l'enalty for sitting when disqualified. 46. Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it154 in any court of competent jurisdiction. HISTORICAL NOTE.-In the Commonwealth Bill of 1891 the clause was substantially the same, except that the words "Until the Parliament otherwise provides" were absent. At the Adelaide session, 1897, the clause was introduced in nearly the same words. In Committee, on Mr. Barton's motion, the words "or disqualified or prohibited from holding any office" were inserted after "House of Representatives;" and the words" or accepts or holds such office" were inserted before "be liable." (Conv. Deb., Adel., pp. 1198-9.) At the Sydney session, Dr. Quick called attention to the provision for a penalty, which had been decided to be unnecessary in respect of the prohibition against plural voting; and Mr. Barton agreed to bring before the Drafting Committee the question of its omission. (Conv. Deb., Syd., 1897, p. 1034.) Subsequently as a drafting amendment, the words previously inserted as to accepting or holding office were omitted, and the words "until the Parliament otherwise provides" were inserted. At the Melbourne session, verbal amendments were made before the first report and after the fourth report. $ 154. "To any Person who Sues for it." A common informer is authorized to sue in a court of competent jurisdiction to recover the penalty for sitting and voting as a member of Parliament when disqualified. The Federal Parliament has power under sec. 77 to enable this penalty to be sued for in a State court. Disputed elections. 47. Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election155 to either House, shall be determined by the House in which the question arises. UNITED STATES.-Each House shall be the judge of the elections, returns, and qualifications of CANADA. Until the Parliament of Canada otherwise provides, all laws in force in the several HISTORICAL NOTE.-The Commonwealth Bill of 1891, clause 21, Chap. I., provided that "If any question arises respecting the qualification of a senator or a vacancy in the Senate, the same shall be determined by the Senate." Clause 44 made a similar provision in the case of the House of Representatives. At the Adelaide session, 1897, the provision was that "Until the Parliament otherwise provides, any question respecting the qualification of a member, or a vacancy in the Senate, or a disputed return, shall be determined by the Senate ;" and similarly for the House of Representatives. In Committee, Sir Edward Braddon proposed to substitute "High Court" for "Senate." Mr. Wise, however, argued that questions of qualifications and vacancies ought to be decided by the House, though disputed returns ought to be decided by the High Court. Sir Edward Braddon withdrew his amendment, and on Mr. Wise's motion the words "or a disputed return" were omitted, with a view to dealing with the matter in another clause. (Conv. Deb., Adel., pp. 680-2.) Subsequently Mr. Barton proposed a new clause (48 A) : "Until the Parliament otherwise provides, all questions of disputed elections arising in the Senate or the House of Representatives shall be determined by a federal court or a court exercising federal jurisdiction." This was agreed to. (Conv. Deb., Adel., p. 1150.) At the Sydney session, 1897, a suggestion by the Legislature of Tasmania, to omit the new clause and restore "disputed elections" to the "qualifications and vacancies" clauses, was considered. It was pointed out that there might be a difficulty as to the first election, before the Parliament could make suitable provision. The whole question was ultimately left to the Drafting Committee. (Conv. Deb., Syd., 1897, pp. 464-6, 993, 1034-5.) The Drafting Committee struck out all three clauses and substituted a clause substantially in the form of this section. At the Melbourne session, drafting amendments were made before the first report and after the fourth report. This section provides that, until legislation on the subject by the Federal Parliament establishing a different procedure, each chamber shall have exclusive jurisdiction to determine all questions which may arise respecting (1) the qualification of its members, (2) a vacancy which has arisen or which may be alleged to have arisen in its membership, and (3) a disputed election in which it is concerned. Such legislation may assume the form of transferring the jurisdiction to the Federal Courts or to the State Courts, to hear and determine all controversies of the kind. "In England before the year 1770, controverted elections were tried and determined by the whole House of Commons, as mere party questions, upon which the strength of contending factions might be tested. In order to prevent so notorious a perversion of justice, the House consented to submit the exercise of its privilege to a tribunal constituted by law, which, though composed of its own members, should be appointed so as to secure impartiality, and the administration of justice according to the laws of the land, and under the sanction of oaths. The principle of the Grenville Act, and of others which were passed at different times since 1770, was the selection by lot of committees for the trial of election petitions. Partiality and incompetence were, however, generally complained of in the constitution of committees appointed in this manner; and, in 1839, an Act was passed establishing a new system, upon different principles, increasing the responsibility of individual members, and leaving but little to the operation of chance. This principle was maintained, with partial alterations of the means by which it was carried out, until 1868, when the jurisdiction of the house, in the trial of controverted elections, was transferred by statute to the courts of law." (May's Parl. Prac. 10th ed. p. 613.) "By the Election Petitions and Corrupt Practices at Elections Act, 1868, the Parliamentary Elections and Corrupt Practices Act, 1879, and the statute 44 and 45 Vic. c. 68, the trial of controverted elections is confided to two judges, selected, as regards England, from the Queen's Bench Division of the High Court of Justice; as regards Ireland, from the Court of Common Pleas at Dublin; and as regards Scotland, from the Court of Session. Petitions complaining of undue elections and returns are presented to these courts instead of to the House of Commons, as formerly, within twenty-one days after the returns to which they relate, and are tried by two judges of those courts, within the county or borough concerned. The house has no cognizance of these proceedings until their termination: when the judges certify their determination, in writing, to the Speaker, which is final to all intents and purposes. The judges are also to report whether any corrupt practices have been committed with the knowledge and consent of any candidate; the names of any persons proved guilty of corrupt practices; and whether corrupt practices have extensively prevailed at the election. They may also make a special report as to other matters which, in their judgment, ought to be submitted to the house. Provision is also made for the trial of a special case, when required, by the Court itself, which is to certify its determination to the Speaker. By sec. 5 of the Corrupt and Illegal Practices Prevention Act, 1883 (46 and 47 Vic., c. 51), the election court is directed also to report to the Speaker whether candidates at elections have been guilty by their agents of corrupt practices. The judges are also to report the withdrawal of an election petition to the Speaker, with their opinion whether the withdrawal was the result of any corrupt arrangement. All such certificates and reports are communicated to the House by the Speaker, and are treated like the reports of election committees under the former system. They are entered in the journals; and orders are made for carrying the determinations of the judges into execution." (Id. p. 616.) In 1872 the Legislature of the Province of Quebec passed an Act transferring to the Supreme Court of the Province the decision of controverted election cases which was previously vested in its own hands. Further and later provision was made by an amending act passed in 1875, by the 90th section of which it was declared that the judgment of the Supreme Court sitting in review "should not be susceptible of appeal." In 1874 the Canadian Parliament transferred the jurisdiction in the trial and decision of federal election petitions to the ordinary courts of the Provinces, subject to appeal to the Supreme Court of Canada. Amending and consolidating acts, dealing with same subject, were passed in 1886 and 1887. The procedure in the prosecution of such petitions is as follows: a petition is to be presented to the Provincial Court, which is to have the same powers as if such petition were an ordinary cause within its jurisdiction. Short periods of time are prescribed for giving notice of the petition, for taking preliminary objections to it, and for answering it, if those objections are overruled. Every petition is to be tried by one of the judges of the court, without a jury. The trial of every petition is to be commenced within six months of its presentation, and to be proceeded with from day to day until it is over. The court may enlarge the time for commencement of trial, or the period limited for taking any steps or proceedings. The judge may order a special case to be stated for the decision of any question, but it is "as far as possible" to be heard before that judge. An appeal from the judge's decision may be made to the Supreme Court of Canada within eight days. If there is no such appeal, the judge is, within four additional days, to certify his decision to the Speaker of the House of Commons, who is to take action thereupon "at the earliest practicable moment," or "without delay." If there is an appeal, the Supreme Court is to decide, its registrar is to certify the decision, and the Speaker to take action upon it. (Wheeler, C.C. p. 315.) The validity of the Provincial and Federal Acts was affirmed by the Privy Council in Theberge v. Laudry (1876), 2 App. Ca. 102; Valin v. Langlois (1879), 5 App. Ca. 115, and Kennedy v. Purcell (1888), 14 Sup. Ct. (Canada) Rep. 453; 59 L.T. 279 P.C. On the question whether an appeal should be allowed to the Queen in Council, in controverted election cases, the following extracts from judgments of the Privy Council may be cited: "Now the subject-matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and the privileges of the electors, and of the legislative assembly to which they elect members. Those rights and privileges have always, in every colony, following the example of the mother country, been jealously maintained and guarded by the legislative assembly. Above all, they have been looked upon as rights and privileges which pertain to the legislative assembly, in complete independence of the Crown, so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the legislative assembly, no longer belonged to the superior court which the legislative assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the legislative assembly, or of that court which the legislative assembly had substituted in its place. These are considerations which lead their lordships not in any way to infringe, which they would be far from doing, upon the general principle that the prerogative of the Crown, once established, cannot be taken away, except by express words; but to consider with anxiety whether in the scheme of this legislation it ever was intended to create a tribunal which should have, as one of its incidents, the liability to be reviewed by the Crown under its prerogative. In other words, their lordships have to consider, not whether there are express words here taking away prerogative, but whether there ever was the intention of creating this tribunal with the ordinary incident of an appeal to the Crown. In the opinion of their lordships, adverting to these considerations, the 90th section, which says that the judg ment shall not be susceptible of appeal, is an enactment which indicates clearly the intention of the legislature under this Act,-an Act which is assented to on the part of the Crown, and to which the Crown, therefore, is a party,-to create this tribunal for the purpose of trying election petitions in a manner which should make its decision final to all purposes, and should not annex it to the incident of its judgment being reviewed by the Crown under its prerogative. In the opinion, therefore, of their lordships, there is not in this case, adverting to the peculiar character of the enactment, the prerogative right to admit an appeal, and therefore the petition must be refused." (Per Lord Cairns in Theberge Laudry, 2 App. Ca. 107-8.) 66 Suppose we recommend Her Majesty to reverse the judgment, how would that decree be carried into execution? It would go to the House of Commons and be reported to the Speaker. The Speaker could not act on his own authority, and could only act by order of the House: suppose the House to say, 'Her Majesty has no prerogative to do this, and we refuse to carry it out.' Then there would be an immediate conflict between the House of Commons of the Dominion and Her Majesty. It would not be a very prudent thing for us to advise Her Majesty to reverse a judgment unless we can see our way to having it carried into execution when Her Majesty ordered it Suppose the House of Commons, on the report of the Supreme Court that both parties had been guilty of bribery, ordered a new writ, but Her Majesty orders that writ to be recalled, or upset the election which had taken place under it. It appears to me there is no mode of carrying out the decree; and we would not advise Her Majesty to reverse a decree unless we saw a mode of carrying the decree into execution." (Per Sir Barnes Peacock, in Kennedy v. Purcell, 59 L.T. 279 P.C., on a motion for leave to appeal; Wheeler, C.C. 314.) Allowance to members. 48. Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance148 of four hundred pounds a year, to be reckoned from the day on which he takes his seat. UNITED STATES.-The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. — Const., Art. I., sec. 6, sub-s. 1. HISTORICAL NOTE.-Clause 45, Chap. I. of the Commonwealth Bill of 1891 was as follows: "Each member of the Senate and House of Representatives shall receive an annual allowance for his services, the amount of which shall be fixed by the Parliament from time to time. Until other provision is made in that behalf by the Parliament, the amount of such annual allowance shall be Five Hundred Pounds." In Committee, Mr. Wrixon suggested that "allowance for his services" was a misdescription; it was merely an allowance for reimbursement of expenses. Mr. Marmion moved the omission of the words " for his services," but this was negatived. (Conv. Deb., Syd. [1891], pp. 653-4.) At the Adelaide session, 1897, the clause as introduced was to the same effect, except that the sum was £400. In Committee, Mr. Gordon moved to substitute £500, but this was negatived by 26 votes to 9. (Conv. Deb., Adel., pp. 1031-4.) At the Sydney session, a suggestion by the Legislative Council of South Australia and the Legislature of Tasmania, to reduce the allowance to £300, was negatived. A suggestion by the Legislative Assembly of Victoria, to omit "on which he takes his seat," and insert of his election," was negatived. A new clause suggested by the Legislative Council of South Australia, to prevent a Minister from drawing both a salary and his allowance as a member, was negatived, as being a matter for federal legislation. (Conv. Deb., Syd. [1897], pp. 993-6.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report. The system known as payment of members has found a place in the Constitution Each senator and each member of the House of Representatives is entitled to receive an allowance of £400 a year, to be reckoned from the day on which he takes his seat. But neither the principle nor the amount of payment are permanent constitutional provisions. Without an amendment of the Constitution, the Federal Parliament may at any time either abolish payment of members or reduce or increase the allowance which each member is to receive, or alter the method of apportioning the allowance, providing that each member shall be paid according to the distance which he travels or the attendance which he gives at the sittings of his House. Payment of members of Parliament is not a modern political innovation. It was known and practised in the early history of parliamentary representation in England. (See Hearn's Gov. of Eng. p. 526, cited infra.) It was adopted in the Federal Constitution of the United States. (Art I. sec. 6.) It has been the subject of prolonged controversy in British colonies during the last forty years, and it is now generally regarded as an essential condition of democratic government, especially in young communities. It is in force in most of the responsible government colonies, although in several instances it was not carried without bitter opposition and memorable contests. In the Dominion of Canada each member of the Senate and of the House of Commons is entitled to an allowance of ten dollars per day for his attendance at Parliament during a session not exceeding thirty days in duration. For a session lasting longer than thirty days each member is paid $1000. In addition to this remuneration, a member is allowed ten cents per mile expenses in travelling from his division or electorate to the seat of government, and return once during the session. If a member fail to attend the sittings of his House, and his absence is not caused by illness, eight dollars for each day on which he does not attend are deducted from his allowance. Members of the Legislative Assembly of New South Wales (elected) are paid £300 per year, in addition to which they are allowed to travel free on the government railways and tramways. Members of the Legislative Council (nominated by the Crown) are not paid, but they have similar privileges on the railways. Members of the two Houses of the Victorian Parliament (elected) have respectively remuneration and railway privileges similar to those of New South Wales. Members of both Houses (elected) of the South Australian Parliament are paid at the rate of £200 per year, and in addition enjoy railway facilities. In New Zealand the members of the Legislative Council (nominated by the Crown) are paid at the rate of £150 per year, whilst members of the House of Representatives (elected) receive £240 per year. Members of the Legislative Assembly of Queensland (elected) are entitled to £300 per year, and in addition an allowance of 1s. 6d. per mile on expenses for travelling by land, and the actual cost of travelling by sea for one journey per session from their electorates to the place where the Parliament meets and return. Queensland Legislative Councillors (nominated by the Crown) receive no remuneration. The members of both Houses of the Parliament of Tasmania receive £100 per year, with free passes over the government railway lines. In the United States of America the salary of a senator, representative or territorial delegate in Congress is fixed at $5000 per year with travelling expenses at the rate of 20 cents per mile for one journey per session, from the member's State or electorate to the seat of government and return. "Another change that time has wrought in the Commons of the Plantagenets relates to the payment of members for their services. This practice, like that of resiancy, was coeval with representation. The writs de expensis lerandis date from the reign of Henry the Third. In subsequent reigns they were issued with as much regularity as the writs of summons. The payment was levied on the several constituencies; and was calculated |