[From the Journals, 1854-5 :— Mr. T. Brodeur, member for Bagot, refused to obey the order of the House, which directed him to be examined as returning officer, touching the Bagot election. He was taken into custody and placed at the Bar, but having answered the questions, put to him by the House, was discharged.]

A peculiar case was that of Mr. J. Gleason, because the House took cognizance of a matter that was an offence at law. For his conduct in sending a challenge to Mr. N. Casault, M.P.P., a member of the Bellechasse Election Committee, Mr. Gleason was placed at the Bar; but on his petition expressing his sorrow and praying the indulgence of the House, he was discharged from custody. (Journals, 1854-5.)

In re the Lotbinière Election of 1858. James McCullough, for having disobeyed the order of the House to attend and give evidence touching the election for the County of Lotbinière (1858), was placed at the Bar. He was examined. Motion that J. McCullough, Poll Clerk, and George Coté, Deputy Returning Officer, for the parish of St. Sylvestre, are guilty of a gross fraud and breach of Privilege in being privy to the fraudulent registration on the poll-book of fictitious names, &c. Both were found guilty and committed to gaol during pleasure. Coté was discharged on May 12th, but McCullough was kept in prison until the 6th of August, 1858, when he was liberated by the Speaker's warrant, directed to the keeper of the common gaol of York and Peel. (Journals, 1858.)

The next case in point is the Saguenay Election. M. McCarty, A. Guay, L. Lavoie, and E. Tremblay appeared at the Bar to answer for their conduct at the election. They were severally found guilty of a breach of Privilege, having been privy to the fraudulent inscribing of names on the poll-books for the parishes for which they were

For further notice of this case see infra.

The last noticeable case in which the late Legislature of Canada vindicated its right to punish breach of its Privileges, was in 1866, in regard to an assault committed on one of the members. The sentence was that the assailant should be reprimanded, and committed to the custody of the Sergeant-at-Arms, during the pleasure of the House. During the existence of Lower Canada as a separate Province, there were several occasions on which its Legislature imprisoned for breach of Privilege; but space forbids special reference to more than two of them, in another place.

We have seen how the Legislatures of Upper Canada defined and maintained their privileges. Let us now see in what light the Jurists regarded these claims. We shall take the case of MacNab v. Bidwell and Baldwin, as reported in Draper's King Bench Reports, Easter Term, 1830; pp. 144-158. It has been already noticed.

The Court held that the House of Assembly in this Province have a constitutional right to call persons before them for the purpose of obtaining information; and if the House adjudge the conduct of such persons in answering or refusing to answer before a Select Committee to be a contempt, they have the right of imprisoning them.' The charge was trespass and false imprisonment against the Speaker, and another member of the House of Assembly, Mr. Baldwin. Chief Justice, the Hon. John Beverley Robinson, in delivering judgment, said, amongst other things:

I cannot see upon what sound principle the power of the Assembly can be denied. Then, if a priori, and independently of precedents, such a body as the House of Commons must be armed with authority to commit for contempt, and thereby to remove any immediate obstructions to its proceedings, I think the same power, for the same reasons, must be admitted to reside in the House of Assembly here: for that Assembly represents all the people in this Province; it has, in conjunction with the other branches of the Legislature, power to bind the lives, liberties and estates of all the inhabitants of this country. (The italics here, and elsewhere in this decision, are our own.)

Although the Legislature of this Colony is subordinate to the Imperial Parliament, it is the supreme power acting in this Province; its legislative authority extends to the most important objects, and the instances in which it is restrained, are, perhaps, not those of the greatest and most immediate consequence for the welfare of society. If a legislative body with such powers, and established for such purposes, had not also the power of giving effect to their consultations, by protecting themselves from insult, and removing obstruction from their proceedings, I am not certain that more injury than good might not be found to result from the Constitution conferred upon us; and I cannot satisfy myself, upon any reasoning, that it is not as important for us as the people of England that our Legislature should not be compelled to make laws in the dark, and that they should have power to inquire before they come to decide.

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the situation of Speaker; and if it could be sustained against the other, certainly that would be an end of an independent exercise of the will and judgment upon constitutional questions by the members of that body.

'The true point of view in which to regard the question is, that these powers are required by the House in order to enable them to promote the welfare of their constituents; we are bound to suppose that they will use them with discretion and for good. ends, and, if we had the power, we should have no right to withhold them,. on the assumption that they desire to pervert the objects of their Constitution.'

Judgment for defendants.

We shall now glance very briefly at two of the instances in which the Legislature of the Province of Lower Canada claimed and asserted its privileges. During the Session of the Provincial Parliament of Quebec, in 1817, Samuel Wentworth Monk was committed by the Assembly to the common gaol of the district, during pleasure, for a contempt: refusing to produce certain registers and documents before the House, or one of its Committees. A Special Committee was appointed to examine into the precedents for such commitments. They cited, amongst other cases, that of the Legislature of Jamaica, which attached the person of Major-General Carmichael, the officer in command of the Forces, and brought him to the Bar of the House, to give evidence as to the proceedings before a Court Martial.

The Parliament of Quebec was prorogued on the 22nd day of March, 1817, and, on that day the Court then sitting for the trial of crimes and criminal offences-on motion, granted a writ of habeas corpus, and the above cause of detention being returnable, it was moved that Samuel Wentworth Monk be discharged. The Court,.

without determining whether the detention of Mr. Monk was legal or illegal, whether the warrant by which he was detained was accurate or inaccurate, discharged him upon the ground that the period for which he was committed had expired. (Stuart's L. C. R., pp. 120-121).

But it was not in the case of the popular and elective branch of the Legislature alone that the Canadian. Judiciary, in times past, admitted and -confirmed the claims for Privileges. In the case of Daniel Tracy, reported in Stuart, L. C. R., pp. 478-517, the Court held that the Legislative Council has a right to commit, for breach of Privilege or in cases of libel; and the Court will not notice any defect in the warrant of commitment for such an offence after conviction.' The libel was published in the Montreal Vindicator of the 3rd Jan. 1832.

The same order was entered in the case of Ludger Duvernay, brought before the Court by another writ of habeas corpus, upon a conviction by the Legislative Council on the 17th of January, 1832, for a similar breach of Privilege, in publishing in the paper, La Minerve, on the 9th Jan., 1831, a libel upon that branch of the Legislature. Justice Kerr, in the course of his remarks, observed: But it has been argued by the defendants' advocate that the Legislative Council has acquired no such power, (that of the House of Lords, in the matter of Privilege), by immemorial custom and usage, and that the Parliamentary Charter of the year 1791 confers no such authority upon it. I certainly admit that this body does not possess, like the House of Lords, a right to fine and imprison beyond the Session, nor so extensive Privileges as the Lords and Commons possess. But can the exercise of the power of proceeding summarily and committing for a libel against the Legislative Council, as an aggregate body, be refused to them without their sinking into utter contempt and inefficiency }

And whether a political institution is vested with the authority to make laws, or to explain and enforce them, it must of necessity possess all the powers requisite to ensure the purposes for which it was created. The counsel for

the defendants appear to consider the Privileges of both Houses of Parliament, of punishing for contempt, to be derived from the Aula Regis, which exercised all the authority of a Supreme Court of Justice; but the Ecclesiastical and Admiralty Courts, which do not derive their jurisdiction. from the same source, exercise the same right of punishing summarily all contempts committed against their dignity and authority.'

Justice Bowen, in pronouncing his decision said, amongst other things: 'Looking at the Act, 31 Geo. III. cap. 31, we find that the Provincial Legislature is empowered 'to make laws for the peace, welfare, and good government of the Province;' and in no part of this Act is there any mention of what shall be the Privileges of either branch of the Provincial Legislature; but it is certainly true that the framers of it intended to confer upon the Provinces of Upper and Lower Canada a Constitution modelled, as far as circumstances would permit, precisely upon that of Great Britain. It has been well observed by Sir William Blackstone, treating upon this very subject, 'that the Privileges of Parliament are large and indefinite; that if all the Privileges of Parliament were once to be set down and ascertained, and no Privilege to be allowed but what was so defined and determined, it were easy for the Executive Power to devise some new case, not within the line of Privilege, and under pretence thereof, to harrass any refractory member and violate the freedom of Parliament; the dignity and independence of the two Houses are therefore in great measure preserved by keeping their privileges indefinite.

'Besides, by the conviction before

us, the Legislative Council have done no more than the House of Commons has invariably done upon similar occasions-imprisoned the offender during the Session of the Legislature, and in doing so have exercised a power which, during a period of nearly forty years has been frequently exercised by the Assembly of this Province.

That these Privileges

have likewise been acted upon by other Provincial Legislatures, and have been recognised by the highest authority, may be seen by the Journals of the Assembly of Jamaica, in 1808, in the case of Major-General Carmichael.

"This Province enjoys a Constitution similar to that of England, in virtue of a particular Statute, it is true, to make laws for the welfare and good government of the Province. Although the Statute mentions only this power, it does not deprive the Colonial Legislatures of their powers which are inherent and necessary for bodies constituted to perform their duties with liberty, independence, and for the general good.

If in England this power is recognised as inherent in the Constitution, that is to say, as a Parliamentary law, necessary to the independence of their bodies, as a law of the country, it exists in this country. In granting us the Constitution, Great Britain has given us the laws to protect it. Although the Constitutional Act maintains but certain particular duties, this does not deprive the Colonial Legislature of other powers which are enjoyed by the other Colonies, where Constitutions are only established by Charter; indeed the Provincial Legislature has performed other duties inherent in the Imperial Parliament, and the right of doing which cannot be denied to our Provincial Legislature, although not mentioned in the Constitutional Acts; and their duties are also of high importance, and required power and independence of a Constitutional character to fulfil them. These rights have been

claimed and exercised in this country since the commencement of the Constitution.' (The italics in the foregoing, are in the Report.)

The case of Lavoie (see above), was the only one of importance, which during the existence of the Parliament of the late Province of Canada, was contested before the courts.

'Lavoie was committed to gaol by the House of Assembly of the Province of Canada, on the warrant of the Speaker of the House, for the space of ten days, for breach of the Privileges of the House, in that, as Deputy-Returning Officer, he had connived at and been guilty of gross fraud,' etc.

The court held, on his petition for a writ of habeas corpus, that such malversation of office was a breach of the Privileges of the House, and that the House had in such case the power of determining judicially all matters touching the election of its own members, including the performance of the duty of those officers who are entrusted with the regulation of the election of its members; and further, that the Courts of Law could not enquire under such a commitment, nor discharge nor bail a person so committed; yet, as the commitment did not profess to be for a contempt, but was evidently arbitrary, unjust, etc., the court would not only be competent, but bound to discharge the person.' (Stephens' Quebec Law Digest, pp. 922 923.)

We have now done with the illustrations of the claims of the Provincial Legislatures of Upper, Lower, and United Canada. Enough has been brought forward to prove that they were not mere automata, created by the Constitutional and Union Acts, and gyrating in limping and aimless. impotence in the narrow circles of a statute law. Proof has been given that these old Legislatures were something nobler and more powerful than the mere letter of the Acts which gave them a legal and technical claim to exist. Our Canadian Courts, always