of burgesses and councillors were further dealt with in the Consolidating Municipal Cor poration Act, 1892; (45 and 46 Vic. c. 50), sec. 11, sub-sec. 2, which enacted that a person shall not be qualified to be elected or to be a councillor unless he is enrolled and entitled to be a burgess;" whilst sec. 63 enacted that "for all purposes connected with and having reference to the right to vote at Municipal elections words in this Act importing the masculine gender include women." In this state of the law Lady Sandhurst was elected a member of the County Council. An application was made to the High Court to remove her from the office. On her behalf it was argued that the true effect of the Act of 1892 was to give a right to women to sit in the Municipal Councils, and therefore in the County Council: that as there was nothing to restrain the generality of the words, the provisions of Lord Brougham's Act should be applied, and as a woman was qualified to vote she was qualified to be elected.

The majority of the Court of Appeal (Coleridge, C.J., Cotton, Lindley, Fry, and Lopes, L.JJ.) were of opinion that, if the argument stood there, it could not be denied that there was a very strong case in support of Lady Sandhurst's claim; that there was much to be said in favour of applying the language of Lord Brougham's Act, and holding that as a woman was qualified to elect, although the masculine gender was used, she would be qualified also to be elected. Unfortunately for that argument, which by itself would be very strong, there was the 63rd section which appeared to exclude the operation of Lord Brougham's Act, by limiting the right of women to the right to vote and thus excluding the right to be elected. Lady Sandhurst was accordingly held to be unqualified. Lord Esher, M. R., entertained a stronger view than his learned colleagues, and said, that, but for sec. 9 of the Act of 1869, succeeded by sec. 63 in the Act of 1882, he would have come to the conclusion that women were not intended to be either electors or councillors, and that those sections clearly limited this qualification of women to that of electors.

In the Constitution of the Commonwealth there is no such section as that held to be fatal to Lady Sandhurst's claim. Consequently, it is quite possible that the Imperial Interpretation Act may be held to apply to the interpretation of the pronoun "he." If that be so, a woman qualified as an elector in South Australia, or in Western Australia, would be qualified to be elected a member of the Federal Parliament, not only in her own State, but in any other State. The question of qualification, whenever legally raised, will have to be determined by the Senate or by the House of Representatives respectively, as the case may arise in connection with the elections of members of those Houses (sec 47).

$130. "Of the Full Age of Twenty-one Years."

The Constitution of the United States of America, supra, provides that no person shall be a representative who is under the age of twenty-five years. The Canadian Constitution, supra, accepts, as the qualifying age of members elected in the several Provinces, the age fixed by the laws of the Provinces respectively; power being reserved to the Dominion Parliament to enact a uniform qualification.

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Sir

By standing order No. 12, the Lords prescribe that no lord under the age of twenty-one years shall sit in their house. By the 7 and 8 Will. III. c. 25, s. 8, a minor was disqualified to be elected to the House of Commons. Before the passing of that Act, several members were notoriously under age, yet their sitting was not objected to. Edward Coke said that they sat by connivance; but if questioned would be put out'; yet on the 16th December, 1690, on the hearing of a controverted election, Mr. Trenchard, though admitted by his counsel to be a minor, was declared, upon a division, to be duly elected. And even after the passing of the Act of Will. III., some minors sat by connivance.' Charles James Fox was returned for Midhurst when he was nineteen years and four months old, and sat and spoke before he was of age; and Lord John Russell was returned for Tavistock a month before he came of age.' (May, 10th ed.

p. 28.

A resident is defined as one who dwells at a place which is his home or fixed abode for some time. An inhabitant is one who dwells permanently in a place, as distinguished from a transient resident or visitor. The term of residence within the limits of the Commonwealth, necessary to qualify a person to be a member of the Federal Parliament, is fixed by the Constitution at three years. It has been held that residence is not broken by a temporary absence if there is an animus revertendi. (Holborn Union v. Chertsey Union [1884] 54 L.J. M.C. 53.)

The Constitution of the United States of America, supra, provides that no person shall be a representative who is not, when elected, "an inhabitant of the State" in which he is chosen. The Constitution of the Commonwealth gives a wider qualification, by making a person who has resided for three years within the limits of the Commonwealth qualified to be a member. The requirement of a three years' residence within the limits of the Commonwealth is insisted on in order to secure the services of members substantially identified with the Commonwealth, but not necessarily identified for three years with any particular State, as "an inhabitant of that State."

The word "resident" in this Constitution is not synonymous with "inhabitant." An inhabitant of a State within the meaning of the American Constitution is one who in good faith is a member of the State and subject to its jurisdiction and to its laws, and entitled to all the privileges and advantages conferred thereby. (Electors v. Bailey, Cl. and H. 411.) Mr. McCrary, referring to this distinction, says, "it would seem that the framers of the constitution were impressed with a deep sense of the importance of an actual bona fide residence of the representative among the constituency—a residence in the sense of actual living among them and co-mingling with them." (McCrary on Elections, § 289; Baker, Annot. Const. 5.)

The Constitution of the Commonwealth does not insist upon such a permanent residence in and identification with one State as a qualification of membership of the national Chamber. It recognizes citizenship, and residence within the Commonwealth for a period of three years, as a sufficient qualification, and one calculated to promote the view that a member of the national House is not a member for a State, or for the people of a State, but for a division which includes a quota of the people of the Commonwealth

"The choice of members of Congress is locally limited by law and by custom. Under the Constitution every representative and every senator must when elected be an inhabitant of the State whence he is elected. Moreover, State law has in many, and custom practically in all, States, established that a representative must be resident in the congressional district which elects him. The only exceptions to this practice occur in large cities where occasionally a man is chosen who lives in a different district of the city from that which returns him; but such exceptions are extremely rare. This restriction surprises a European, who thinks it must be found highly inconvenient both to candidates, as restricting their field of choice in looking for a constituency, and to constituencies, as excluding persons, however eminent, who do not reside in their midst. To Americans, however, it seems so obviously reasonable that I found very few persons, even in the best educated classes, who would admit its policy to be disputable." (Bryce, Amer. Comm. 1. p. 186.)

It is remarkable that the original English practice required the member to be a resident of the county or borough which returned him to Parliament. This is said to be a requirement at common law (witness the words de comitatu tuo' in the writ for the election addressed to the sheriff); and was expressly enacted by the statute 1 Henry V. cap. 1. But already in the time of Elizabeth the requirement was not enforced; and in 1681 Lord Chief Justice Pemberton ruled that little regard was to be had to that ancient statute 1 Henry V. forasmuch as common practice hath been ever since to the contrary.' The statute was repealed by 14 Geo. III., cap. 50. (See Anson, Law and Custom of the Constitution, vol. i. p. 83; Stubbs, Constit. Hist. vol. iii. p. 424) Dr. Stubbs observes that the object of requiring residence in early times was to secure that the House of Commons should be a really representative body.' Dr. Hearn (Government of England) suggests that the requirement had to be dropped because it was hard to find the country gentlemen (or indeed burgesses) possessing the legal knowledge and statesmanship which the constitutional struggles of the sixteenth and seventeenth centuries demanded." (Id. p. 188.)

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'The English habit of allowing a man to stand for a place with which he is personally unconnected would doubtless be favoured by the fact that many ministers are necessarily members of the House of Commons. The inconvenience of excluding a man from the service of the nation because he could not secure his return in the place of his residence would be unendurable. No such reason exists in America, because ministers cannot be members of Congress. In France, Germany, and Italy the practice seems to resemble that of England, i.e., many members sit for places where they do not reside, though of course a candidate residing in the place he stands for has a certain advantage.” (I. p. 188.)

NATURAL-BORN SUBJECTS. At common law everybody, whose birth happens within the allegiance of the Crown, is a natural-born subject. "The character of a naturalborn subject, anterior to any of the statutes, was incidental to birth only; whatever were the situations of his parents, the being born within the allegiance of the king coustitutes a natural-born subject." (Per Kenyon, C.J., in Doe d. Durore v. Jones [1791], 4 T. R. p. 308; 2 R.R. 390.) This is still a ruling principle of our law. Children born in an English ship are born within the allegiance, and an ambassador's house is also reputed to be part of his sovereign's realm, so as to confer upon the children of the ambassador born therein the character of natural-born subjects. The status of the parents is of no account, provided only the offspring be born within the realm. "A child born of foreign parents, even during an accidental stay of a few days, is fully, and until the age of twenty-one years irretrievably, a British subject." (Hall, Foreign Jurisdiction, p. 20.) The character of a natural-born subject is not given to persons born in a place which, though rightfully part of the dominions of the British Crown, happens to be at the time of the birth in the military possession of an enemy. The learning, old and new, of the subject will be found very fully in Calvin's Case (1608), 7 Coke Reps. 1, 18A; Collingwood v. Pace (1656), 1 Vent. 413; De Geer v. Stone (1882), 22 Ch. D. 243; Re Stepney Election Petition, Isaacson v. Durant (1886), 17 Q.B.D. 54; Encyclopedia of the Laws of England, vol. ix. p. 57; Westlake, Private International Law, Chap. XV.

By statute, children born out of the British Dominions, whose fathers or whose paternal grandfathers were natural-born subjects, are, except in certain cases, entitled to the rights of natural-born subjects. (See Imperial Acts, 4 Geo. II. c. 21, ss. 1, 2; 13 Geo. III. c. 21; Notes, § 193, Aliens," infra.)

NATURALIZED SUBJECTS.-Naturalization is the procedure by which an alien or foreigner is made a subject or citizen of any State. It is a legal adoption by one State of a person who is the subject or citizen of another State, admitting him to take part in its national polity, and conferring on him the rights and privileges of a national-born subject or citizen. (See Note, § 194, "Naturalization," infra.)

"An alien is disqualified to be a member of either House of Parliament. The Act 12 and 13 Will. III. c. 2, declared that no persons born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen, except such as are born of English parents), shall be capable to be of the privy council, or a member of either House of Parliament.' The 1 Geo. I. stat. 2, c. 4, in order to enforce the provisions of the Act of William, required a special clause of disqualification to be inserted in every Naturalization Act; but as no clause of this nature could bind future Parliaments, occasional exceptions were permitted, as in the cases of Prince Leopold in 1816, and Prince Albert in 1840; and this provision of the 1st George I. was repealed by the 7 and 8 Vic. c. 66, s. 2. Later Naturalization Acts have since been passed, without such a disqualifying clause. And by the 33 and 34 Vic. c. 14, an alien to whom a certificate of naturalization is granted by the Secretary of State, becomes entitled to all political and other rights, powers, and privileges, and is subject to all the obligations of a British subject." (May's Parl. Prac. 10th ed. p. 27-8.)

Election of Speaker.

35. The House of Representatives shall, before proceeding to the despatch of any other business, choose a member to be the Speaker133 of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker.

The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General.

CANADA. The House of Commons, on its first assembling after a general election, shall proceed with all practicable speed to elect one of its members to be Speaker.-B.N.A Act, 1867, sec. 44.

In case of a vacancy happening in the office of Speaker by death, resignation, or otherwise, the House of Commons shall, with all practicable speed, proceed to elect another of its members to be Speaker.-Id. sec. 45.

The Speaker shall preside at all meetings of the House of Commons -Id. sec. 46. HISTORICAL NOTE.-Similar provisions are in the Constitutions of all the Australian colonies. In the Commonwealth Bill of 1891, the clause was substantially to the same effect, with the addition of a provision that "the Speaker shall preside at all meetings of the House of Representatives; and the choice of a Speaker shall be made known to the Governor-General by a deputation of the House." At the Adelaide session, 1897, the clause was adopted in the same form; and at the Melbourne session drafting amendments were made before the first report and after the fourth report.

$133. "The Speaker."

His

"The note of the Speaker of the British House of Commons is his impartiality. He has indeed been chosen by a party, because a majority means in England a party. But on his way from his place on the benches to the Chair he is expected to shake off and leave behind all party ties and sympathies. Once invested with wig and gown of office he has no longer any political opinions, and must administer exactly the same treatment to his political friends and to those who have hitherto been his opponents, to the oldest or most powerful minister and to the youngest or least popular member. duties are limited to the enforcement of the rules and generally to the maintenance of order and decorum in debate, including the selection, when several members rise at the same moment, of the one who is to carry on the discussion. These are duties of great importance, and his position one of great dignity, but neither the duties nor the position imply political power. It makes little difference to any English party in Parliament whether the occupant of the chair has come from their own or from the hostile ranks. The Speaker can lower or raise the tone and efficiency of the House as a whole by the way he presides over it; but a custom as strong as law forbids him to render help to his own side, even by private advice. Whatever information as to parliamentary law he may feel free to give must be equally at the disposal of every member." (Bryce, Amer. Comm. I. p. 134-5.)

"The duties of the Speaker of the House of Commons are as various as they are important. He presides over the deliberations of the house, and enforces the observance of all rules for preserving order in its proceedings; he puts every question, and declares the determination of the house. As mouth of the house,' he communicates its resolutions to others, conveys its thanks, and expresses its censure, its reprimands, or its admonitions. He issues warrants to execute the orders of the house for the commitment of offenders, for the issue of writs, for the attendance of witnesses in custody, for the bringing up prisoners in custody, and giving effect to other orders requiring the sanction of a legal form. He is, in fact, the representative of the house itself, in its powers, its proceedings, and its dignity. When he enters or leaves the house, the mace is borne before him by the Serjeant-at-arms; when he is in the chair, it is laid upon the table; and at all other times, when the mace is not in the house, it remains with the Speaker, and accompanies him upon all state occasions. The Speaker is responsible for

the due enforcement of the rules, rights, and privileges of the house, and when he rises he is to be heard in silence. In accordance with his duty, he declines to submit motions to the house, which obviously infringe the rules which govern its proceedings; such as a motion which would create a charge upon the people and is not recommended by the Crown; a motion touching the rights of the Crown, which has not received the royal consent; a motion which anticipates a matter which stands for the future consideration of the house, which raises afresh a matter already decided during the current session, or is otherwise out of order. If a proposed instruction to a committee be out of order, the Speaker explains the nature of the irregularity. Amendments by the Lords to a bill which trench upon the privileges of the House of Commons, are submitted to the Speaker; and, if occasion requires, he calls the attention of the house to the nature of the amendments, and gives his opinion thereon. The Speaker also has decided that motions, which were brought forward as a matter of privilege, did not come within that category." (May's Parl. Prac. 10th ed. p. 187-8.)

"In rank, the Speaker takes precedence of all commoners, both by ancient custom and by legislative declaration. The Act I. Will. and Mary, c. 21, enacts that the lords commissioners for the great seal 'not being peers, shall have and take place next after the peers of this realm, and the Speaker of the House of Commons.' By 2 and 3 Will. IV. c. 105, an Act for the better support of the dignity of the Speaker of the House of Commons, and by 9 and 10 Vic. c. 77, an Act relating to the officers of the house, it is provided that, in case of a dissolution, the then speaker shall be deemed to be the Speaker, for the purposes of those Acts, until a Speaker shall be chosen by the New Parliament." (Id. p. 190.)

Absence of Speaker.

36. Before or during any absence of the Speakers, the House of Representatives may choose a member to perform his duties in his absence.

CANADA.- Until the Parliament of Canada otherwise provides, in case of the absence for any reason of the Speaker from the Chair of the House of Commons for a period of forty-eight consecutive hours, the House may elect another of its members to act as Speaker, and the member so elected shall, during the continuance of such absence of the Speaker, have and execute all the powers, privileges, and duties of Speaker.--B.N.A. Act, sec. 47.

HISTORICAL NOTE. - In the Commonwealth Bill of 1891, the introductory words of the clause were "In case of the absence of the Speaker." In the clause so introduced and adopted at the Adelaide session, 1897, these introductory words were omitted. At the Sydney session, the clause was altered by the Drafting Committee to its present form. (See Historical Note, sec. 18.)

$134. "Absence of the Speaker."

"Formerly no provision was made for supplying the place of the Speaker by a deputy Speaker pro tempore, as in the Upper House, and, when he was unavoidably absent, no business could be done, but the Clerk acquainted the House with the cause of his absence, and put the question for adjournment. When the Speaker by illness was unable to attend for a considerable time, it was necessary to elect another Speaker, with the usual formalities of the permission of the Crown, and the royal approval. On the recovery of the Speaker, the latter would resign, or fall sick,' and the former was re-elected, with a repetition of the same ceremonies. In 1855, on the report of a select committee, standing order No. 83 was agreed to, which enabled the chairman of ways and means, as deputy Speaker, to take the chair during the unavoidable absence of the Speaker, and perform his duties. The provisions of this standing order received statutory authority by Act 18 and 19 Vic. c. 84." (May's Parl. Prac. 10th ed. p. 191.)