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making due returns of the whole of the elections had passed.
In 1867 the writs for the Dominion elections were made returnable on the 24th Sept., except those for Gaspé, and Chicoutimi and Saguenay, which were returnable on the 24th October. Parliament was summoned for 24th Sept., but prorogued, and finally met ' for the despatch of business' on the 6th November. The date of the return of the member for Chicoutimi was the 16th, and for Gaspé the 24th Sept. The date of the receipt of the respective returns was 24th Sept. and 2nd October respectively.
In 1872 Manitoba and British Columbia had joined the Dominion. So the writs were made returnable, generally, on the 3rd Sept., except those for Gaspé, Chicoutimi and Saguenay, Manitoba and British Columbia, which were made returnable on the 12th October, on which day, also, Parliament was formally called together. It was, however, as usual, prorogued, and finally called for the despatch of business' 5th March, 1873. The excepted elections took place as follows :
Return of Receipt of
Members. Returns. Chicoutimi and Saguenay
Sept. 10 Sept. 14 Gaspé
Aug. 2) Sept. 4 Manitoba.
was followed as in 1872, the writs generally being returnable on the 21st of February, and those for the excepted districts on the 12th of March, the day of the formal summons. But, as the writ for Algoma was, apparently from inadvertence, not classed with the excepted returns, a fresh proclamation was issued, making that writ also returnable on the 12th of March. Parliament was prorogued from the 12th to the 26th of March, and then met ‘for the despatch of business.'
In Ontario, all the writs for the first Legislature after Confederation were made returnable on the 24th of September, 1867, and, by proclamation, the House was convened for that day. It was ultimately called for the despatch of business' on the 13th of December. All the elections had been held before the end of September, but no less than four-namely, Bothwell, Cardwell, North Middleser, and North York—were held on or after the 24th of September, the day named in the formal proclamation, while the receipt of no less than 21, or more than one-fourth of the whole number of writs, was delayed until subsequent to the 24th of September. Now, it will be recollected that, in 1867, the date of each separate election was fixed by the Government, and no one can suppose that so experienced a parlia mentarian as Mr. J. Sandfield Macdonald, then Premier, really intended to open his first session while twentyone returns were still incomplete and several members not even elected. That, surely, gives the finishing stroke to any argument founded on the wording of these formal proclamations
In 1871 the writs were made returnable on the 7th of April, except the writ for Algoma, which was returnable on the 27th of May, and, for the first time, a day for all the elections (except Algoma) was named in the proclamation. The Legislature was called for the 7th of April, but, having been repeatedly prorogued, met "for the
despatch of business' on the 7th of De- | Crown thus be a consenting party to cember. The nominations and pollings an abridgement of the prerogative, no (except in Algoma) were respectively wrong is done to the rights of the held on the 14th and 21st of March, Crown by such legislation. The forty 1871, and for Algoma the date of the days secured by the Barons in Magna return is given as the 5th of May, the Charta for the summoning of the return being received on the 15th of · Common Council of the Kingdom,' May, 1871. In 1875, as already ob- virtually suspended the prerogative served, the writs were generally re- for that space of time. So did the turnable on the 2nd of February, and forty days statutory provision of Wilfor Algoma on the 14th of August. liam III. So did the fifty days of the The House stood prorogued from time Scotch Union Act. So did the fifty to time to the 24th of November, days of the Union Act of Canada. So 1875. The practice which long ob- did the ninety days allowed by the tained in Canada of naming as the day Ontario Act of 1868-9 for Algoma in of meeting, the day on which the writs the winter season. So has nearly every generally were returnable, was doubt- statutory limitation or security which less copied from that of Great Britain, has been considered by the Crown as where no exceptional conditions ex- advised by Parliament, essential to the isted. It does not, however, fol- privileges of the electorate. low by any means that the Parlia- By the Act of 36th Edward III. it ment of Great Britain always meets was enacted that Parliament shall on the day first appointed. May says be holden every year.' The Triennial on this point (p. 52): "The interval Act, 6 & 7 William & Mary, c. 2, between a dissolution and the assem- enacted that 'from henceforth Parlia'bling of the new Parliament varies ment shall be holden once in three according to the period of the year, years, at the least.' By the Septen
the state of public business, and the nial Act, 1 Geo. I, c. 38, the duration political conditions under which an of Parliament was limited to seven ‘appeal to the people may have become years, so that the Sovereign might necessary. When the session has not be able by the aid of a servile or been concluded, and no question of corrupt Parliament to abuse the prero· ministerial confidence or responsi- gative. The Canadian Acts providing
bility is at issue, the recess is gene- for the annual convening or duration * rally continued by prorogation until of the Parliament or Legislatures, are the usual time for the meeting of but reflections of the British Statutes. Parliament'
The most potent influence over the acts of the Crown and an all-powerful check on the abuse of the prerogative is, however, the voting of supplies.
The granting of these for one year It is alleged that, by virtually pro- only compels the summoning of Parhibiting or precluding the assembling liament annually quite as eftectually of a new parliament, pending the
as any law.
The fact is that, interelection for Algoma, the prerogative preted by modern practice, usage and is violated. In answer to this it may ideas, the prerogative is simply a beobserved that, while the summoning, power held in trust by the Crown for prorogation and dissolution of Par- the people, a power, consequently, liament are undoubtedly attributes of that may be enlarged or contracted by the prerogative, they are nevertheless the joint action of the Crown and the subject to the restraints and limita- people, and which has been subject to tions of law. Every Act must have
Hence it is not the assent of the Crown, and if the to be argued that if, by the joint ac
both in many ways.
THE ALLEGED INVASION OF THE PRE
tion of the Crown and the people, it great weight in considering the intenhas been decided that there shall be tions of the Legislature, when framing no session of a new parliament during the Statute. Mr. Scott, M.P.P., in his certain months in the year or for a argument, quoted from "Maxwell's given period of time, this would be an Interpretation of the Statutes,' in supunlawful or improper infringement port of this view. Maxwell, in his • Inupon the prerogative, especially by a terpretation of the Statutes, 'page 166, body that has a right to alter or amend says 'An argument drawn from an inthe constitution.
'convenience, it has been said, is forBut does the Algoma proviso really 'cible in law, and no less force is due prejudice the prerogative? We have 'to any drawn from an absurdity or seen that it has not done so in the injustice.' But inconvenience'alone past, nor is likely to do so. The case is not sufficient to invalidate a Statute is supposed of a political crisis, say in that is clear and unmistakable in its the Fall, necessitating a dissolution. termis. The law books are full of The Legislature might, it is suggested, decisions, some of which are to be found refuse to vote supplies, and no appeal in Maxwell' (p. 5), distinctly insisting to a new House could be had until the on adherence to the express letter July following at the earliest. Is the l of the Statute, no matter what the Crown to be thus deprived of the consequences, or, in other words, the means for carrying on the government inconvenience' may be. In ‘Maxwell' for some seven or eight months ? The p. 4, occurs the following passage : If answer is that, while the Crown would the words go beyond what was the inhave the right to dissolve, harmony 'tention, effect must nevertheless be between the Crownand the Legislature 'given to them. They cannot be concould be secured by a change of Minis- strued contrary to their meaning ters. The prerogative is not an arbitrary 'merely because no good reason apinstrument, but one always to be used ‘pears why they should be excluded judiciously and solely in the public or embraced. However unjust, arinterest. A Governor may have to bitrary or inconvenient the intention decide between a change of Ministers may be, it must receive its full effect. and a stoppage of the Queen's busi- • When once the intention is plain, it ness. In that case he must act on his is not the province of a court to scan best judgment. Supposing, however, its wisdom or its policy. The plea by forcing him to accept, as the result of inconvenience in the present inof an appeal to the country, the will of stance has no practical weight. A ! a partially constituted House only, and possible difficulty can only arise at a Ministers in whom a majority of the General Election. The practice of Oncountry, if represented by a complete tario is against the presumption that House, would have no contidence, what such an inconvenience will arise. It would then become of the rights of was for the Legislature in framing the the Crown? It might get supplies, it Election Law to balance inconvenis true, but at the price of the prero- iences. They decided, it must be asgative.
sumed, that it would be less inconvenient, perhaps once in a great many years, for public business to have to
a wait the election of a complete AsIn the foregoing remarks the ques- senibly than to recognise as a valid tion of convenience has been inciden- and effectual meeting of Parliament tally referred to. It is argued that the one from which a portion of the reinconvenience of the arrangement presentation was, per force, excluded. which limits elections in Algoma to However to guard against a most imcertain months in the year, is to have probable eventuality it has now been
THE ARGUMENT OF CONVENIENCE.
provided that should such a contin- members at 82,could have no less force gency as that suggested arise the old than the 85th and 86th relating to the member shall retain his seat until a duration and holding of parliament. new one is elected for Algoma.
If it be held that parliament would
lapse, and its Acts be void if the ENACTMENTS RELATING TO THE LEGIS. Statute were infringed by the session LATIVE ASSEMBLY.
lasting one day over the four years,
surely it must be equally void if conFirst, in order, we have the British stituted of only 81 members instead North America Act, sec. 41, continu- of 82. ing, in the case of the Dominion, the We come next to the Ontario Acts. Election Laws of the several Provinces The Act of 1868-9 (32 Vic. c. 21, s. until otherwise provided. (2) In sec- 18, sub-sec. 4) extends the period for tion 65, powers are given to the Local making the Algoma writ returnable, to Legislatures to abolish or alter' ninety days in the winter season. “powers, authorities and functions' ex- Then, in the Representation Act of ercised by the Lieut.-Governors. (3) 1874 (38 Vic. c. 2, sec. 1), the number The 70th section declares that the of members is increased to eightyLegislative Assembly of Ontario shall eight, and by the 38 Vic. c. 3, sec. 21, be composed of eighty-two members the period for holding an election in to represent the eighty-two electoral Algoma is limited to the months of districts set forth in the first schedule June, July, August, September and to the Act (Algoma being one). (4)
October. This is slightly enlarged and Section 84 contains a provision for the more precisely stated in 39 Vic. c. 10, temporary continuance of the existing s. 13, which provides, that the nomielectoral laws of Canada in respect of nation or polling shall be held in any the two Provinces of Ontario and year at some time from the 20th day Quebec. (5) Section 85 provides, that of May to the end of November, and the Legislative Assembly shall last between those days only. four years and no longer (subject to Now, how, in a legal sense, does this earlier prorogation). (6) The 86th last enactment contravene any we have section enacts that there shall be a quoted preceding it in order of time? session once at least in every year. (7) Not certainly the first (sec. 41, B. N. The 92nd section gives power to the A.), for it does not relate to the Do Provinces to amend their constitutions minion Law; not the second (sec. 65, except as regards the office of Lieut.- B. N. A), for it is of the very essence Governor.
of that clause that the Legislature We have now exhausted the list should abolish or alter any of those of the several provisions in the Brit- prerogative rights, which, without exish North America Act bearing upon press direction to the contrary, the the subject under consideration. Crown would exercise independently Reading them together as
of such a check or regulation ; not the bound to do, we must come to the third (sec. 70, B. N. A.), because it conclusion : (1) That in every sense gives aid to the effectual constitution save in the one exception relating of the Assembly by naming a time to the office of the Lieutenant. suitable for the election of the full Governor) the Local Legislatures were complement of members; not the fourth to have full power to alter or amend (sec. 84, B. N. A.), because that is a their constitutions, including those ! mere continuance of former Acts, pendconstitutional provisions above men- ing such provisions as the later Act tioned and expressly enacted under the comprises ; not the fifth (sec. 85, B. 3rd, 5th, and 6th heads. (2) That N. A.), for the four years' date will the 70th section fixing the number of run as easily from the return of the
Algoma writ as from any other; not sity, is the need the Executive has of the seventh, for that gives express obtaining supplies, of which it would powers to pass just such a law as have none without a Legislature at or the one in question. We have omit. inimediately after New Year's Day. ted to consider the effect of the But, if an emergency of the kind arose enactment on the section quoted under then it is submitted that, as no penalty the sixth head (86 sec., B. N. A.), nor disability would attach to the as the several sections have been holding of the Legislature after the passed in review, and for this reason: expiration of the year dating from the it is the only one that might, by a re- last sitting of the previous Legislature, mote contingency, be negatived or so, if in providing for the general convoided by the Algoma clause. The venience, and ensuring the due consticase is put thus : If the Lieutenant- tution of the Legislature (a fundaGovernor were advised to dissolve the mental principle in the constitution), Legislature at a date, say in October, the Algoma clause came into collision too late to allow an election in Algoma under wholly exceptional conditions to be legally held that year, while the with the annual meeting clause, then Legislature had been prorogued in the last enacted Statute must prevail March or April, no election could take over the earlier one, and in so far as place in Algoma until June or July may be necessary to the carrying out of the following year, or, contrary to of the latest expressed intention of the Statute, fifteen or sixteen months the Legislature be held to have reinstead of a year from the last sitting pealed it. But the Act which has of the Legislature at its previous ses- just become law removes even this sion.
possible if improbable source of difThe guarantee against such an event ficulty. from caprice or without absolute neces