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"The annual meeting of Parliament, now placed beyond the power of the Crown by a system of finance, rather than by distinct enactment, had, in fact, been the law of England from very early times. By the statute 4 Edward III., c. 14, it is accorded that Parliament shall be holden every year once, [and] [or] more often if need be.' And again, in the 36 Edw. III., c 10, it was granted for redress of divers mischiefs and grievances which daily happen [a Parliament shall be holden or] be the Parliament holden every year, as another time was ordained by statute.' It is well known that by extending the words, if need be,' to the whole sentence instead of to the last part only, to which they are obviously limited, the kings of England constantly disregarded these laws. It is impossible, however, for any words to be more distinct than those of the 36 Edward III., and it is plain from many records that they were rightly understood at the time. In the 50 Edward III., the Commons petitioned the king to establish, by statute, that a Parliament should be held each year; to which the king replied, In regard to a Parliament each year, there are statutes and ordinances made, which should be duly maintained and kept.' So also to a similar petition in the 1 Richard II, it was answered, 'So far as relates to the holding of Parliament each year, let the statutes thereupon be kept and observed; and as for the place of meeting, the king will therein do his pleasure.' And in the following year the king declared that he had summoned Parliament, because at the prayer of the Lords and Commons it had been ordained and agreed that Parliament should be held each year. In the preamble of the Act 16 Chas. I., c. 1, it was also distinctly affirmed, that by the laws and statutes of this realm, Parliament ought to be holden at least once every year for the redress of grievances: but the appointment of the time and place of the holding thereof hath always belonged, as it ought, to his majesty and his royal progenitors. Yet by the 16 Chas. II., c. 1, a recognition of these ancient laws was withheld for the Act of Charles I. was repealed as derogatory of his majesty's just rights and prerogative'; and the statutes of Edward III were incorrectly construed to signify no more than that Parliaments are to be held very often.' All these statutes, however, were repealed, by implication, by this Act, and also by the 6 and 7 Will. and Mary, c. 2, which declares and enacts that from henceforth Parliament shall be holden once in three years at the least.' (May's Parl. Prac., pp. 38-40.)

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PART II THE SENATE.

The Senate.

7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland", if that State be an Original State", may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate.

Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained" and that no Original State shall have less than six senators.

The senators shall be chosen for a term of six years, and

the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.

UNITED STATES.-The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.-Coust., Art. I., sec. 3, sub-sec. 1.

CANADA. The Senate shall, subject to the provisions of this Act, consist of seventy-two members, who shall be styled Senators.-B.N.A. Act, 1867, sec. 21.

In relation to the Constitution of the Senate, Canada shall be deemed to consist of Three Divisions:

1. Ontario;

2. Quebec;

3. The Maritime Provinces, Nova Scotia and New Brunswick; which Three Divisions shall (subject to the provisions of this Act) be equally represented in the Senate as follows:-Ontario by twenty-four Senators; Quebec by twenty-four Senators; and the Maritime Provinces by twenty-four Senators, twelve thereof representing Nova Scotia, and twelve thereof representing New Brunswick.—Id., sec. 22.

The Governor-General shall from time to time, in the Queen's name, by instrument under the Great Seal of Canada, summon qualified persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a Senator.-Id, sec. 24.

Such persons shall be first summoned to the Senate as the Queen by Warrant under Her Majesty's Royal Sign Manual thinks fit to approve, and their names shall be inserted in the Queen's Proclamation of Union.-Id., sec. 25.

If at any time on the recommendation of the Governor-General the Queen thinks fit to direct that three or six members be added to the Senate, the Governor-General may by summons to three or six qualified persons (as the case may be), representing equally the Three Divisions of Canada, add to the Senate accordingly.-Id., sec. 26.

In case of such addition being at any time made, the Governor-General shall not summon any person to the Senate, except on a further like direction by the Queen on the like recommendation, until each of the Three Divisions of Canada is represented by twenty-four Senators, and no more.-Id., sec. 27.

The number of Senators shall not at any time exceed seventy-eight.—Id., sec. 28. A Senator shall, subject to the provisions of this Act, hold his place in the Senate for life. Id., sec. 29.

HISTORICAL NOTE.-Clause 9, Chap. I., of the Commonwealth Bill of 1891 was as

follows:

"The Senate shall be composed of eight members for each State, directly chosen by the Houses of the Parliament of the several States during a session thereof, and each senator shall have one vote. The senators shall be chosen for a term of six years. The names of the senators chosen in each State shall be certified by the Governor to the Governor-General."

In Committee, the debate opened with a warning by Mr. Wrixon that, if the Senate were given large powers, the clause must be reconsidered; "it will never do to give equal representation to the smallest, as well as to the largest States, if the Senate is to be a large and determined power in the Constitution." An amendment by Mr. Munro, to substitute "six" for " eight," was negatived. Mr. Kingston proposed to omit the words "directly chosen by the Houses," &c., so as to leave each State to determine the mode of election. The arguments in favour of a uniform mode of election, however, were too strong; and the time was not yet ripe for the plan of direct election. Mr. Kingston's amendment was negatived by 34 votes to 6. (Conv. Deb., Syd. [1891], pp. 588-99.)

At the Adelaide session, the provision was introduced as follows (part of clause 9) :-"The Senate shall be composed of six senators for each State, and each senator shall have one vote.

"The senators shall be directly chosen by the people of the State as one electorate. "The senators shall be chosen for a term of six years, and the names of the senators chosen by each State shall be certified by the Governor to the GovernorGeneral.

The Parliament shall have power, from time to time, to increase or diminish the number of senators for each State, but so that the equal representation of the several States shall be maintained and that no State shall have less than six senators."

The discussions upon this clause at the Adelaide and Sydney sessions may be most conveniently referred to under separate subject-headings.

Equal Representation.-At the Adelaide session, Mr. Higgins proposed that representation in the Senate should be according to a sliding scale, intermediate between

equal and proportionate representation. This was negatived by 32 votes to 5. (Conv. Deb., Adel., pp. 641-68, 1190.) At the Sydney session, a suggestion by both Houses of the New South Wales Parliament, providing for proportionate representation, with a minimum of three senators for each State, and a minimum total number of 40 senators, was negatived by 41 votes to 5. (Conv. Deb., Syd. [1897], pp. 256-355.) In the re-draft of the clause proposed at Sydney, doubts as to the construction of the clause, read with the clause providing for the representation of new States (sec. 121), were removed by restricting the right of equal representation to "Original States." (See Conv. Deb., Syd. [1897], pp. 257-8.) The same principle was affirmed by a suggestion of the Legislative Assembly of Victoria, declaring that the provision for the maintenance of equal representation should not apply to new States admitted on other terms. This was opposed by those who claimed that equal representation was an essential principle of Federation, but was supported by those who defended equal representation as a necessary compromise. It was agreed to by 25 votes to 20. (Conv. Deb., Syd. [1897], pp. 394-415.)

Direct Election by People.-At the Adelaide session, Mr. Dobson protested against the direct election of senators on the same suffrage as the House of Representatives, but moved no amendment. (Conv. Deb., Adel., pp. 670-2.) At the Sydney session, Sir John Forrest announced his preference for election by the Legislatures. (Conv. Deb., Syd. [1897], p. 361.)

As one Electorate.-At the Adelaide session, Mr. Lyne criticized the policy of making each State one electorate, and advocated single-member constituencies. (Conv. Deb., Adel., pp. 668-9.) At the Sydney session, suggestions by the Legislative Assembly of New South Wales, and by both Houses of all the other colonies, to omit the words " as one electorate," were discussed. Sir John Forrest suggested three electorates, seeing that three members for each State were to retire periodically. Mr. Fraser suggested six electorates. After debate, the words "until the Parliament otherwise provides" were inserted by 29 votes to 19; and the words "as one electorate" were retained by 29 votes to 18. (Conv. Deb., Syd. [1897], pp. 360-91.)

Term of Office. - At the Adelaide session, Mr. Higgins proposed to reduce the senators' term of office from six to four years. This was negatived. (Conv. Deb., Adel., p. 670.)

Certifying Names. - At the Sydney session, a suggestion by the Legislative Assembly of Victoria to omit this provision-on the ground that the States should have nothing to do with the electoral machinery of the Senate - was negatived. (Conv. Deb., Syd. [1897], pp. 391-4.)

At the Sydney session, the clause was re-drafted in the following form :

"The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise determines, as one electorate, and each senator shall have one vote. Until the Parliament otherwise provides, there shall be six senators for each Original State. The Parliament may, from time to time, increase or diminish the number of senators for each State, but so that equal representation of the several Original States shall be maintained, and that no Original State shall have less than six senators. The Senators shall be chosen for a term of six years, and the names of the senators chosen by each State shall be certified by the Governor to the Governor-General."

At the Melbourne session, before the first report, the words "and each Senator shall have one vote" were transferred to another clause (sec. 23); and the words "chosen for each State" were substituted for "chosen by each State." After the second report, Mr. Isaacs proposed to allow each State, provisionally, to divide the State into electorates. This was negatived by 27 votes to 16. (Conv. Deb., Melb., pp. 1922-8.) Verbal amendments were made after the fourth report.

At the Premiers' Conference, 1899, the paragraph enabling the Parliament of Queensland, in the absence of federal legislation, to divide the State into electoral divisions, was agreed to.

The Senate is one of the most conspicuous, and unquestionably the most important, of all the federal features of the Constitution, using the word federal in the sense of linking together and uniting a number of co-equal political communities, under a common system of government. The Senate is not merely a branch of a bicameral Parliament; it is not merely a second chamber of revision and review representing the sober second thought of the nation, such as the House of Lords is supposed to be; it is that, but something more than that. It is the chamber in which the States, considered as separate entities, and corporate parts of the Commonwealth, are represented. They are so represented for the purpose of enabling them to maintain and protect their constitutional rights against attempted invasions, and to give them every facility for the advocacy of their peculiar and special interests, as well as for the ventilation and consideration of their grievances. It is not sufficient that they should have a Federal High Court to appeal to for the review of federal legislation which they may consider to be in excess of the jurisdiction of the Federal Parliament. In addition to the legal remedy it was deemed advisable that Original States at least should be endowed with a parity of representation in one chamber of the Parliament for the purpose of enabling them effectively to resist, in the legislative stage, proposals threatening to invade and violate the domain of rights reserved to the States.

That the Senate is the Council of States in the Federal Parliament is proved by the words of this section. There are to be six senators for each Original State. That the States, and not the people, are actually represented in the Senate is shown by the requirement that the "equal representation of the several Original States shall be maintained." Equality of representation, it is argued, is a natural corollary of State representation, because the colonies were, prior to federation, politically equal; equal in constitutional power and status, although not necessarily equal in territory or population. Territory and population afford no absolute test of political status. The true test is the power to govern. Crown colonies would not have been admitted members of the Federal Partnership, on terms of equality with the responsible-government colonies. Further, it was one of the terms of the federal bargain that, in consideration of the transfer of general powers to the Commonwealth, each colony represented in the Convention should, on becoming a State, maintain its original relative equality and individuality unimpaired. That could only be done by equality of representation in the Council of States. Without the adoption of that principle the federation of the Australian colonies would not have been accomplished.

After prolonged and exhaustive debates the Federal Convention, by decisive majorities, accepted the principle of equal representation of Original States in the Senate, as a positive and indispensable condition of the Federal scheme. The question had to be considered, not so much from its logical and symmetrical aspect-not so much as a principle capable of satisfactory dialectical analysis and vindication-but rather as one of the terms of the Federal compact, which is based on compromise. The problem to be solved in the case of the Australian colonies desiring to federate was similar to that which had to be solved by the framers of the American Constitution; it was-how to reconcile the creation of a strong national government with the claims and susceptibilities of separate, and, in their own eyes, quasi-sovereign States. The solution of the problem was found in a Parliament partly national and partly Federal. national part of the Parliament is the House of Representatives-the organ of the nation. The Federal part of the Parliament is the Senate-the organ of the States, the visible representative of the continuity, independence, and reserved autonomy of the States, linking them together as integral parts of the Federal union. As quasi-sovereign entities, it was contended that they were entitled to equal representation, because they were constitutionally and politically equal; inequality in the number of people within their jurisdiction did not constitute inequality in their quasi-sovereignty; in sovereignty there were no degrees. This was the only logical ground suggested. Whether it was

The

sound or unsound is not so material as the fact that a majority of the Australian communities affirmed that they would not agree to transfer a part of their political rights and powers to a central Legislature except on the condition that, as States, they should be equally represented in one of the Chambers of that Legislature.

The functions and basis of the Senate are fully explained and vindicated in the annexed quotations from standard authorities and extracts from speeches delivered in the Federal Convention. The fact that equal State representation cannot be taken away, even (as may be contended) by an amendment of the Constitution, fully warrants the presentation of the case for the Senate in the language of some of its strongest advocates.

In

"Whatever may now be thought of the reasoning of the contending parties, no person who possesses a sincere love of country and wishes for the permanent union of the States can doubt that the compromise actually made was well founded in policy, and may now be fully vindicated upon the highest principles of political wisdom and the true nature of the government which was intended to be established. It may not be unprofitable to review a few of the grounds upon which this opinion is hazarded. the first place, the very structure of the general government contemplated one partly federal and partly national. It not only recognized the existence of State governments, but perpetuated them, leaving them in the enjoyment of a large portion of the rights of sovereignty, and giving to the general government a few powers, and those only which were necessary for national purposes. The general government was, therefore, upon the acknowledged basis, one of limited and circumscribed powers; the States were to possess the residuary powers. Admitting, then, that it is right, among a people thoroughly incorporated into one nation, that every district of territory ought to have a proportional share of the government; and that among independent States, bound together by a simple league, there ought, on the other hand, to be an equal share in the common councils, whatever might be their relative size or strength (both of which propositions are not easily controverted); it would follow that a compound republic, partaking of the character of each, ought to be founded on a mixture of proportional and equal representation. The legislative power, being that which is predominant in all governments, ought to be above all of this character; because there can be no security for the general government or the State governments without an adequate representation, and an adequate check of each in the functions of legislation. Whatever basis, therefore, is assumed for one branch of the legislature, the antagonist basis should be assumed for the other. If the House is to be proportional to the relative size, and wealth, and population of the States, the Senate should be fixed upon an absolute equality, as the representative of State sovereignty. There is so much reason and justice and security in such a course than it can with difficulty be overlooked by those who sincerely consult the public good, without being biassed by the interests or prejudices of their peculiar local position. The equal vote allowed in the Senate is, in this view, at once a constitutional recognition of the sovereignty remaining in the States, and an instrument for the preservation of it. It guards them against (what they meant to resist as improper) a consolidation of the States into one simple republic; and, on the other hand, the weight of the other branch counterbalances an undue preponderance of State interests tending to disunion. Another and most important advantage arising from this ingredient is the great difference which it creates in the elements of the two branches of the legislature." (Story, Comm. on the Const. §§ 697-9.)

"The state legislatures ought to have some means of defending themselves against encroachments of the national government. And what better means can we provide than to make them a constituent part of the national establishment? No doubt there is danger on both sides; but we have only seen the evils arising on the side of the state governments. Those on the other side remain to be displayed; for congress had not power to carry their acts into execution, as the national government will now have." (Geo. Mason, in the Philadelphia Convention, 7th June, 1787.)

"The Senate of the United States is the only upper legislative chamber in the world that has the strength to resist the will of the electorate for a considerable period of time. It represents the Federal principle in the government, and, besides its legislative, has important executive functions." (Foster, Comm. I. p. 457.)

"The name of Senate is taken from a body which ruled ancient Rome; and its prototype was the body of senior warriors with whom the king or chieftain held his councils of war; but in its legislative functions it resembles the Roman tribunate more closely than its name-father, and its immediate model was the House of Lords." (Id. p 459)

"We may imagine very easily in a moment's reflection what would have been the condition of this country at this moment had the Senate of the United States been constituted on a different principle. If the size and populations of the several States had