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common law which deals with this subject is known as the lex et consuetudo parliamenti, and the Judicial Committee of the Privy Council, on appeals from the colonies, have uniformly held that this branch of English common law was strictly local in its application, and referred, not to a supreme legislature in the abstract, but to the Parliament of Great Britain in the concrete, and that therefore it was a branch of the common law which emigrating colonists would not carry with them. The grant, therefore, of a legislature to a colony did not, without more, invest such body and its members with those privileges, immunities, and powers which were by the lex et consuetulo parliamenti annexed to the British parliament and its members. The powers, other than legislative, of a colonial legislature (unless expressly extended by the terms of the charter, commission, or Imperial Act constituting such legislature), are such only as are incident to or in herent in such an assembly, viz., “such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute.” — Kielley v. Carson, 4 Moo. P. C. 88.
Whatever, in a reasonable sense, is necessary poses, is impliedly granted whenever any such legislative body is established by competent authority. For this purpose, protective and self-defensive powers only are necessary, and not punitive. If the question is to be elucidated by analogy, that analogy is rather to be derived from other assemblies not legislative, whose incidental powers of self-protection are implied by the common law (although of inferior importance and dignity to bodies constituted for purposes of public legislation), than from the British parliament, which has its own peculiar law and custom, or from courts of record, which have also their special authorities and privileges recognized by law.”- Barton v. Taylor, 11 App. Cas. at p. 203.
The existence of these limitations upon the powers, privileges, and immunities of a colonial legislature was the reason, presumably, for the enactment of the above section
for these pur
of the B. N. A. Act; and that enactment, and the subsequent enactments of the Dominion parliament, have had the effect—so far as the Dominion parliament is concernedof relegating the numerous authorities which deal with the position, in this regard, of colonial legislatures to the realm of the constitutional historian. But because of the contention advanced in certain quarters that the provincial legislatures are subject to the law as laid down in those authorities, we may say that in Barton v. Taylor, 11 App. Cas. 197, the result of the authorities is clearly stated, and in Woodworth v. Landers, 2 S. C. R. 158 (0), will be found a compendium of the law on this subject (P).
This clause of the B. N. A. Act has, on the other hand, had the effect of limiting the wide power of the Dominion parliament to detine by its own legislation the privileges, etc., of itself and its members, conferred by section 5 of the Colonial Laws Validity Act, 1865, as to which see note (i) to section 35, and note (iii) to section 69, post. It can never go further than the Imperial parliament in this direction. See further, on this aspect of the case, the notes to section 69, post.
As to the nature and extent of these privileges, etc., reference may be made to May, Hatsell, and Bourinot.
(iii) “Powers.”—The reference is, of course, to powers other than legislative, as for example, the power to commit for contempt, to compel the attendance of witnesses, and to compel the production of papers, etc., etc., which may be described as inquisitorial and punitive powers, in aid of intelligent legislation. As to the trial of election petitions, see notes to section 41, post.
(iv) “Defined by Act of the parliament of Canadu.”. Dominion legislation upon this subject is contained in R. S. C. (1886), c. 11, ss. 3-8, 20-23:
(o) The “apology" branch of this case is, in view of Burton v. Taylor, of doubtful authority.
(P) See Anderson v. Dunn, 6 Wheat. 201, ani Kilbourn v. Thompson, 103 U.S. 168, as to the position of Cougress.
“PRIVILEGES AND IMMUNITIES OF MEMBERS AND
3. The Senate and the House of Commons respectively, and the members thereof respectively, shall hold, enjoy and exercise such and the like privileges, immunities and powers as, at the time of the passing of “ The British Vorth America Act, 1867," were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom, and by the members thereof, so far as the same are consistent with and not repugnant to the said Act, and also such privileges, immunities and powers as are from time to time defined by Act of the Parliament of Canada, not exceeding those at the time of the passing of such Act lield, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof respectively.
4. Such privileges, immunities and powers shall be part of the general and public law of Canada, and it shall not be necessary to plead the same, but the same shall, in all courts in Canada and by and before all judges, be taken notice of judicially.
5. Upon any inquiry touching the privileges, immunities and powers of the Senate and of the House of Commons or of any member thereof respectively, any copy of the journals of the Senate or House of Commons, printed or purporting to be printed by the order of the Senate or House of Commons, shall be admitted as evidence of such journals by all courts, justices and others, without any proof being given that such copies were so printed..
6. Any person who is a defendant in any civil or criminal proceedings commenced or prosecuted in any manner for or on account of or in respect of the publication of any report, paper, votes or proceedings, by such person or by his servant, by or under the authority of the Senate or House of Commons, may bring before the court in which such proceedings are so commenced or prosecuted or before any judge of the same, first giving twenty-four hours' notice of his intention so to do to the prosecutor or plaintiff in such proceedings or to his attorney or solicitor, a certificate under the hand of the Speaker or Clerk of the Senate or House of Commons, as the case may be, stating
that the report, paper, votes or proceedings, as the case may be, in respect whereof such civil or criminal proceedings have been commenced or prosecuted, was or were published by such person or by his servant, by order or under the authority of the Senate or House of Commons, as the case may be, together with an affidavit verifying such certificate ; and such court or judge shall thereupon iumediately stay such civil or criminal proceedings, and the same and every writ or process issued therein shall be and shall be deemed and taken to be finally put an end to, determined and superseded by virtue of this Act.
7. If any civil or criminal proceedings are commenced or frosecuted for or on account or in respect of the publication of any copy of such report, paper, votes or proceedings, the defendant at any stage of the proceedings may lay before the court or judge, such report, paper, votes or proceedings, and such copy with an affidavit verifying such report, paper, votes or proceedings, and the correctness of such copy; and the court or judge shall immediately stay such civil or crimiual proceedings, and the same and every writ and process issued therein, shall be and shall be deemed to be finally put an end to, determined and superseded by virtue of this Act.
8. In any civil or criminal proceeding commenced or prosecuted for printing any extract from or abstract of any such report, paper, votes or proceedings, such report, paper, votes or proceedings, may be given in evidence, and it may be shown that such extract or abstract was published bona file and without malice, and if such is the opinion of the jury, a verdict of not guilty shall be entered for the defendant.
EXAMINATION OF WITNESSES.
20. Witnesses may be examined upon oath or upon affirmation, if affirmation is allowed by law, at the bar of the Senate, and for that purpose the Clerk of the Senate may administer such oath or affirmation to any such witness.
21, Any select committee of the Senate or House of Commons to which any private Bill has been referred, by either House, respectively, may examine witnesses upon oath or affirmation, if affirmation is allowed by law, upon matters relating.
of the Parliament of Ca
to such Bill, and for that purpose the chairman or any member of such committee may administer such oath or affirmation, to any such witness.
22. Whenever any witness or witnesses is or are to be examined by any other committee of the Senate or House of Commons, and the Senate or House of Commons has resolved that it is desirable that such witness or witnesses shall be examined upon oath, such witness or witnesses shall be examined upon oath or affirmation, if affirmation is allowed by law; and such oath or affirmation shall be administered by the chairman or any member of any such committee as aforesaid.
23. Every such oath or affirmation shall be in the forms A and B respectively, in the schedule to this Act.
(v) "Commons House.”—The House of Lords in England has certain judicial and other functions which our Senate does not possess. See notes to section 21, post.
19. The Parliament of Canada shall First Session be called together not later than six nada. months after the Union.
20. There shall be a Session of the YearlySession Parliament of Canada once at least in Canada. every year, so that twelve months shall not intervene between the last sitting of the Parliament in one Session and its first sitting in the next Session (i).
(i) See chapter VIII. ante, p. 168, for some observations as to the duty of a governor to insist upon the observance of this section. In the case of the Dominion government no question has ever arisen, the provisions of the section having been uniformly observed. The object of the section, it is almost unnecessary to observe, is to preserve the English rule of annual grants for the public service. In England, the rule is guarded by the passing of the Mutiny Act for one year only.
of the Parliainent of