"Candidates must be elected by an absolute majority-i.e., half the voters plus one at least at the first ballot, and similarly if a second ballot is required. If a third ballot becomes necessary the election is decided in favour of the candidate or candidates, as the case may be, at the top of the poll."* III. Qualification of Members.-In the United States the qualification for a Representative is that he is 25 years of age, has been seven years a citizen of the United States and is when elected an inhabitant of the State in which he is chosen. In Switzerland "every lay Swiss citizen who has the right to vote, except an ecclesiastic, is eligible for membership in the National Council." In Canada the qualification is fixed by Sec. 41 of the British North America Act (quoted above). The Australian Constitution provides (Sec. 34) that "until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows: "(i.) He must be of the tu age of 21 years and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen. "(i.) He must be a subject of the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom or of a Colony which has become or becomes a State, or of the Commonwealth or of a State." Other sections of the Australian Constitution provide for the continuance of every House of Representatives for three years. from the first meeting of the House [the Canadian rule is five years from the day of the return of the writs for choosing the House]; for its dissolution at any time by the Governor-General [Sec. 28]; for the election of a Speaker who must be a member of the House [Sec. 35]; for resignation of members and for their ceasing to be members upon absence without permission for two consecutive months; for a quorum consisting of one-third of the total number of members and for the determination of any question by a majority of votes. The Speaker has no ordinary vote, but has a casting vote. *Adams: "The Swiss Confederation," p. 40. Canada. Australia. CHAPTER V. BOTH HOUSES OF THE CENTRAL LEGISLATURE. I. Powers, Privileges and Immunities.-The British North America Act, 1867, contained a provision [Sec. 18] to safeguard the powers, privileges and immunities of the Dominion Parliament, as follows: "The privileges, immunities and powers to be held, enjoyed and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof." This section was amended in 1875 by an Act of the Imperial Parliament. The words "the same shall never exceed those at the passing of this" were omitted, and in their place the words "any Act of the Parliament of Canada defining such privileges, immunities and powers shall not confer any privileges, immunities or powers exceeding those at the passing of such" were inserted. The corresponding clause of the Australian Commonwealth Act is Sec. 49, which reads as follows : "The powers, privileges and immunities of the Senate and of the House of Representatives, and of the Members and Committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its Members and Committees, at the establishment of the Commonwealth." It will be seen that there is a considerable difference between the powers of the Canadian and the Australian Parliaments as to declaring their powers, privileges and immunities. The Canadian Parliament is only given the power of declaration subject to the limitation that the declaratory Act shall not confer powers, etc., exceeding those of the English House of Commons. In the Australian Commonwealth Act, this limitation only applies to the period prior to the passing of a declaratory Act by the Commonwealth Parliament; and, upon the passing of such an Act, the limitation no longer applies. Messrs. Quick and Garran summarise [Annotated Constitution, Australian Commonwealth, p. 503], the effect of the leading decisions by the Privy Council upon the privileges of Colonial Legislatures: "The law and custom of Parliament is not a part of the Common Law which Englishmen are presumed to have carried with them, as their political birthright and heritage, when they founded new settlements and colonies beyond the seas. The inherent powers and privileges of Colonial legislative bodies, which have no express grant of powers and privileges similar to those of the British Parliament, have been considered and expounded by the highest legal authorities of the Empire in a number of leading cases. The principles affirmed were:-(1) That a Colonial legislative body is not entitled to enjoy and exercise the powers, privileges and immunities of the Houses of the British Parliament, unless [they] have been expressly conferred upon such a body by Imperial Statute; (2) that such Legislative Assemblies can, without express grant, exercise all regulating and self-preserving powers that are necessary for their existence, and for the proper exercise of the functions they are intended to execute. Whatever, in a reasonable sense, is necessary for these purposes is impliedly granted, whenever any such legislative body is established by competent authority. For these purposes, protective and self-defensive authority only, and not punitive, is necessary. But when there is an express grant to a Colonial Legislature of the right to declare its powers, privileges and immunities as equal to those of the British House of Commons, the case is different. Thus the Constitution of Victoria contained a similar clause to the original Sec. 18 of the British North America Act. Under this clause the Legislature of Victoria passed a declaratory Act. The Privy Council held, in the case of "The Speaker of the Legislative Assembly of Victoria vs. Glass," that "the privileges and powers of the Imperial House of Commons at the time of the passing of the Constitutional Act were carried over to the Legislative Assembly of the Colony, including the privilege of judging what is contempt and the power of committing for contempt by a warrant stating generally that a contempt had taken place, without setting forth the specific grounds of such commitment."* As to what are the powers, privileges and immunities of the British House of Commons, the following quotation from the "Annotated Constitution of the Australian Commonwealth " [pp. 501, 502] affords an admirable summary of their main features: "Powers and Privileges.-The following are among the principal powers and privileges of each House, and of the members of each House, of the Imperial Parliament, as now known to the law :— $1 "(i.) The power to order the attendance at the bar of the House of persons whose conduct has been brought before the House on a matter of privilege. "(ii.) To order the arrest and imprisonment of persons guilty of contempt and breach of privilege. "(iii.) To arrest for breach of privilege by warrant of the Speaker. "(iv.) To issue such a warrant for arrest and imprisonment for contempt and breach of privilege, without showing any particular grounds or causes thereof. "(v.) To regulate its proceedings by standing rules and orders having the force of law. "(vi.) To suspend disorderly members. "(vii.) To expel members guilty of disgraceful and infamous conduct. "(viii.) The right of free speech in Parliament, without liability to action or impeachment for anything spoken therein; established by the 9th Article of the Bill of Rights. "(ix.) The right of each House, as a body, to freedom of access to the Sovereign for the purpose of presenting and defending its views. * Quoted by Doutre: "Constitution of Canada,” p. 72. United States. "Breaches of Privileges.-The following are instances: "(i.) Wilful disobedience to the standing rules and orders of the House passed in the exercise of its Constitutional functions. "(ii.) Wilful disobedience to particular orders of the House, made in the exercise of its Constitutional functions (iii.) Wilfully obstructing the business of the House. "(iv.) Insults, reflections, indignities and libels on the character, conduct and proceedings of the House and of its members. "(v.) Assaults on members of the House. (vi.) Interference with the Officers of the House in the discharge of their duties. 'Immunities.-The following are instances: "(i.) Immunity of members for anything said by them in the course of "(ii.) Immunity of members from arrest and imprisonment for civil "(v.) Immunity of Parliamentary witnesses from being questioned or impeached for evidence given before either House. “(vi.) Immunity of Officers of either House, in immediate attendance and service of the House, from arrest for civil causes." II. Money Bills.-The right of originating, amending or rejecting money bills has been the prime ground of conflict between the two Houses of the Legislature, not only in England, but wherever the features of the British Constitution have been copied in framing the Constitutions of other countries. Thus the Constitution of the United States [Article I., Sec. 7, Sub-Sec. (i.)] provides that :— "All Bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other Bills." Story in his "Commentaries on the Constitution of the United States" [Secs. 873 to 881] points out that this clause in the Constitution "is, beyond all question, borrowed from the British House of Commons, of which it is the ancient and indisputable privilege and right, that all grants of subsidies and Parliamentary aids shall begin in their House, and are first bestowed by them, although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the Legislature [i.e., the Lords and the Sovereign]. . . . . The true reason seems to be this. The Lords being a permanent hereditary body, created at pleasure by the King, are supposed more liable to be influenced by the Crown, and when once influenced more likely to continue so than the Commons, who are a temporary elective body, freely nominated by the people. It would, therefore, be extremely dangerous to give the Lords any power of framing new taxes for the subject. It is sufficient that they have the power of rejecting, if they think the Commons too lavish or improvident in their grants. . "So jealous are the Commons of this valuable privilege, that herein they will not suffer the other House to exert any power but that of rejecting. They will not permit the least alteration or amendment to be made by the Lords to the mode of taxing the people by a money bill; and under this appellation are included all bills, by which money is directed to be raised upon the subject for any purpose, or in any shape whatsoever, either for the exigencies of the Government, and collected from the Kingdom in general, as the land tax; or for private benefit, and collected in any particular district, as turnpikes, parish-rates and the like. It is obvious that this power might be capable of great abuse if other bills were tacked to such money bills; and accordingly it was found that money-bills were sometimes tacked to favourite measures of the Commons, with a view to ensure their passage by the Lords. This extraordinary use, or rather perversion, of the power would, if suffered to grow into a common practice, have completely destroyed the equilibrium of the British Constitution, and subjected both the Lords and the King to the power of the Commons. Resistance was made from time to time to this unconstitutional encroachment; and at length the Lords, with a view to give permanent effect to their own rights, have made it a standing order to reject upon sight all bills that are tacked to money bills. Thus the privilege is maintained on one side, and guarded against undue abuse on the other "* Story goes on to compare the United States Constitution on this point with the British practice. He justifies the grant to the Senate of the power to amend money bills on the ground that "as the Senators are in a just sense equally representatives of the people, and do not hold their offices by a permanent or hereditary title, but periodically return to the common mass of citizens; and, above all, as direct taxes are, and must be, apportioned among the States according to their Federal population; and as all the States have a distinct local interest, both as to the amount and nature of all taxes of every sort, which are to be levied, there seems a peculiar fitness in giving to the Senate a power to alter and amend, as well as to concur with or reject, all money bills. The due influence of all the States is thus preserved; for otherwise it might happen, from the overwhelming representation of some of the larger States, that taxes might be levied which would bear with peculiar severity upon the interests, either agricultural, commercial or manufacturing, of others, being the minor States; and thus the equilibrium intended by the Constitution, as well of power, as of interest and influence, might be practically subverted."+ As additional arguments in favour of the grant of the amending power to the Senate of the United States, Story adduces the inconvenience of compelling the Senate to reject a money bill "although an amendment of a single line might make it entirely acceptable to both Houses"; the fact that the exclusion of the *Story: Comm. on Const. of U.S., sections 874, 875. |