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called on for his defence, which he | against the King and the House of makes accordingly, Motion, that Mr. Lords, and, when necessary, against MacNab be discharged ; amendment, popular prejudice, that our parent that he be committed to York Gaol country owes her liberties and the during the pleasure of the House, car best principles of her Constitution. ried. The Speaker submits a warrant They must be as necessary for the of committal, which is approved by protection of the subject and the the House. Mr. Speaker reports a preservation of liberty in this Proletter from Mr. MacNab relative to his vince, as they ever have been in Engimprisonment. Order, that he beland. They should be guarded and discharged. Mr. Speaker submits a supported, therefore, with the same warrant for his discharge, which was vigilance and resolution here as they approved of.
have been in that country-whose ex[From the Journals, 1829 :
ample it is our pride and duty to
follow. Mr. Henry John Boulton, Solici
* tor-General : For a high contempt and
'Finding, from your answer, that breach of the Privileges of the House,
you are now disposed to treat its Priin objecting to answer questions put vileges with just and becoming respect, to him by the Committee on the
and to defer your own private opinion Hamilton Outrage. He is placed at
to the judgment of that body whose the Bar, and makes his defence. He
constitutional right it is to decide upon is admonished and discharged. Order,
its own Privileges, it is willing to disnem. con., for placing on the Journals
miss you with no other punishment what Mr. Speaker (Bidwell) said in than this admonition from its Speaker. admonishing him.'
This moderation is a proof that these The Speaker, in his admonition to Privileges have been safely lodged by the Solicitor-General, amongst other the Constitution in its hands, and that things, said :
they will never be used in a wanton The privileges of the House of As
or oppressive manner.'l. sembly, which you have questioned, Now for a few illustrations of the have been given to it by the Consti manner in which the Parliament of tution, and for wise and useful pur the late Province of Canada asserted poses. They are necessary for the and vindicated its privileges, in its preservation of its rights and the per endeavours 'to make laws for the formance of its most important duties.
peace, welfare and good government' It is the Grand Inquest of the Pro of the country. vince. It is not merely allowed, but bound, to inquire into all grievances
[From the Journals, 1854–5:and abuses, and to remedy them; In re the Argenteuil Election.—D. especially those which, from the G. Lebel, Deputy Returning Officer for rank, influence, or number of delin St. Hermas, was summoned before quents, or from any other circuni the Bar of the House to give an acstances, the ordinary tribunals of count of his conduct at the said elecjustice cannot fully and promptly re tion. Leave was given him to prodress. These privileges, therefore, are duce witnesses. He was declared necesary for the protection of the guilty of a breach of privilege in people and the welfare of the country. closing the poll several hours before
'It is to the spirit and firmness the time prescribed by law, without with which the House of Commons any adequate reason therefor, and was. in England has unon all occasions as. committed to gaol for twenty-four serted and maintained its Privileges | hours.
[From the Journals, 1854–5 :- respectively Deputy Returning Offi
Mr. T. Brodeur, member for Bagot, cers, and were committed to gaol for refused to obey the order of the ten days. The Speaker reported that House, which directed him to be ex an application had been made to the amined as returning officer, touching Courts, on the part of Lavoie, for a the Bagot election. He was taken writ of habeas corpus... (Jours. into custody and placed at the Bar, 1854-5.) but having answered the questions, For further notice of this case see put to him by the House, was dis infra. charged.]
The last noticeable case in which A peculiar case was that of Mr. J. | the late Legislature of Canada vindiGleason, because the House took cog- cated its right to punish breach of nizance of a matter that was an its Privileges, was in 1866, in regard offence at law. For his conduct in to an assault committed on one of the sending a challenge to Mr. N. Casault, members. The sentence was that the M.P.P., a member of the Bellechasse assailant should be reprimanded, and Election Committee, Mr. Gleason committed to the custody of the Serwas placed at the Bar ; but on his geant-at-Arms, during the pleasure of petition expressing his sorrow and the House. During the existence of praying the indulgence of the House, Lower Canada as a separate Province, he was discharged from custody. there were several occasions on which (Journals, 1854-5.)
its Legislature imprisoned for breach In re the Lotbinière Election of of Privilege ; but space forbids special 1858. James McCullough, for having | reference to more than two of them, disobeyed the order of the House to in another place. attend and give evidence touching We have seen how the Legislatures the election for the County of Lot of Upper Canada defined and mainhinière (1858), was placed at the tained their privileges. Let us now Bar. He was examined. Motion that see in what light the Jurists regarded J. McCullough, Poll Clerk, and George these claims. We shall take the case Coté, Deputy Returning Officer, for of MacNab v. Bidwell and Baldwin, the parish of St. Sylvestre, are guilty as reported in Draper's King Bench of a gross fraud and breach of Privi. Reports, Easter Term, 1830 ; pp. lege in being privy to the fraudulent | 144-158. It has been already noticed. registration on the poll-book of ficti The Court held that the House of tious names, &c. Both were found Assembly in this Province have a conguilty and committed to gaol during stitutional right to call persons before pleasure. Coté was discharged on May them for the purpose of obtaining in12th, but McCullough was kept in pri- | formation; and if the House adjudge son until the 6th of August, 1858, the conduct of such persons in anwhen he was liberated by the Speak swering or refusing to answer before er's warrant, directed to the keeper of | a Select Committee to be a contempt, the common gaol of York and Peel. they have the right of imprisoning (Journals, 1858.)
them. The charge was trespass The next case in point is the Sague and false imprisonment against the nay Election. M. McCarty, A. Guay, Speaker, and another member of the L. Lavoie, and E. Tremblay appeared | House of Assembly, Mr. Baldwin. at the Bar to answer for their conduct | Chief Justice, the Hon. John Beverat the election. They were severally ley Robinson, in delivering judgment, found guilty of a breach of Privilege, | said, amongst other things :having been privy to the fraudulent ... 'In a case, then, of contempt, inscribing of names on the poll-books | so clearly and directly alleged on the for the parishes for which they were | pleadings, and resolved by the House, I cannot see upon what sound princi- , the situation of Speaker ; and if it ple the power of the Assembly can be could be sustained against the other, denied. . . Then, if a priori, certainly that would be an end of an and independently of precedents, such independent exercise of the will and a body as the House of Commons must judgment upon constitutional quesbe armed with authority to commit tions by the members of that body. for contempt, and thereby to remove any immediate obstructions to its pro
"The true point of view in which to ceedings, I think the same power, for
regard the question is, that these the same reasons, must be admitted to
powers are required by the House in reside in the House of Assembly here :
order to enable them to promote the for that Assembly represents all the
welfare of their constituents; we are people in this Province; it has, in con
bound to suppose that they will use junction with the other branches of
them with discretion and for good the Legislature, power to bind the lives,
ends, and, if we had the power, we liberties and estates of all the inhabitants
should have no right to withhold them, of this country. (The italics here, and
on the assumption that they desire to. elsewhere in this decision, are our
pervert the objects of their Constituown.)
tion.' Although the Legislature of this Colony is subordinate to the Imperial
Judgment for defendants. Parliament, it is the supreme power We shall now glance very briefly acting in this Province; its legislative at two of the instances in which the authority extends to the most important Legislature of the Province of Lower objects, and the instances in which it Canada claimed and asserted its priviis restrained, are, perhaps, not those leges. During the Session of the Proof the greatest and most immediate vincial Parliament of Quebec, in 1817, consequence for the welfare of society. Samuel Wentworth Monk was comIf a legislative body with such powers, mitted by the Assembly to the comand established for such purposes, had mon gaol of the district, during not also the power of giving effect to pleasure, for a contempt : refusing to their consultations, by protecting produce certain registers and docuthemselves from insult, and removing ments before the House, or one of its obstruction from their proceedings, I Committees. A Special Committee am not certain that more injury than was appointed to examine into the good might not be found to result precedents for such commitments. from the Constitution conferred upon They cited, amongst other cases, that us; and I cannot satisfy myself, upon of the Legislature of Jamaica, which any reasoning, that it is not as impor attached the person of Major-General tant for us as the people of England Carmichael, the officer in command of that our Legislature should not be the Forces, and brought him to the compelled to make laws in the dark, Bar of the House, to give evidence as and that they should have power to to the proceedings before a Court inquire before they come to decide.. Martial.
The Parliament of Quebec was proWithout discussing further the ob rogued on the 22nd day of March, jections that have been or may be 1817, and, on that day the Court then raised, I am, on the whole, of opinion sitting for the trial of crimes and crimthat this action cannot be supported. inal offences-on motion, granted a
. . It is plain that if upon writ of habeas corpus, and the above this record this action could be sus cause of detention being returnable, it tained against one of those defendants, was moved that Samuel Wentworth no one could venture hereafter to fill Monk be discharged. The Court,
without determining whether the de 1 ... And whether a political tention of Mr. Monk was legal or institution is vested with the authoillegal, whether the warrant by which rity to make laws, or to explain and he was detained was accurate or in- enforce them, it must of necessity accurate, discharged him upon the possess all the powers requisite to enground that the period for which he | sure the purposes for which it was was committed had expired. (Stuart's created. .
The counsel for L. C. R., pp. 120-121).
the defendants appear to consider the But it was not in the case of the Privileges of both Houses of Parliapopular and elective branch of the ment, of punishing for contempt, to Legislature alone that the Canadian be derived from the Aula Regis, which Judiciary, in times past, admitted and exercised all the authority of a Suconfirmed the claims for Privileges. preme Court of Justice; but the EcIn the case of Daniel Tracy, reported clesiastical and Admiralty Courts, in Stuart, L. C. R., pp. 478–517, the which do not derive their jurisdiction Court held that the Legislative from the same source, exercise the Council has a right to commit, for same right of punishing summarily breach of Privilege or in cases of libel; all contempts committed against their and the Court will not notice any de | dignity and authority.' fect in the warrant of commitment Justice Bowen, in pronouncing his for such an offence after conviction.' decision said, amongst other things : The libel was published in the Mon Looking at the Act, 31 Geo. III. cap. treal Vindicator of the 3rd Jan. 1832. | 31, we find that the Provincial Legis
The same order was entered in the lature is empowered to make laws for case of Lulger Duvernay, brought | the peace, welfare, and good governbefore the Court by another writ of ment of the Province ;' and in no part habeas corpus, upon a conviction by of this Act is there any mention of the Legislative Council on the 17th what shall be the Privileges of either of January, 1832, for a similar breach branch of the Provincial Legislature; of Privilege, in publishing in the paper, but it is certainly true that the framers La Minervc, on the 9th Jan., 1831, a of it intended to confer upon the Pro. libel upon that branch of the Legisla vinces of Upper and Lower Canada ture. Justice Kerr, in the course of his a Constitution modelled, as far as cirremarks, observed : “But it has been cumstances would permit, precisely argued by the defendants' advocate upon that of Great Britain. It has that the Legislative Council has ac been well observed by Sir William quired no such power, (that of the Blackstone, treating upon this very House of Lords, in the matter of snbject, that the Privileges of ParliaPrivilege), by immemorial custom and ment are large and indetinite ; that if usage, and that the Parliamentary all the Privileges of Parliament were Charter of the year 1791 confers no once to be set down and ascertained, such authority upon it. I certainly and no Privilege to be allowed but admit that this body does not possess, what was so defined and determined, like the House of Lords, a right to it were easy for the Executive Power fine and imprison beyond the Session, to devise some new case, not within the nor so extensive Privileges as the line of Privilege, and under pretence Lords and Commons possess. But thereof, to harrass any refractory memcan the exercise of the power of pro ber and violate the freedom of Parliaceeding summarily and committing ment; the dignity and independence of for a libel against the Legislative the two Houses are therefore in great Council, as an aggregate body, be re measure preserved by keeping their fused to them without their sinking, privileges indefinite. . . into utter contempt and inefficiency ?! 'Besides, by the conviction before us, the Legislative Council have done claimed and exercised in this country no more than the House of Commons since the commencement of the Conhas invariably done upon similar oc- stitution. (The italics in the forecasions—imprisoned the offender dur going, are in the Report.) ing the Session of the Legislature, The case of Laroie (see above), was and in doing so have exercised a the only one of importance, which power which, during a period of nearly during the existence of the Parliament forty years has been frequently exer of the late Province of Canada, was cised by the Assembly of this Pro contested before the courts.' vince. .. That these Privileges Lavoie was committed to gaol by have likewise been acted upon by the House of Assembly of the Provother Provincial Legislatures, and ince of Canada, on the warrant of the have been recognised by the highest Speaker of the House, for the space of authority, may be seen by the Jour ten days, for breach of the Privileges nals of the Assembly of Jamaica, in of the House, in that, as Deputy-Re1808, in the case of Major-General turning Officer, he had connived at Carmichael.....
and been guilty of gross fraud,' etc. "This Province enjoys a Constitution The court held, on his petition for · similar to that of England, in virtue a writ of habeas corpus, that such mal
of a particular Statute, it is true, to versation of office was a breach of the make laws for the welfare and good Privileges of the House, and that the government of the Province. Al House had in such case the power of though the Statute mentions only this determining judicially all matters power, it does not deprive the Colo touching the election of its own memnial Legislatures of their powers which bers, including the performance of the are inherent and necessary for bodies duty of those officers who are enconstituted to perform their duties trusted with the regulation of the with liberty, independence, and for | election of its members ; and further, the general good.... If in that the Courts of Law could not enEngland this power is recognised as quire under such a commitment, nor inherent in the Constitution, that is to discharge nor bail a person so comsay, as a Parliamentary law, necessary mitted ; yet, as the commitment did to the independence of their bodies, not profess to be for a contempt, but as a law of the country, it exists in this was evidently arbitrary, unjust, etc., country. In granting us the Consti. the court would not only be competution, Great Britain has given us the tent, but bound to discharge the perlaws to protect it. Although the Con son.' (Stephens' Quebec Law Digest, stitutional Act maintains but certain pp. 922 923.) particular duties, this does not deprive We have now done with the illusthe Colonial Legislature of other pow trations of the claims of the Provincial ers which are enjoyed by the other Legislatures of Upper, Lower, and Colonies, where Constitutions are only United Canada. Enough has been established by Charter ; indeed the brought forward to prove that they Provincial Legislature has performed were not mere automata, created by other duties inherent in the Imperial the Constitutional and Union Acts, Parliament, and the right of doing and gyrating in limping and aimless which cannot be denied to our Provin impotence in the narrow circles of a cial Legislature, although not men statute law. Proof has been given tioned in the Constitutional Acts; and that these old Legislatures were sometheir duties are also of high import thing nobler and more powerful than ance, and required power and inde. the mere letter of the Acts which gave pendence of a Constitutional character | them a legal and technical claim to to fulfil them. These rights have been exist. Our Canadian Courts, always