Fennings Taylor
Are Legislatures Parliament? A Study and Review
Published by Good Press, 2021
EAN 4064066362522
Deputy Clerk, And Clerk Assistant of the Senate of Canada,
Author of "Sketches of British-Americans," with Photographs by Notman;
"The Life and Death of the Honourable T. D'Arcy McGee;"
"The Last Three Bishops appointed by the Crown
for the Anglican Church of Canada," & c.
MONTREAL: JOHN LOVELL; QUEBEC: DAWSON AND CO.;
TORONTO: G. M. ADAM; OTTAWA: DURIE AND SON;
NEW YORK: JOHN W. LOVELL.
1879.
Entered according to the Act of the Parliament of Canada, in the year one thousand eight hundred and seventy-nine, by Fennings Taylor , in the office of the Minister of Agriculture, at Ottawa.
THIS STUDY AND REVIEW,
Table of Contents
BY HIS FRIENDLY PERMISSION, IS CORDIALLY DEDICATED
TO THE RIGHT HONOURABLE
Table of Contents
Sir John Alexander Macdonald, K.C.B., D.C.L. ,
Table of Contents
&c., &c., &c. ,
A STATESMAN
Table of Contents
WHOSE LOVE OF LITERATURE AND ART
HAS NOT ONLY PROMPTED HIM EARNESTLY TO MUSE ON
THE WORKS OF
Theologians , Poets , Artists , Jurists and Satirists ;
BUT WHOSE SYMPATHY WITH
Human Nature
Table of Contents
HAS ENABLED HIM TO FIND REFRESHMENT IN NOVELS
AND
PHILOSOPHY IN ALL WRITINGS WHERE WIT SPARKLES,
OR
WHERE HUMOUR FINDS A TONGUE.
A STATESMAN,
Table of Contents
MOREOVER,
WHO HAS GIVEN TO HIS COUNTRY THE FRUITS OF HIS LARGE EXPERIENCE, RARE INDUSTRY AND MATURE WISDON, ESPECIALLY ON THOSE SUBJECTS THAT RELATE TO
Parliamentary Law and Constitutional Government ,
AS THEY ARE EXPOUNDED AND ENFORCED BY THE SUPREME AUTHORITY
OF THE
Mother Country .
For my part I look upon the Imperial rights of Great Britain and the privileges which the Colonists ought to enjoy under those rights, to be just the most reconcilable things in the world. The Parliament of Great Britain is at the head of her extensive empire in two capacities, one as the Local Legislature of this island, providing for all things at home immediately, and by no other instrument than the Executive power; the other, and I think her nobler capacity, is what I may call her Imperial character, in which, as from the Throne of Heaven, she superintends all the several inferior Legislatures, and guides and controls them all without annihilating any. Burke's speech on American Taxation, Vol. I, page 156, of his "Select Works" edited by E. J. Payne, M.A., Fellow of University College, Oxford.
PREFACE.
Table of Contents
The inquiry which has suggested what follows is a very interesting and important one, for it includes a good deal more than a question of grammatical construction, and rises much higher than a mere play on the value of terms that are commonly accepted as interchangeable. There need be no controversy on the etymology of the words in our title page, for their origin and derivation can easily be traced. It may at once be admitted that they are popularly regarded as synonymous and convertible; nor can their relationship be questioned, for the business of law-making is inseparably interlaced with, and necessarily includes, the duty of talking and consulting. But the question we propose to examine refers less to the ordinary kinship, than to the official use, of the two words "Legislature" and "Parliament." Such examination is the more necessary as the suggested meaning of these words, as supplied by the English statutes, is by no means identical with their common meaning, as given in the English dictionaries. Nor does this divergence exhaust our embarrassment, for the two words have been differently employed, and, consequently, differently interpreted, by the Parliament of the United Kingdom, and by the legislatures of the colonies. Were the distinctions thus drawn only verbal they would scarcely deserve attention. But they are not so. On the contrary, the Imperial Parliament has placed an exact and limited meaning on these initial words, which has either escaped the notice of, or has not been assented to by the provincial legislatures; and, as the distinction made by the former includes some important consequences to the latter, it may be worth while to give the whole subject a patient examination. Indeed, the law of the case can scarcely be interpreted apart from the history of the case, and the latter can only be gathered by a careful reference to the practice of the legislatures, as it is found in the journals and records of the provinces, and these again must be studied with the aid of those lights which actually, or presumably, have been shed on them by ministers of the Crown in England.
ARE LEGISLATURES PARLIAMENTS?
Table of Contents
A Study and Review.
CHAPTER I.
Table of Contents
Experts in the business of drafting acts of Parliament are generally careful to use the same word whenever, in the course of their work, they have occasion to refer to a given subject or to describe a special thing. To this end an experienced draftsman will avoid synonyms or equivalents, because synonyms and equivalents can-not be alike in form, and may not be equal in value, to the words whose places they are employed to take. If, for example, such an expert means "Legislature" he would not, when drafting a law, write "Parliament," as these words, though germane to one another and colloquially interchangeable, are separated one from the other by several well-drawn lines of meaning. Were such an one, for example, acquainted with the acts passed for the government of the old provinces, and of the present dominion, of Canada, he would know that the Parliament of England had been careful to use the words we have named as terms of contrast, rather than as terms of resemblance, and, consequently, that they could not be used indifferently, or interchanged without loss. It is very important to keep in mind the distinction which has thus been drawn for us by the supreme authority, as it is by no means certain that grave mistakes have not arisen, and may yet arise, from a disregard of exactness in determining the "meets and bounds" of the words "Legislature" and "Parliament." Thus, when we find these words used in an Imperial Act to describe separate powers and separate authorities, we may be sure they are so employed for distinct uses, and are intended to describe, not one, but two political organizations, whose duties, powers and privileges, unless otherwise bestowed, must be sought for in the Act in which they were granted. Being words of grave weight and import, we may expect to find them carefully guarded wherever they are used, and only repeated in the same sense in which they were at first employed. The advantage of such a practice is obvious, for the occasions for doubting about the relevancy of language are lessened, and the work of interpretation is rendered comparatively easy. The commentator is relieved of the duty of assaying the weight, or of adjusting the value, of terms that may be similar but that are not alike; that may spring from kindred germs, and yet display marks more or less pronounced of divergence, if not of contrast, in their development. Such marks as are commonly observed between the looseness of conventional and the precision of legal phrases.
