, p. 175.
* See Todd, p. 405, for a more detailed account.

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1.

171

THE (iOVEllN’on-iJKNKRAL.

Disallow-
ance of
Provincial
Bills.

Debates iiisiicfl in Imth Housch. A motion (iL’cliirin)^ tlif
(lisinissiil of the iiiiiiistry tolx’ at variance with (‘onstitnlional
government was carried in the Senate l»iit lost in the llonse
of Commons. In the following’ year a new Parliament
usH(‘ml)h'(l and both liouseH agreed in censuring the j of the whole
Dominion •)r not; hut also whether it he unconslitutioiial,
whether it exceeds the jurisdi(‘ti(»n conferred on j.ocal Le^’is-
lutures, and in cases where the jurisdietioM is cdMcurrent
whether it clashes with the leifislation of I lie (leneral
Parliament, as it^ is of iiii]Mirtaiice that tlii’ coiu’se of local
le;,’isl,ition should he interfered with as little as possihle and
the power of SS2, and a leply had been received from
the ijiuutcnaut-Cjovenior enclosint,’ a menioranchun of his
Executive Council passed in a Council on the JjOth January
ult., stating that no aniondnient has been made in the Act noi-
ls it in contemplation to make any amendment thereto.

“That thep; is no object any longer deferi’ing action in
this matter.

“The Minister recommends that unih’r thes(.’ circumstances,
and fo. the reasons comnnuiicated in the first mentioned
report, that the Act of the Cleneral Assembly of (he I’rovincc
of Xew Brunswick, ])assi’d in the year l.SS-2, c. 00, and
entitled ‘an Act to incorporate the Fredeiicton and St Mary’s
Bridge Comjtany’ be disallowed; the Committee advise that
the Act be di.sallowi’d accordingly.”

The ])ower of disallowance has been exercised in a
comparatively small nund)er of caises. Of the GOOO Acts
passed by the provincial legislatures up to 1882 only .”;} have
been disallowed, viz. in Ontario 5, Quebec 2, Nova Scotia 5,
Manitoba 7, British Cohunbia 12\ That the Dominion
government are con.scious that the power of disallowance
ought to be exercised with great cai-e and caution is
evidenced by the ro})orl. ..f the Privy Council on the dis-
allowance of cert.iin Acts of Manitcjba in 1885.

“The Committee, whilst concurring in the report of the
^linister of Justice and humbly advising your Excellency to
disallow each ani li

mr

m

tl

178

TU K ( i O VEKNOK-G liN EK A L.

Disputes

iHKarding

disallow-

ance.

Form of
disallow-
uucc.

the coininoii wciil is set at iiiiught, and local legislation
enacted leading indirectly, and directly too, to its frustration,
the Coniniittec of the Privy Council conceive that they are
compelled by their duty to Parliament, hiunbly to advise
your Excellency to use the power in (jucstion’.”

It is in regard to Acts coming under the fourth class
referred to in the report of 8ir J. A. MacDoiiald above (pKited,
viz. Acts affecting the interests of the Donunion g(?nerally,
that difficulties have arisen and the governor’s veto has been
challenged. In 1881 an Act of the Legislature of Ontario was
disallowed on the ground that it violated private rights
without making any adequate conipensati(»n. The Govern-
ment of Ontario })rotested, and maintained, that no Act should
be disallowed which it was legally competent for a provincial
legislature to pass^ More recently the legislature of Mani-
toba passed several Acts authorizing the construction of
railways in the province with the object of opening up
communication wdth the United States, and these Acts were
disallowed as conflicting with the settled policy of the
Dominion cmb(j(lied in the agreement with the Pacific
Railway, viz. that for 20 years no line should be authorized
to within 15 miles of latitude 49′ or south of the Pacific
Railway except such line runs south-west.

The disallowance of an Act is notified in a foi-ni as
follows : —

GOVEKNMKNT HoiWK, OTTAWA,

2i Jiihj, 18S3.

” Present, His Excellency the Governor-General in Council.

“Whereas the Lieutenant-Governor of the j)rovince of
New Brunswick has reported that the Legislative Ccjuncil and
General Assembly of that province did, on the 6th A])ril, 1882,
pass an Act which has been transmitted, intituled as follows :

L. ‘» .

1 Can. Sess. Pap. IHSo, No. 2!t, p. 14.

– Can. Hess. Tap. 1882, No. 1411 a.

” Can. Sess. Pap. 188’2, No. IGfi, and scc^nisf, c. xx.

UUC’ll.

cc of
and

SS2,
lows :

HIS rvKSruNtSllilLlTV,

171)

“uii Act to incor[)oiaLe tlio Fredoricttm and Si, Mary’s
IJridge Company ”

And wlieivas the said Act lias been laid botorc the
(iovL-rnor-Gentral in Cctuncil, together with a report from the
acting Ministtn- of Jnstice, recommending that the said
Act shonld be disallowed, His Excellency tin; (Governor
General has therenpon this day been pleased by and with the
advice,” of the Queen’s Privy Council for Canada to declare
his disallowance of the said Act and the same is disallowed
accordingly. Whereof the Lieutenant-Governor of the Pro-
vince of New Brunswick, and all other persons whom it may
concern, are to take notice and govern themselves accordingly.”

Resi’OXsiiulity of the Goveunou-Gexeral,

The Governor-General is not responsible to the Dominion To the
T-. ,. p . , , . 1 , . ,. Colony.

Parliament tor either his conduct or his policy: all such

responsibility must be assumed by his ministers under whose
advici! he is presumed to act. It would therefore be uncon-
stitutional for a colonial legislature to pass a vote of censure
upon a governor unless indeed as preliminary to an address
to the Crown to remove him’.

The Governor-General is however responsible to the To the

1-1 1 • 1 IT ■ 1 II !• Crown and

Crown, which may remove him, and to the Imperial Parliament, Parlia-

which may pass judgment on his acts. In LSGG the Governor ‘”™”

of Victoria, Sir Charles Darling, was recalled on the ground

that he had departed from a rigid adherence to the law, in

collecting duties, in contracting a loan and in paying salaries

without the sanction of law. The course ])ursued by the

Colonial Secretary was fully ajjproved by the Imperial

Government”.

Though the Governor of a Colony represents the Sovereign To Law.

for many purposes, and exercises all the prerogative powers

conferred either on the office by letters patent or on himself by

1 TocUl, p. 11.

– lb. p. 105,

12—2

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i I. ‘

1 ‘

180

THE (iOVERNOli-GEN EK A L.

For State
Acts.

For Acts
not within

authority.

stutvito, and hy the Instructions accompanying liis Connnission,
yet he (Iocs not fnjoy the privilege of conij)lete exemption from
legal liability. For all acts done under and within the limits
of the authority confided to him the representative of the
Sovereign is protected, ” because in doing them he is the
servant of the Crown and is exercising its sovt-i’eign autho
rity’;” aiid hence, where an action was brought against the
Lord Lieutenant of Ireland for an alleged illegal seizure
of property, the Irish Court of Conunoii Pleas held, that as
the act ccjmplained of was an act of state done by the Lord
Lieutenant as such, the action would not liel

On this principle the Governor of a C«»l Apj). C’jis. lO’i, I’J L. J. V. C. 20.
” Luhij V. Lord Woilehoiine, 17 Ir. Com. L. 1). (ilS.

■> Seo Wiiijht V. Fituja-dld, 27 St. Tr. 7ti5. Itoport of li. v. Hyre by
Fiiilason : Broom’s Constitutional Law, 2nd Ed. p. (iaH.

* r. C. in Miisifrtivf v. Piilido, 5 App. Cas. 102, 1′,) L. J. P. C. 20.

ins RKSPOXSTniLITV.

181

For acts not within his authority’ civil or crimiiijir’ pro-
ceedings maybe taken. By the 11 A 12 Will. III. c. 12,
criminal proceec liners are to bo tried in the Court of Kinrr’s
Bench.

In the f()ll(<\vinf( chapter the circnmstanccs nndor which the Governor-General is bound in exercisin,£r his legal powens tn follow the advice of his Ministers will be more fully discussed. ' Hill V. JHfnir, 3 ^[oo. I'. C. U\r>. V„hri,,„^ V. Moxhi,,, 20 St. Tr. Hi ;
Cowpcr, ICil.

– A’. V. I|-a//, -28 St. Tr. r,l.

i^>.:-

/’t

i\

I

I ‘

^3

§ ■ ■ .1

Ml < II Number. CHAPTER XVI. The Privy Council. The B. N. A. Act, s. 11 provides for the appointment of a Council to aid and advise the Govornor-Cieueral in the government of Canada. This Council corresponds to the Cabinet in England and is styled the Queen's Privy Council for Canada. A distinction is growing up in Canada between Privy Councillors, who are members of the Cabinet and Honorary Privy Cotnicillors, who are not in the Cabinet, inas- much as by command of the Queen, a Privy CouncilK)r after he retires from ofHce is entitled to be termed " Honourable " for life. Strictly speaking however these " honorary " mem- bers are not in law members of the Council. The Privy Council in 1887 consisted of 14 members, viz. : The President of the Council. The Secretary of State. The Minister of the Interior. The Minister of Justice. The Minister of Marine and Fislu'rii's. The Postmaster-General. The Minister of Public Works. The Minister of Railways and Canals. The Minister of Finance. The Minister of Customs. The Minister of Militia and Defence. The Minister of Agriculture. The Minister of Inland Revenue. One Minister without portfolio. Tin: I'liivv corxciL. 183 In 1887 Act.s' were \)assv(\ by tlie Caiiudiaii Pailiainont for the iv-or^raiiizatioii of certain (k-partments. Under these Acts a department of Trade and Commerce presided iner In- a minister is to be organized : the departments of Custonis and Inland Revenue are to be consolidated: and ]to\vi'r is given to appoint a .Solicitor-General. The members of the Council are chosen by the Governor- (Jeneral and may be removed by him". No k-gal restrictitms are placed on his choice, and the number of the Coi-ncil is not limited. In practice the Governor-General in appointing Privv Councillors is guided by several important constitutional rules. The members chosen are selected from that party which pos.ses.ses the contidence of the legislature, more es- pecially of the House of Conunons. 'J'he leading member of that party is recpicsted by the Governor-General to form a ministry, and the Governor-General acce])ts as members of the Council tho.se selected by him. The councillors usually have seats in the Upper or Lowt'r House but the majority belong to the House of Conimon.s. There are .some ])oints in which the constitutional practice is different in Canada from what it is in England. The claims of the several provinces to representation in the Cabinet are sometimes recognised, and in the tinst Privy Council fiv rejjresentatives were assigned to Ontario, four to Quebec, t\v to Nova Scotia and tvvo to New Brunswick. Again the Attorney-General acts as Minister of Justice and sits in the Cabinet. Arguments have been bi-ought forward in Canada and in other colonies to shew that the office ought to be non-politicaP, but the necessity of having some one in the Cabinet having a .special knowledge of law and of the Constitution has been so much felt in Canada, that the Attorney-CJeiieral is not merely retaine Todd, p. .}.•;.

::f

;i[

i

I

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•■ i

(V 1

ifW

184

THK I’lUVV (‘(HN(il..

Each

iiinnibpr

liic’sidcs

over ti

(l(‘|ini’t-

ment.

iSulnrv.

Vacation
of seat on
iil)poiiit-
iimnt.

Ciibiiict, but is often railed u|i()ii to take’ the position of
premier. As a iiilt- lie does not take private practice.

To each niend)er of the Privy Council it is nsual to assi^nj
the a(hninistiati(»n of a departiiu’nt. But in ( anada as”^n
England there may he a minister ncjt holding a ])ortfolio.
All the heads of Departments are not necessarily members of
the Cabinet. In 1S07 the nnniber of Privy Conncillors vva.s
thirteen, bnt since then the nundn’r has lre(|nently varied
owing to re-organization of departments.

Each Minister receives a salary of 7000 dollars per annnm,
and the member of the Council who holds the position of
Prime Minister receives an additional sum of 1000 dollars per
annum’.

On being appointed a Privy Councillor a Senator does not
vacate his seat, bnt a member of the House of Conimons
does so though he is eligible for re-election”’.

In its first session the Dominion Parliament, in ordi’r
to preserve the independence of its members, re-enacted a
previous act^ disqualifying all persons holding any office
luider tlie Crcjvvn to which a salaiy was attached” from sitting
in either house. Members accepting seats in the Council did
not come under this rule, but they were required to be re-
elected °. A further act was passed in 1S7.