Canada, House of Commons Debates, “Property and Civil Rights”, 9th Parl, 2nd Sess (12 March 1902)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 9th Parl, 2nd Sess, 1902 at 1067-1107.
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PROPERTY AND CIVIL RIGHTS.
MR. B. RUSSELL (Hants) moved :
That in the option of this House, the time has arrived when steps should be taken to carry out the provisions of sections 94 of the British North America Act, for securing the uniformity of the lease relating to property and civil rights in Ontario, Nova Scotia and New Brunswick, and in such other Provinces as have been brought within the scope of the section since the passing of the British North America Act.
He said : The notion that I desire to commend to the favourable consideration of the House, was placed on the Order paper at the last session of parliament, but no favourable opportunity was presented for its discussion. I regard it as one of the most interesting and important subjects that could be brought to the attention of this Chamber, although I am well aware that it is not in the smallest degree of an exciting or sensational character, and I do no venture to hope that it will make so string an appeal to the consideration of the general public as many others which the House is called upon to deal. It relates to a provision of the British North America Act for securing such a degree of uniformity in the laws of the various provinces of the Dominion as may be found acceptable and advantageous to the legislatures and people of those provinces. This provision in substantially similar terms to those appearing in the British North America Act, was embodied in the resolutions of the Quebec Conference on which our Constitutional Act is founded, and I think it may be fairly presented as a compromise between the views of those members of the Conference who favoured a legislative union of the provinces, and those who opposed such a union. Or perhaps I shall speak with greater accuracy if I say that it was adopted as a solution of the difficulty that presented itself to those members of the Conference who, while they leaned towards the project of a legislative union. Realized that under the conditions that surrounded them it would be undesirable and in fact impossible for the various provinces to make such a sacrifice of their autonomy as the consummation of a legislative union would involve.
It is well known to those of us who are old enough to recall the proceedings of the historic assembly, or who have had occasion to peruse the debates to which its proceedings gave rise, that some of the most renowned and able political leaders and publicists who took part in the discussions of that period looked with great favour upon the project of a legislative union. Sir John
A. Macdonald made no secret of his preference for such a union, assuming that there had been no practical difficulties in the way of the consummation. But there were difficulties which the practical wisdom of the Conference was obliged to frankly recognize. I think it is very widely and generally assumed that such difficulties had reference solely to the peculiar conditions of language, laws and institutions prevailing in what is now the province of Quebec. No doubt the institutions of Lower Canada, guarded and guaranteed by an inviolable treaty, had much to do with the ultimate decision of the Conference, but Quebec did not stand alone in its preference for a federal union. A perusal of the debates that occurred in the legislative assembly of United Canada on the adoption of the resolutions fo the Quebec Conference, and still more a knowledgable of the discussions that took place throughout New Brunswick and Nova Scotia would, I am sure, convince any impartial man that even if there had been no province of Quebec to be incorporated in the proposed union, had the objections to a legislative union presented by the conditions in Lower Canada been wholly eliminated, it would nevertheless have been impossible to secure the assent of the remaining provinces to surrender of their provincial autonomy. You will find in those discussions references to the enormous extent of the territory to be administered and the immense variety of subjects with which its legislature, under such a union drawn from the experience of the parliament of the United Kingdom, where an assembly wielding the sovereignty and dealing with the interests of a worldwide empire is absurdly called upon from time to time to pass laws doe the regulation of gas works or a tram service service in some obscure town in a remote corner of the island. You will find, moreover in those discussions evidence of the sensitiveness of some fo the smaller provinces to an apprehension lest under a legislative union they would forfeit the right of immediate and direct control over matters that they regarded as of vital importance to their happiness and welfare. These considerations, let me repeat even apart from any special desire on the part of Lower Canada would have made it impossible to adopt a legislative union. But in addition to all these arguments which in themselves would have been conclusive, the Conference had to take into its account the deep and fond attachment naturally and properly felt by the people of Lower Canada for the laws and institutions inherited from their forefathers and guaranteed to them by treaty which will be forever held sacred, so long as truth and justice and national good faith remain the stable foundations of British sovereignty. We may differ upon many questions of public policy in this House, and we may differ
in our judgments as to many of the great questions that have arisen from time to time during the period that has passed since the Act of Confederation was adopted, but I take it that there are no two opinions in this House as to the wisdom of the conclusion that was arrived at by the Conference at Quebec when the project of a legislative union in so fat as it has ever been mooted at all, was definitively set aside as impracticable and the federal principle was frankly and unreservedly adopted as the basis of our union. I should for no support and expect no support for this resolution if I supposed that it could be justly objected to as menace ing in the faintest degree the fundamental principle of federalism upon which this confederation stands, it contains no such menace. It is open to no such objection.
What is the essence of the federal principle in so far as it relates to the question in hand? The essence of that principle is that in regard to all matters upon which it may be conceived that the several provinces composing the union may have different views and cherish different ideals as to what is just and expedient in their legislation, the exclusive authority to legislate shall be vested in the provincial legislature. That is one proposition and one that is of the utmost importance to the well-being of the Dominion. But that proposition connotes another which is equally important and equally necessary to the adequate statement of the principle, namely, that in all matters upon which it is for the general good that a uniform system of legislation should prevail throughout the Dominion, the legislative authority should be committed to a central parliament having power to make its edicts binding upon all. It would not be pardonable in me to occupy the time of the House with proofs or illustrations of such an obvious and palpable truism. A comparison of the subjects of legislation assigned to the central parliament and to the provincial legislatures respectively would be simply a pretentious presentation of that with which every hon. gentleman is already familiar. But one single illustration may perhaps be permitted for the reason that it lies so directly in the path that this discussion is bound to follow. The subject of property and civil rights has been assigned to the provincial legislatures. Why? Because in one at least of the provinces that compose the union and perhaps to a certain degree in more than one province different views prevail from those that find acceptance in other provinces as to what is just and expedient in the laws that govern the ownership, the enjoyment, the transfer and the devolution of property, either real or personal. The law of contract has been held to come within the definition the covers the general subject of property and civil rights, and there were at the time the Confederation Act was adopted variant provisions in the
several provinces as to the validity and authentication of contracts and variant provisions as to the evidence by which they should be proved in courts of justice. And yet one most important class of contracts, one most important species of property was committed to the exclusive legislative jurisdiction of this Dominion parliament. Why? Because bills of exchange and promissory notes are of such a cosmopolitan character, they travel so freely and so widely from province to province, drawn in one province, payable in another, indorsed in still another and perhaps in other more than one, that it was above all things desirable that the rights arising out of their creation or resulting from their dishonour, should be determined by a uniform body of principles, no matter in which of the various provinces the contract happened to be made, or in which of them it should happen to be broken. Furthermore, the laws of the various provinces in regard to bills and notes were substantially uniform already and no possible reason could be suggested for withholding from the central parliament the authority to legislate upon the subject. On other species of property and as to other descriptions of contract, the case was entirely different. Had they been assigned to the parliament of the Dominion the apprehension was perfectly reasonable one that legislation might be adopted that would revolutionize in one of the provinces that system with which the people of that province were familiar, to which they were greatly attached and which they regard as being founded on more equitable principles and developed according to more logical and scientific methods than the laws prevailing in other parts of the Dominion. It is no part of my undertaking to-day to pass judgement upon this preference. I am not sure that any claim of superiority is made on the system of law that they have inherited and developed. It is sufficient for all purposes to know that they prefer it and that they have an absolute and undisputed right to be the sole and final judges in the matter. If a claim of superiority is made we may for the purposes of this argument without hesitation concede it. Possibly a fuller knowledge of the matter and a greater freedom from prepossessions than is possible to those of us who have been trained in a different system would dispose us to make the concession for all purposes whatever. But whether such a claim is made or not, whether we concede the claim or not, it must still remain true, that as to the other provinces of the Dominion, or most of them, there are many subjects, and that more especially among those falling within the definition of property and civil rights, upon which a uniform body of legislation would be as great a blessing as the uniformity of our legislation on bills of exchange and promissory notes has been found to be to the
Dominion as a whole. The law that regulates the sale of personal property presents as favourable a field for assimilation throughout the provinces in which the common law prevails as the law of bills and notes presented for assimilation throughout the Dominion at large. The principles applicable to the formation, operation and discharge of contracts generally presented precisely the same conditions. Of the provisions of the statutes of Elizabeth against fraudulent conveyances and voluntary conveyances to the prejudice of bona fide purchasers, the same thing is to be said. So as to the principles that govern the validity and authentication of the contracts of incorporated bodies, so as to rules of evidence in civil cases. So for the most part of the laws that govern the mutual rights an obligations arising out of family relationship, including the rights of the husband and the wife in the property of each other. So as to the devolution of real estate and the succession to personalty. There is even now in respect to all these and many other subjects that might be named, a large degree of uniformity on the legislation that has been adopted by the various provinces of the Dominion, so great a degree in fact that it is a matter of wonderment that it has not long ago been deemed advisable to consider whether an actual and absolute uniformity should not prevail in all the provinces whose system is founded upon the common law.
I have referred to these subjects only on the most cursory manner and I have done so merely by way of preface to the observations that I propose to quote from the speech of Sir John A. Macdonald in moving the ratification of the Quebec Resolutions on the parliament on United Canada. All that I have been saying was obvious to the clearheaded and far-seeing statement who constituted that Conference at Quebec, and with a view of providing for such a uniformity as was desirable in the legal systems of the provinces governed by the common law they had embodied among the powers to be exercised by the Federal parliament the following, which was numbered 33 :
Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or any of the courts in these provinces ; but any statute for this purpose shall have no force or authority in any province until sanctioned by the legislature thereof.
Referring to this resolution, Sir John A. Macdonald said :
The 33rd provision is of very great importance to the future well-being of these colonies. It commits to the general parliament the rendering uniform all or any of the laws relating to property civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or nay of the courts off these provinces. The great principles that
govern the laws of all the provinces with the single exception of Lower Canada are the same, although there may be divergence in details, and it is gratifying to find on the part of the lower provinces a general desire to join together with Upper Canada in the matter and to procure as soon as possible an assimilation of the statutory laws and the procedure of the courts of all those provinces. At present there is a good deal of diversity. In one of the colonies, for instance, they have no municipal system at all. In another the municipal system is merely permissive and has not been adopted to any extent. Although, therefore, a legislative union was found to be almost impracticable it was understood, so far as we could influence the future, that the first act of the future government should be to procure an assimilation of the statutory law of all those provinces which has its root and foundation the common law of England. But to prevent local institutions from being over ridden, the same section makes provision that while power is given to the general legislature to deal with this subject, no change in this respect should have force and authority of law in any province until sanctioned by the legislature of that province.
If I had nay fear that the project outlined in the motion now before to wear an utopian aspect, that the discussion of such motion should seem to have an air of unreality and visionariness, I should point to these words of a statesman, who, whatever may have been thought his failings and shortcomings, was never accused by his bitterest enemy of the crime of visionariness or undue ideality. Far from it, Sir, he was a politician of a proaction character, as we all know, and, that, in the intenser meaning of the term. When so practical a statesman as Sir John A. Macdonald used the language I have quoted, he most undoubtably anticipated that among the very first measures of the Federal parliament would be an Act to carry into effect the wise provisions of this section for securing the uniformity of our provincial laws. These were no mere idle words inserted in the statute to indulge the fad of some visionary dreamer, nor was this provision intended or expected to remain upon the state-book sterile and unproductive for more than thirty years. Sir John A. Macdonald expected to see it acted upon among the first enterprises of the newly constituted union. Why has it remained for so many years a mere unrealized dream? Why, is it that, so far from seeing it fructify in a useful and serviceable body of legislation, we have seen it remaining for so many years—the good third of a country—as lifeless in appearance, yet, happily as capable of being clothed with life and vigour, as those seeds we have all heard of that were found in the hands of the Egyptian mummy.
Well, it may be that the reasons are not so difficult to find. During the earlier years of our history as a union, there were many problems to challenge the attention of our public men and many tasks awaiting their
busy and weary brains. There were sectional claims and aspirations to be satisfied or appeased. There was a recalcitrant province to be pacified. If there were not racial antagonisms to be reconciled there were racial suspicions to be removed. There were vast material interests clamouring for recognition, an Intercolonial Railway, the seal and bond of union, to be constructed, canals and waterways to be deepened and enlarged, conflicting views of fiscal policy to be adjusted, and all the vast and varied concerns fo a nascent political community to be harmoniously regulated and directed to a common issue in the welfare of the new Dominion. No very great effort of the historical imagination is required to enable us to understand why this subject was under circumstances allowed for the moment to sleep. But I venture to hope that the time has at length arrived when we may at least begin to think seriously about the matter, and to that end I will ask the House to permit me to set forth in order the advantages that in my judgment may be expected to follow the accomplishment of this task. I may not enumerate them in their logical order or even in the order of their importance. I will present them in the order in which they have occurred to my own mind.
First, then, by rendering our legislation uniform we may avail ourselves to the fullest possible extent and on the widest possible scale of the improvements in legislation that have been effected bu the mother country in recent years. Let me amplify this proposition b y reference to an illustration that has been already used for another purpose. A number of years ago Mr. M. D. Chalmers, as he then was, attempted to draw out and present in the form of a digest, a series of plain, perspicuous, intelligible propositions, embodying the legal doctrines and principles relating to the subject of bills of exchange and promissory notes—principles and doctrines which he deduced from the decisions of the courts extending over several centuries, running up into the hundreds and covering pages in the law reports that might be numbered by the thousand. In fact he has told us himself in an article in the ‘Law Quarterly Review’ that for the purposes of his work, whether the digest or the code that was subsequently founded upon it, I am not quite certain which, he read twenty-five hundred cases in the law reports and seventeen statutory enactments. His digest was subjected to the fire of professional criticism and was found to be an adequate and satisfactory statement of the law on the various points with which it dealt. After a trial of several years its various propositions were embodied in the form of an Act entitled ‘An Act to codify the law relating to bills of exchange and promissory notes.’ This was passed by the English parliament in 1882. It was, I believe, the first experiment in codification ever maker by the Imperial parliament. It
was not absolutely perfect. It did not even approach as nearly to perfections as legal knowledge and skill in the lucid expression of legal principles might have made it. It had to run the gauntlet of two Houses of parliament, each containing a number of members who considered themselves better authorities on the matter than Mr. Chalmers, who had made the subject his specialty. But nobody could deny it made the law more accessible and more certain, that it set at rest a number a debated questions and was on the whole a luminous exposition of the legal doctrines and principles relating to the subject with which it dealt. That it was not perfect has been admitted. It must be confessed that one of its sections gave rise to protracted litigation that could not have arisen if it had never been passed, but the amount involved was enormous, the litigants were wealthy and the result of the litigation established a general principle applicable not only to this piece of legislation but to all similar codifying statutes that may from time to time be adopted in any part of the empire. It was as to the particular section in question in the case referred to that the draftsman of the statute was frank enough to quote against himself the remark attributed to Lessing when one of his disciplines questioned him as to the meaning of a passage in one of his lectures. ‘My young friend’ said the great philosopher, ‘when I penned that passage, only god and myself knew what it meant, and now only God knows.’
The Bills and Notes Act was passed in England in 1882. Some years after it had been in force in the old country attention was directed to it in a series of letters in the ‘Toronto Mail,’—the parentage of which modesty forbids me to disclose—and the government of Canada was urged to simplify and clarify the law for us in this country by enacting the statute here. The inference from post hoc to propter hoc is not always conclusive and I have no means of knowing whether it would have any validity in this particular case. It is sufficient to say, and it is the only material thing for us to know that within a twelvemonth from the appearance of this publication the statute was introduced here and passed in 1890, with some very slight modifications to make it more in accord with the mercantile and banking usages that had grown up in this country. It was been accepted by the banking institutions as a great boon and the public spirit and unselfish scientific instinct of the legal profession has welcomed it with equal cordiality, although rendering the law more simple, ascertainable and accessible it has to that extent taken away their usefulness and reduced their emoluments.
Since the passing of the Bills and Notes Act, other experiments in codification have been made by the Imperial parliament. The law relating to Partnership and the law
relating to the Sale of Goods have been embodied in codifying statutes drawn by the most competent hands, and which before being adopted by parliament have gone through very much the same ordeal by whim the Bills and Notes Act was tested and proved. The Sales of Goods Act was introduced in the Imperial parliament in 1888. It remained in process of incubation for five Yeats and was not enacted as a statute until 1893. It also is not perfect. One of the most competent judges pronounces the Act as in parts by no means easy to interpret, and occasionally very obscure, but in justice to the learned draftsman he adds that the difficulties for the most part if not in all cases have sprung from additions and emendation introduced into the Bill in its passage through parliament. But in spite of its defects, which this parliament, with the ten years experience of the working of the statute could very easily avoid, it remains a useful and convenient statement of an important branch of the law of personal property. Now there are precisely the same reasons for the enactment of this state in all those portions of the Dominion where the common law prevails that there was for the enactment of the Bills and Notes Act for the Dominion as a whole. None of the provincial legislatures, so far as I am aware, has yet adopted this enactment. It may be confidently predicted that several of them will sooner or later do so, and it may be eventually accepted by them all. Let us anticipate for a moment what in that case is most likely to happen. In every legislature there will be found some hon. members who deem themselves competent to improve upon the work of Mr. Chalmers. Some will amend one set of provision, some another, and some a third. In place of a uniform code of law applicable to all the provinces in which the common law prevails and in relation to a contract as to which no conceivable reason can be suggested for any differences in treatment in ant of those provinces, we may expect to see a variety of different statutes creating wholly unnecessary confusion in respect to a body of legal principles who might throughout the greater part of the Dominion so easily be made uniform, simple, intelligible and accessible to all who have occasion to apply them to the transactions of daily life.
My friends from the province of Quebec will, I know be the first to realize the importance of the considerations that I have just referred to. Their studies enable them, better than many of us can, to understand the inconveniences of an anomalous jurisprudence and to appreciate the advantages that flow from its uniformity and simplicity. Their ancestors in the old land enjoyed in fullest measure the blessings of a jurisprudence untouched but he meddlesome fingers of the law reformer. They will recall the conditions described with such amplitude of learning by my hon. friend the
member for Gaspé (Mr. Lemieux) in his work ‘Sir les Origins du Droit Franco-Canadien.’ They will remember that Voltaire, referring to those conditions remarked, in his accustomed vein of satire that the traveller in France had to change his laws as often as he changed his horses. Sir Henry Maine has told us that at that time ‘France was smitten with the curse of an anomalous and dissonant jurisprudence beyond every other country in Europe. One great division ran through the country and separated it into ‘Pays de Droit Ecrit’ and ‘Pays du Droit Coutumier,’ the first acknowledging the written Roman law as the basis of tie jurisprudence, the last admitting it only so far as it supplied general forms of expression and courses of judicial reasoning which were reconcilable with local usages. The sections thus formed were again variously subdivided. In the ‘Pays du Droit Coutumier,’ province differed from province, county from county, municipality from municipality in the nature of its customs. In the ‘Pays de Droit Ecrit’ the stratum of feudal rules which overlay the Roman law was of the most miscellaneous composition.’ I hope my friend (Mr. Lemieux) will, in the course of this discussion, show us how this condition of things has been improved upon by the labours of French jurists in the old country and in this, for I am well assured that such an exposition will powerfully reinforce the argument that I have been endeavouring to present. I cannot imagine that our friends from he province who have been lifted our of the horrible our and out of the miry clay of an unreformed jurisprudence will permit their neighbours to continue floundering in the same Serbonain bog of ‘anomaly and dissonance.’ They will sympathize with our aspirations after uniformity, consistency and simplicity and when we call for so easily accessible a boon as a law to regulate throughout our provinces the formation, authentication proof, operation and discharge of a contract of such every day occurrence as the contract for the sale of goods, I will be surprised and disappointed if we do not have their cordial assistance and co-operation.
But the Acts that I have mentioned, the Bills of Exchange Act, the Partnership Act, and the Sale of Goods Act, do not exhaust the possibilities if improvement in the form of English law. A bill has been introduced for the purpose of codifying the law relating to marine insurance. It has not yet been passed without the most mature consideration, but we may be well assured that a bill on this subject from the hand of Judge Chalmers or some other equally competent will eventually be enacted and that other branches of the law will from time to time be taken in hand subjected to the same treatment that has been applied to the subjects that have already been so dealt with. Now,
It is of the highest importance in the interest of scientific jurisprudence, it is of the highest importance in the interest of simplicity, lucidity and certainty in the statement of the law that we should be in the best position possible to avail ourselves of the labours of the jurists of the mother country in this field, and that wherever a codifying statute has been proved by experience to present a lucid, correct and orderly statement of the law, we should be in a position to make it applicable to all those portions of the Dominion to the circumstances of which it is adapted.
But there are subjects which we do not need to await the action of the British parliament or to be dependent upon the labours of old country jurists. Consider such a matter as the constitution of joint stock companies, the rights of their individual members, the powers of the governing body, the protection of minorities, the authentication and proof of their contracts, the provisions for putting them out of business when they should no longer be cumbering the ground, in other words their winding up and the distribution of their assets among their creditors or stockholders as the case may be. Let me ask the House if it would not be an inestimable boon to this country that upon these subjects there should be visions applicable not merely to companies incorporated under Dominion legislation, but to all companies throughout the Dominion so far as legislation by the combined action of federal and provincial authority can be adapted to the accomplishment of that result. On this and other subjects to which I shall not refer in detail I am entirely unable to anticipate what possible objection can be made to the proposal.
I have dwelt long enough on this aspect of the question. Let me refer to another of the advantages to flow from the adoption of this resolution. The wider the area over which a statute is operative the sooner its meaning becomes settled and understood. No matter with what degree of precision the terms of a statute are drawn, its provisions must of necessity be more or less in need of interpretation. It is impossible for the draftsman of a statute to force all the possible cases to which its provisions are meant to be applicable, and equally impossible to anticipate with certainty the form of words he has used. The meaning of those terms can only be settled by the results of the litigation in which the statute is invoked. Doubtless the original framers of the statute for the prevention of frauds and perjuries imagined that they were passing an Act the terms of which were plain, clear and intelligible, drawn up on language which, if not understood of the purple would be easily comprehended by the class of trained interpreters who would be called upon to advise upon or in-
terpret its provisions. If these were indeed their expectations, how have they not been falsified by the event. If it was no exaggerated praise of that statute to say as one luminary whose name I cannot at the moment recall is reported to have said, that every line of it was worth a subsidy, it was certainly a valid report to answer that every line of it had cost a subsidy.
If you will examine such a work as Professor Langdell’s selection of cases on the sale of goods, a subject to which one of the sections of this famous statue specially refers, you will find, what I believe is equally applicable to every other important section of the statute, that there is not a single significant praise contained in it that has not given rise to at least a score of cases in the courts, and that some of its terms have required for their interpretation not less than sixty or seventy cases. It is upon facts like this that the objectors to codification base their arguments in opposition to that project. But in the absence of a state the case is to say the least no better. The law of contract in tits general outlines has been more few demo the operations of the legislatures whether for good or evil than any other branch of the law. Examine then if you please, some such work as Langdell’s select cases on contract, and note how many Yeats of litigation it required ; how many decisions of the courts were necessary to settle so apparently simple a question as the precise point of time at which a contract by correspondence becomes complete and burning on both parties by the communication of an offer, and its acceptance. You will find no less than twenty-nine cases massed by that learned writer upon this one topic. Those cases range over a period from 1789 to 1876, and after a hundred years of litigation Mr. Langdell was unable to answer one of the most obvious questions that could be asked and a question with reference to a contingency that might be expected to happen any day in the week. Even at this day, although one question that he could not answer has been settled since his publication by a later decision, two of the simplest question that could be asked remain unsettled yet. It is not, according to the best test writer on the subject, regarded as absolutely certain that the rules developed for the regulation of contracts by correspondence apply in their entirety to communication bu the telegraph, and two of the most widely accepted and authoritative text books present diametrically opposite opinions on the question whether the acceptance of an offer once committed to the post office can be recalled and cancelled by telegram before its actual communication to the person whom it has been addressed. It is difficult to see what grounds such a method of constructing a legal system can claim any
Very clear superiority over the much abused expedient of codification. But the advocacy of this motion does not necessarily involve the difficult question of codification, and I should be sorry to have its success dependent upon my convincing the House of the feasibility and utility of codification. The point is that whether you depend for the development go your system of jurisprudence upon its evolution by the unaided operations of the judiciary or seek to hasten and give direction to its development by the wise and sane legislation, you are still dependent to a greater or less degree upon the accidents of litigation for the principles of law that it will embody. The debt that jurisprudence owes to the individual litigant has never been adequately acknowledged. The quarrelsome citizen who goes to the law with his neighbour may imagine that it is for himself, that he is spending his own money and destroying his neighbour’s peace. Let that be his delusion. Or to speak more wisely, let him console himself whether successful to not in the immediate object that he may Eva win view with the consciousness that he has done the state some service, and more especially if he is a defeated litigant let him pocket his disappointment and allow his layer to picket his fees, all knowing that he has made a contribution to the jurisprudence of his country, that far outweighs in its importance any momentary disappointment to which he has been subjected. In the vivisection controversy I remember having seen somewhere a reflection on the satisfaction that it night br conceived to afford to a dog that was being stretched upon the table of the vivisector were he only rational enough to understand and altruistic enough to appreciate the boon that his torments were destined to confer upon the human race in the alleviation of suffering and the prolongation of human life. The litigant who is stretched upon the table of the vivisector in this case is rational of not always altruistic and he should know the full extent of the consolations of of which he may avail himself. The blood of the martyrs we are told is the seed of the church. In the same manner may we not say that the tears shed and the taxed costs paid by successive generations of suitors have been the gentle showers and stimulating manurance that have enriched and beautified that admirable jurisprudence in whose shadow we securely dwell.
But, perhaps the subject does not lend itself to either humorous or poetic treatment. Let me return to plain prose and cold-blooded common sense. The point I am endeavouring to make is that the wider the field over which a statue is operative, the more frequent the cases that arise calling for the interpretation of its terms, the more quickly the meaning of those terms is reduced to certainty, obscurities are cleared up, ambiguities are removed, and amendments adopted where found to be
necessary for the elimination of inelegance and the removal of inconsistencies. Instead of each little jurisdiction groping about in darkness and uncertainty because of the variant provisions of the statutes and the impossibility of b borrowing light of all concentrated upon the same difficulty, the learning and the wisdom of all directed to the same problem and a jurisprudence evolved which must of necessity be characterized by higher wisdom, broader learning and more perfect consistency and lucidity than it would be possible to attain in the absence of the uniformity of legislation towards which this resolution is directed.
Let me refer to one more advantage that I contemplate from the adoption of this proposal. A large part of the body of positive law actually operative in this country and administered by our courts of justice consists of principles of the common law of England which as colonists we are supposed to have brought with us to this country, and the statutes passed by the Imperial parliament before we had legislatures of our own. But all the common law of England has not come with us to this country. Some of it has been ad judged unsuitable for exportation whether because it was too good for us, or because it was not good enough, it is not necessary now to inquire. And so as to the old statute law of England, while some of it has been held to be in force in the colonies, some of it has been held to be inoperative here. Conflicting decisions have been made in different provinces as to the extent to which it is operative on this side of the ocean. In my own province it has been decided that while the whole common law of England is in force there, excepting such parts as are obviously inconsistent with the circumstances of the country, no part of the old statute law will be received unless it is obviously applicable and necessary. Other provinces have adopted substantially the same criterion. But the question must always present itself how are you to determine and by what lights are you to determine whether a given statute is or is not obviously applicable to the conditions of a province of the empire. Every ten years or thereabouts some enterprising practitioner makes discovery of some ancient statute of the realm which he contends is applicable to the circumstances of the province and the rights of suitors are thrown into a state of uncertainty until the merits of the contention are determined. Let me be permitted to say that this condition of things is not worthy to be dignified with the name of law. It is not law. It is the absence, the direct negation, of law ; nay, more, it is the antithesis of law. It is not cosmos but chaos. In the province of Ontario they have done better. They settled the question once for all by a statute, 32 George III., and I observe that a
… compilation has been recently issued under the authority of the Ontario government, presenting among other things in black and white in authoritative terms all the statutes of the parent country which are in force in the province of Ontario. In so far as these statutes relate to property and civil rights, I see no reason why the other provinces should not gladly follow the lead of Ontario. I am convinced that so far as my own province is concerned we would thus clear up many doubts and solve some questions that have hithereto been simply insoluble puzzles.
A still further advantage that would without doubt result from the adoption of this resolution would be the removal of anomalies and the correction of mistakes that occur to a greater or less extent in the laws of all the provinces. I would not care to detain the House with details in illustration of this point. I have had occasion in an essay that has been in print a number of years, to mention some illustrations under this head, and it will not be necessary to elaborate the matter further. It must be perfectly obvious that the moment a serious attempt is made to enact in the form of a statute a body of laws relating to property and civil rights for any considerable group of provinces, errors and anomalies must be brought to light which under our present system may go undiscovered for many years until some unfortunate suitor makes shipwreck of his estate and property because of their accidental discovery. The law relating to the consolidation of mortgages, for example, as settled by the jurisprudence of the equity courts, presented a case of possible injustice and surprise which called for the intervention of the Imperial parliament in the Conveyancing and Law of Property Act of 1881. This amending Act has therefore been in force in England for over twenty years, but some of the provincial legislatures have not yet discovered the fact of its having been passed, or if they have discovered the statute have this far failed to realize the dangers against which it was meant to provide. There are without doubt similar cases in several of the provinces that would be brought to light the moment a serious attempt was made to grapple with the subject.
One further consideration and I shall have concluded my presentation of the case. I should consider it far from being the least of the benefits that would flow from the adoption of this resolution, that it would help eliminate from our jurisprudence one cause of conflict between Federal and provincial authority. The cases on the British North America Act are full of instances which go to show how difficult it is to draw the line with precision between the legislation with reference to property and civil rights which is within the competence of the provincial legislatures and that which trenches upon the legislative authority of this parliament. Several of our provincial legislatures …
have undertaken to pass laws which seem for which seem for all the world to resemble a bankrupt law. They have certainly been sailing very close to the wind, and although the statute has been sustained by the Court of Appeal in Ontario, it is not absolutely certain that the last word has been said. A generation that has witnessed the game of see-saw that has been played between the courts on this side and on the other side of the Atlantic on such subjects as the Manitoba school law, the liquor license question and the question of the fisheries, will not be too sanguine as to the finality of any settlement until the highest court has spoken, and after the last word has been spoken by the highest court it seems that the services of the interpreter may still be called for. In any event, it would surely be an obvious advantage that in as many cases as possible where the legislative authority is debateable the question should be set at rest, as it would be under the provision of this section by the combined action of the Federal and provincial legislatures on all questions of property and civil rights throughout the provinces to which the provision applies.
I trust I have been able to convince the House that there is at least something to be said in favour of the motion of which I have given notice. I have not exhausted the subject, whatever effect I may have produced in that kind upon the House. I have not stated even in outline all the arguments that could be presented in favour of the motion. To sum up the question in a few words, there were, speaking broadly, three classes of subjects of legislation which by the British North America Act were to be parceled out between the Federal parliament and the various provincial legislatures. On one of these classes of subjects the requirements of all the provinces are precisely the same, the legislation is properly uniform, and for that reason the authority to legislate is committed exclusively to this parliament, saving, of course, the veto of the sovereign. As to another class of subjects, it is conceivable that each and every province may require provisions peculiar to itself, either because of exceptional conditions or for the reason that in respect to them it is deemed advantageous to the public good that the direct and immediate control by the provincial legislatures should be retained. As to this class of subjects the plenary authority to legislate has for one or other of these reasons been committed, subject to the right of disallowance, to the provincial legislatures.
Between these extreme classes there is a middle class of subjects with respect to which one province and possibly more than one may call for exceptional treatment, while as to all the others there is no reason whatever in the nature of things why their legislation should not be precisely the same. It is to this class of subjects that the provisions of section 94 refer, under which power
is given to this parliament to legislate for the purpose of rendering the system of laws of those provinces uniform, with the proviso that no such legislation shall be operative in any province until it has been ratified by the legislature of that province. The exercise of this power was confidently anticipated and assumed as a matter of course by some of leading spirits in the conference at Quebec. It was desired more especially, Sir John A. Macdonald has told us, by the lower provinces, which are the smaller provinces, and which one might have been inclined to fear would be a little jealous of their independence and inclined to retain it. The exercise of the power would, as I have shown, improve the body of our laws by giving us the benefit of those enactments upon which the law-reforming zeal and intelligence of the mother country have been engaged. It would render our system more certain, more intelligible and more accessible than it can ever otherwise become. It would result in the correction of dangerous mistake and the removal of awkward anomalies. It would obviate a number of embarrassing questions of conflicting constitutional authority, and finally by conducting to the production of a harmonious and consistent body of jurisprudence, it would tend to realize that fitness for universal application which is the essential characteristic of anything that can be properly dignified with the name of law.
Mr. T. B. FLINT (Yarmouth). It was originally expected that the hon. member for New Westminster (Mr. Morrison) would second the resolution of the hon. member for Hants (Mr. Russell) and bring forward a few observations probably from the standpoint of British Columbia. That hon. gentleman, not being well this afternoon, asked me if I would take his place as the seconder of this resolution. I do not profess to be so throroughly enthusiastic over the prospect of the uniformity of the legislation of the Dominion and the various provinces as the hon. mover of the resolution, but I think it will be admitted by every one who has heard the admirable and well chosen observations of that hon. gentleman that he is entitled to the thanks and congratulations of this House for the able manner in which he has represented a case, perhaps not of overwhelming importance, but one of great general interest and one which may become important from time to time. If any steps are taken in this legislature for promoting uniformity in any branch of legislation appertaining to property or civil rights, or to the procedure of the courts, no doubt that hon. gentleman will receive a great deal of credit for his early advocacy of, in some respects, so desirable a consummation. It is easy to see, when you read between the lines of the debates and conferences on the British North America Act and the proceedings which led up to the adoption of the Act,
that clauses 94 and 97 are largely the results of compromise upon some important questions. The statesmen who came forward to promote the union of the provinces might be described as consisting of two classes, one favourable to legislative union with one parliament for the whole Dominion, legislating upon all the subjects which are now divided between the various parliaments, and another favouring the present constitution. But it was early seen and admitted by the most sagacious of these statesmen that the difficulties were enormous in the way of such a consummation not only because of the peculiar history and jursidicsal system of the province of Quebec but owning to the difference in the early trend of affairs in the various provinces which form the union as well as to the new circumstances arising from the introduction of new provinces into the union. Therefore, I think it will be generally admitted that the clauses in question were inserted rather as saving clauses, or as suggestions of what was hoped for at some future time than as a serious attempt at constitutional legislation. The late Sir John A. Macdonald, who has been alluded to, and whose remarks in part, have been quoted, practically describes the situation as I have laid it down in some of his observations when the resolutions were being adopted by the parliament of old Canada. I will only quote a few words in order to show the view which that statesman took of this question and the reasons which animated him in supporting the placing of these clauses in the British North America Act. After describing the movement which led up to confederation and the difficulties in the way of a uniform system of laws for the whole of the provinces, he says: —
So that those who were like myself in favour of a legislative union, were obliged to modify their views and accept the project of a federal union … because, although the law of those provinces is founded on the common law of England, yet every one of them has a large amount of law of its own. Colonial law framed by itself and affecting every relation of life… We found in short that the statutory law of the different provinces was so varied and diversified that it was almost impossible to weld them into a legislative union at once … And when we consider that every one of the colonies has a body of law of this kind and that it will take years before those laws can be assimilated, it was felt that at first, at all events any united legislation would be almost impossible … I am happy to state—and indeed it appears on the face of the resolutions themselves—that as regards the lower provinces, a great desire was evinced for the final assimilation of our laws. One of the resolutions provides that an attempt shall be made to assimilate the laws of the maritime provinces and those of Upper Canada, for the purpose of eventually establishing one body of statutory law, founded on the common law of England, the parent of the laws of all those provinces.
The clauses have been referred to in the resolution of the hon. member for Hants
are the clauses which in new form were subsequently placed in the Act. Clause 94 is peculiar in one aspect, to which I will call the attention of the House, one well worthy of the consideration of those who anticipate legislating upon any of the subjects mentioned by my hon. friend or upon any other subjects of a cognate character. Section 94 is as follows: —
Notwithstanding anything in this Act, the parliament of Canada may make provision for the uniformity of all or any of the laws relative to property and civil rights in Ontario, Nova Scotia and New Brunswick, and of the procedure of all or any of the courts in those three provinces, and from and after the passing of any Act in that behalf, the power of the parliament of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be un-restricted; but any Act of the parliament of Canada making provision for such uniformity shall not have effect in any province unless and until it is adopted and enacted as law by the legislature thereof.
Later, when the conference came to consider the appointment of judges, looking back to section 94, they adopted section 97 along the same lines. It provided that: —
Until the laws relative to property and civil rights in Ontario, Nova Scotia and New Brunswick, and the procedure of the courts in those provinces, are made uniform, the judges of the courts of those provinces appointed by the Governor General shall be selected from the respective bars of those provinces.
I quote this section to show that the time may possibly come, with the enactment of laws under the programme laid down by my hon. friend, when he judges will be selected indifferently from any of these provinces for the Bench of either of the three provinces. But, the point to which I wish to call the attention of the House at this juncture is that the powers, with their wide and far reaching effects which were laid down by my hon. friend might not possibly affect other provinces. I speak with diffidence, but it appears to me that no legislation that this parliament has power to pass without an amendment to the British North America Act can affect other than the three provinces named, Nova Scotia, New Brunswick and Ontario. Therefore, I think when the time comes the new provinces in the west, and Prince Edward Island as well as British Columbia, would be outside of the pale of the legislation suggested by the hon. mover of the resolution. How, either of these provinces in which it would be desirable and advisable to apply such legislation—because they inherit the same system of laws and present none of the difficulties which meets us in the province of Quebec—how, they ever can be made amenable to that constitutional system, I do not see. I do not think that the provisions were admitted into the union would redeem the case at all, because of the peculiar wording of the clause which
provides that in all other Acts which by necessary intendment would apply to these provinces, this parliament would have power to legislate. In the Manitoba Act, the wording of that clause which is well known to most of us, is somewhat different from the wording of what is intended to be the same clause in the British Columbia Act. The provisions as regards British Columbia is a general clause of this kind:
10. The provisions of the ‘British North America Act, 1867,’ shall (except those parts thereof which are in terms made, or by reasonable intendment may be held to be specially applicable to and only effect one and not the whole of the provinces comprising the Dominion, and, except so far as the same may be varied by this minute) be applicable to British Columbia in the same way and to the like extent as they apply to the other provinces of the Dominion, and as if they colony of British Columbia had been one of the provinces original united by the said Act.
The Manitoba Act of union contains a clause the wording of which is slightly different from that, and what the effect of that difference would be, might perhaps require a great deal of consideration. I call attention to it, and it will probably strike our minds as being a little odd. In the Manitoba Act the clause reads: —
2. On, from and after the said day on which the order of the Queen in Council shall take effect as aforesaid, the provisions of the British North America Act, 1867, shall, except those parts thereof which are in terms made, or by reasonable intendment, may be held to be specially applicable to, only to effect one or more, but not the whole of the provinces now composing the Dominion, and except so far as the same may be varied by this Act, be applicable to the province of Manitoba, in the same way, and to the like extent as they apply to the several provinces of Canada, and if the province of Manitoba has been one of the provinces originally united by the said Act.
The only point I wish to make at this juncture is, that as I conceive the application of the bearings of the application of the bearings of the British North America Act on this point, uniform legislation would not be possibly without further legislation, expect as affecting Nova Scotia, New Brunswick and Ontario, and based upon that presumption my few further remarks shall be made.
While no doubt it would be eminently desirable that a uniformity of laws should characterize our legislation upon many of the more important subjects comprised under property and civil rights, and even in the procedure of the courts in these provinces; yet let us look at the extraordinary and peculiar character of the tribunal which is set to create or adopt this legislation. I venture to say that in no constitution upon the face of the earth, is there a legislature brought into force enact such a law. In the first place the parliament of Canada must select one or more of the subjects upon which it deems a uniformity of legislation…
eminently desirable. In the second place, after having in its own opinion adopted such a law as would be desirable to affect operations in the territory comprising those three provinces, the promotor of this legislation — the government or the private individual — must proceed to deal with three separate legislative bodies and induce them to accept the view of the desirability of the legislation as it has been accepted by the Dominion parliament. The legislatures could not be deprived of the fullest and amplest right of discussion, and one can easily see that the slightest variation upon any detail or technicality of the proposed law would be sufficient to destroy it. However, after the legislation has been adopted by the legislatures of the provinces — and I assume it must be adopted by all of the three legislatures to be an effective — then the power of amendment or change is completely taken away from the local legislature and vested in the Dominion parliament. Thus, the constitution of the country as regards that special feature of property and civil rights, or procedure in the courts becomes henceforth one of the fundamental items of jurisdiction in the parliament of the Dominion of Canada. It in fact creates a complete change in the constitution. The only scheme of legislation at all similar to it is that in the neighbouring republic, where any amendment of the constitution of the United States must be first passed by congress and subsequently adopted by certain proportion of the various state legislatures. Now, Sir, I need not call attention to the anomaly, and to the difficulty of obtaining legislation under these circumstances. If this Federal parliament were vested with power of legislation without conference with any other independent or sovereign powers, the difficulties in the way would still be very great. Many illustrations of this are in the minds of hon. Members. Let us take the subject of bankruptcy; a subject with reference to which in its general scope and aspect, nine men out of ten are convinced there ought to be some kind of legislation by the Dominion parliament, and that it would be eminently advisable that either complete bankruptcy legislation as respects the status of the bankrupt or as affects the distribution of the property of the bankrupt, would be highly desirable in the interests of the trade and commerce of the Dominion. That is so much the case that several of the provinces, notably, Nova Scotia and Ontario, have adopted legislation dealing with the assets and the distribution of the affects of the insolvent. Yet, Sir, we know of the cold reception, the almost impossible reception which any proposal for that sort of legislation has received in this parliament. I simply point out these, and circumstances of a similar character to show the vast difficulties which would attend any attempt at legislating along the lines sketched by clause 94 and the succeeding cause.
It is well known that in order to carry any important phase of legislation through this parliament, or in fact through any parliament, there must be very strong pressure brought from some quarter upon the legislature. Where would the necessary pressure be obtained to operate simultaneously upon this parliament and upon the local parliaments to systematically enact, and to follow up these enactments in connection with such a variety of subjects. The local legislatures are peculiarly adapted to attend to these matters on account of the small number of subjects under their jurisdiction; on account of the small number of members dealing with these questions, and on account of their more intimate knowledge of the local circumstances. Of course, I do not suppose that even. My hon. Friend (Mr. Russell) would go so far as to advocate that laws relating to the devolution of intestate estates; and that the laws relating to the distribution of real estate should be dealt with by the Federal parliament, because these are peculiarly local questions. The habits and customs and feelings of a people who have been accustomed to certain modes of dealing with real estate, have grown up in different ways, and they become, so to speak, an ingrained portion of the characteristics of the people. It would be almost impossible for this parliament to deal with matters of that kind. I do admit that upon several questions to which my hon. friend (Mr. Russell) has referred it might be possible for this parliament to enact wise and satisfactory legislation. Still another difficulty presents itself to our minds — not an absolutely irremovable difficulty, but one which it is necessary for us to face honestly. It is this. In dealing with so many legislative bodies, there must necessarily be conferences between them. There must grow up out of any elaborate system calculated to carry out clauses 94 and 97, a conference between the Dominion parliament and the different provincial legislatures through the various governments; or there must be appointed a commission by the governments of the different provinces and by this government, in order that this parliament could deal properly with any preliminary legislation.
I only indicate a few of the difficulties — not to imply that they are insuperable, but to show with what caution and prudence we must approach this subject. Certainly, Sir, it is a most inviting one. Legislation in regard to property and civil rights reaches out in so many directions and touches so many interests that if this parliament is to assume the duty of legislation upon those subjects, we must expect an enormous increase of the business of this parliament. There must be some branch of the government, probably the Department of Justice, specially charged with the duty of following up and studying the various questions which many be presented to parliament for consideration with any reasonable hope of their being
carried to a successful issue. There is, however, one way, which I trust some hon. members may within the next few years take, to bring this question to an issue. It is not necessary that any law, in order to take advantage of section 94, should be introduced by the government. No one in this House is better fitted than my hon. friend from Hants (Mr. Russell) himself to prepare a Bill on one of the numerous and important subjects which he has referred to. With his experience, his ability, his knowledge, as a student of practical law, and his enthusiasm, I believe no hon. gentleman could present a measure dealing with some aspect of trade and commerce, or property or civil rights, with better prospects of its successful passage through this legislature, than my hon. friend himself; and I would like to see the experiment tried of sending such a measure to some of the local legislatures for their ratification. But we must bring our minds to this conclusion, that once having taken any of these subjects out of the control of the local legislatures, this parliament will be charged with the responsibility of legislation on that subject for all future time. The difficulty of this, as I said before, is manifest, and is very great.
The terms of the hon. gentleman’s resolution are that the time has arrived when steps should be taken to carry out this provision of the British North America Act; and if he has not proved, that the time has arrived to pass legislation of that kind, he has abundantly proved that the time has arrived when fuller attention should be given to the powers of this parliament in that respect and to the importance of some of these questions to the general welfare of the country. The attention which has been called to this subject by my hon. friend may induce some of our enthusiastic legislators to take up some of the questions to which he has alluded, and present to this parliament Bills dealing with those questions in the hope that after they pass this parliament they may be ratified by the local legislatures and become part of the laws of the Dominion, and effect to that extent a change in the constitution of the country. I have great pleasure in seconding the resolution.
Hon. JOHN HAGGART (South Lanark). Mr. Speaker, I desire to say a few words on the important subject which the hon. member for Hants (Mr. Russell) has brought before the House. It is a subject which to me has more interest than any other that has been introduced this session. The hon. gentleman suggests that something should be done, under clauses 94 and 97 of the British North America Act, to further the views of the men who drew up that Act, and who were the founders of confederation. First of all, we have to consider, as the hon. gentleman did, what were the opinions of those gentlemen when they framed that Act. He has entered into that question
pretty fully, quoting from resolutions: and protocols adopted at Charlottetown and elsewhere. As to the opinion of my old leader, I think the hon. gentleman has stated it fairly correctly. He was in favour of a legislative union of all the provinces. That. fact meets the view in the British North America Act. He thought that by the decisions of a court to be formed, the Supreme Court, confirmed by the Privy Council, larger powers would be given to the Federal government than appeared in the British North America Act; and clause 94 was incorporated in the Act for the purpose of assimilating the laws of the different English speaking portions of the country. The hon. gentleman who has seconded the resolution (Mr. Flint) showed a difficulty. He said that this proposal to assimilate the laws only applied to ‘ Nova Scotia, New Brunswick, Prince Edward Island and Ontario. That is true; but that is a very slight difficulty and could easily be got over by an amendment to the British North America Act. Now, what is the object of every English-speaking person in this country? It is to have as nearly as possible a legislative union of the English-speaking portions of the country. We do not wish to interfere with the laws of Quebec; but we hope to show, by an assimilation of the laws and a legislative union of the rest of the Dominion, that it would be of advantage, even to Quebec, to be included. As the introducer and the seconder of the resolution stated, there is no intention on the part of the rest of the Dominion to interfere with the right of local self-government in regard to property and civil rights which that province at present possesses. Now, what is the best way to accomplish the object in view? I know the idea has occurred to other members of this House. The first thing that ought to be done—and if I were a young man belonging to the maritime provinces, it would be the primary purpose of my politics—is to bring about a union of Nova Scotia, New Brunswick and Prince Edward Island. That is the first thing to be done in order to have common laws for the English-speaking portion of the Dominion. It is absurd for these three provinces to have three separate legislatures and three separate systems of local government. If they were united, a great many of the difficulties suggested by the seconder of the resolution would disappear. In any conference between the different provinces, three of them would then be united into one.
I know that it was the opinion of my former leader, the late Sir John Macdonald—I do not know whether he ever stated it in public or not—that the ultimate result of confederation would be the accomplishment of that design. That would give the three disunited provinces a power in the Dominion which they had not before, and eventually bring about legislative union. But although we may entertain the hope of
reaching that goal of legislative union in the future, at present we have to do the best we can under the British North America Act ; and until there is a far more serious agitation in the country than now exists, there is no probability of any change in the direction I suggest. I merely wish to explain what, in my opinion, was the view of the founders of confederation when they passed the British North America Act. 1 have not any doubt that, so far as the English portion of them was concerned, their ‘object was a legislative union of the different provinces. Such a union would, I believe, be the best thing for the Dominion. I believe it to be the goal which we should all desire to reach. But at present there is no agitation in the country for any change, and we may look upon the idea as utopian– as a subject for academic discussion rather than any immediate practical solution.
I listened with pleasure to the remarks of my hon. friend from Hants (Mr. Russell) in introducing his resolution. He has given us a striking picture of the difficulties under the present system and of the necessity of assimilating the laws of the different provinces. There are hundreds of provincial laws which might be assimilated by this federal parliament, without any objection on the part of the provincial authorities, and the assimilation of which the different provinces would have no hesitation in adopting. Among all members of our English speaking population, there is a strong desire for an assimilation of the various laws in the different provinces affecting civil rights and property, and which are in a different class altogether from municipal laws that affect only particular localities. I do not think that any insuperable difficulty lies in the way, but still nothing is done. As my hon. friend from Hants (Mr. Russell) has said, it was the general hope and expectation that as soon as our first parliament met, a step would have been taken in that direction, but instead we have followed the policy of drift until we have reached the present stage, when that confusion exists among these various laws which the hon. member has so well described.
What effect this discussion may have I do not know, but the first thing to be accomplished is an assimilation of the laws in the maritime provinces. If that were effected, you would have virtually legislative union, to all intents and purposes, between the maritime provinces, and then legislative union between them and the province of Ontario would be easily accomplished. That would be greatly in the Interests of the country and would be a step towards the end which the man, who framed primarily the British North America Act, had in view, namely, the legislative union of this Dominion. He thought that would have been gradually brought about, even under the present British North America Act. He thought that the decisions of our courts
licked into shape by the Judicial Committee of the Privy Council, would have had the effect of giving us legislative union, but unfortunately, although our Supreme Court understood the opinion and wishes, not only of the framers of the British North America Act, but of the community generally, the Privy Council of England had a different opinion. Home Rule was then in the air, and instead of giving us decisions tending to legislative union, we had decisions affirming to the utmost provincial rights.
There is another reason why jurisdiction over the interpretation of our own laws should be final in this Dominion. Our own courts understand the wishes and hopes of the Dominion, and if the final jurisdiction over constitutional questions lay with these courts our jurisprudence would be so gradually licked into shape that the process of assimilation would be gradually and naturally accomplished, and the aspirations of the fathers of confederation become realized. The hon. member for Hants (Mr. Russell) has taken the place in this House formerly held by his old opponent, Mr.Weldon. Gradually gliding from the constitutional question to the question whether a codification of all the laws was better than leaving the laws as they are and. construing them by the decisions of the different courts—whether it was better to have the laws codified or let them be licked into shape by the decision of the judges—he gave us one of those lectures with which no doubt he is wont to instruct his students. He pointed out the advantages of the one system and the advantages of the other, just as Mr. Weldon used to do when treating this House to lectures, previously delivered at Dalhousie college, and which, no doubt were very instructive. But after the dissertation of my hon. friend from Hants on the subject, whether a codification of the laws or laws licked into shape by the decisions of the courts is the better way, I am still in doubt. However, the House is to be congratulated on the introduction of the subject by my hon. friend. It is the most interesting one which has come before the House this session, and I am sorry I have not given it more study so that I might be able to do it justice. I merely listened to the remarks of my hon. friend, and have given expression to the few of the suggestions which occurred to me while he was speaking.
Mr. R. L. BORDEN (Halifax). I have not very much to add to what has been said with regard to this subject this afternoon, except to say that the movement seems to me one, which, in order to be successful, must emanate from the provinces themselves. The parliament of Canada has the right, under section 94, to pass laws relating to property and civil rights, for the purpose of obtaining uniformity with regard to this subject in the three provinces that have been named. But, as has been pointed out by previous
speakers, these laws cannot come into force until they have been passed by the legislatures of the several provinces. It seems to me it would be idle for this parliament to undertake a work of that kind until the provinces had got together and ascertained whether there was any basis upon which they could agree on any subject coming within the definition of property and civil rights. And until that is done, any work that this House might perform in that direction would not be of much account. I do not wish to deny the ability that my hon. friend from Hants (Mr. Russell) and my bon, friend from Yarmouth (Mr. Flint) have shown in presenting this subject to the House and to the country at this time. But I would like to suggest that not only the Supreme Court of Canada, but the Privy Council as well have had a great deal of difficulty in the past in exactly defining what is intended by the expression property and civil rights in the British North America Act, and we might have difficulty in framing legislation which would come within the 94th section. We have had various opinions and speculations in the Privy Council and the Supreme Court as to whether this or that subject came within the description of property and civil rights, or of some other subject as to which the provincial legislatures have jurisdiction under the British North America Act.
As far as the question of legislative union of the maritime provinces is concerned, I should say to my hon. friend from Lanark (Hon. Mr. Haggart) that that is a subject which, from time to time during the last thirty years, has engaged public attention in the maritime provinces. At times, there has been a very strong feeling in the province of Nova Scotia, and, I believe, in some other provinces, in favour of that union. I believe that, on some occasions there have even been conferences between the public men of the different provinces looking to the union of that kind. At the present time, however, I think there is no agitation in any of the provinces for that purpose, and the accomplishment of maritime union seems to be as far from realization as ever. There is another suggestion which my hon. friend from Hants made, and it is an important suggestion. He says that if what he suggests were accomplished, it might lead to the enactment in this country of measures which have been placed in the form of a code in the mother country, and might, in that way, simplify the Jaw of the provinces which would be made subject to such an Act. I do not think that the provinces really need a measure of that kind for the purpose of enabling them to adopt British legislation—and I do not think that my hon. friend intends that. But I would like to make the suggestion to him that the very aim he has in view, might, to’ some extent, be furthered by the fact that, in many of the provinces of Canada at this time, measures of that kind
Passed in England are being enacted by the legislatures of the several provinces with such alterations as the circumstances of each province demand. For example, while listening to my hon. friend, I looked over the statutes of my own province, and I see that we have enacted in Nova Scotia many measures which have been enacted in the form of a code in England during the last ten, fifteen or twenty years. We have the Arbitration Act, the Married Woman’s Property Act—
Mr. RUSSELL. Do you consider that a model?
Mr. BORDEN (Halifax). I think our own is the same as the English one.
Mr. RUSSELL. Perhaps I may be allowed to mention that I pointed out the difficulty in the way of such a course. Each province would think it was able to do a little better than the British parliament.
Mr. BORDEN (Halifax). I understand that there is that difficulty. We have passed also an Act relating to conveyances by married women, a Joint Stock Company’s Act, and an Act relating to factors and agents, all based on English measures, I think. Then, there is the Judicature Act and rules which are in force in our province. These are practically the same as the English, and they have been enacted, practically in the same form in Ontario, British Columbia and Manitoba, as I understand. There are also various other measures which have been taken from recent English legislation. Now, the fact that these measures have been passed in my own province, and some, I believe, in other provinces, may lead to a certain uniformity of the statute law in the different provinces, which, will have the same practical effect in some measure as the legislative union which my hon. friend has so ably advocated this afternoon. In this connection, Mr. Speaker, I might say that any person who is interested in the question of codification, either in this country or the mother country can gain a great deal of information from the recent work of Sir Courtenay Ilbert, which describes the difficulties that have accompanied any progress in regard to this matter in the mother country. In mentioning this work, I might say, as a very practical matter, that the attention of my hon. friend the Minister of Justice might very well be directed towards a better and more perfect system of drafting statutes in this country. It is supposed by a great many people that any gentleman who is well versed in the laws of this country, and who is engaged in practising in the courts, is, by the very nature of his experience, capable of properly drafting a statute. We who have investigated the subject know that that is a very great fallacy indeed. A lawyer, even a lawyer of great eminence, is often a very poor person to whom to entrust the drafting of a statute. That work requires one who
is not only familiar with the laws of the country but who, by training, experience and the bent of his intellect is specially fitted for work of that kind. Without desiring to cast the slightest reflection upon the condition of affairs under the present administration, without seeking to make it appear that the work done under this administration is different from that under any former administration, I venture to say that the drafting of the statutes in Canada for the past thirty years has not been at all up to the mark. I believe that this matter might well engage the attention of the government, and particularly the attention of the Minister of Justice. I think also that, as a practical matter for this parliament and this government, the attention of the government and especially of the Department of Justice might well be turned to the framing of general laws, more particularly with regard to companies. I have in mind especially legislation with regard to railway companies. A great deal of the time of this House both in committee and in the House itself is now spent in dealing with matters that might well be governed by general provisions. With such general provisions enacted, the time of parliament could be more profitably employed in dealing with more important matters. Now, just one further remark I have to make with regard to the codification which has been spoken of by my hon. friend from Hants. I appreciate everything that the hon. gentleman has said with regard to the advantages of having codification. But I must point out to him that, under the English system, no matter how clear and definite a code may be made, it must follow from the very nature of our judicial system that that code will, from, time to time, be overgrown. We cannot remove all the difficulties that will meet us by simply framing a code. The constitution of this country, the British North America Act, is in the form of a code, yet I venture to say that no lawyer in the House will disagree with me when I state that more than the half of the British North America Act, so far as any provisions which require construction at the present time are concerned, is in the shape of the decisions of the court, and not in the British North America Act itself. We may make codes in this country as long as we like, but we cannot get rid of the difficulty that these codes will become overgrown with legal decisions. Therefore, the making of a code once is not enough; the code when made must be revised from time to time; and the decisions passed upon it will require to be embodied in the new Act. If we wish to bring about the state of things that my hon. friend from Hants so much desires to see. I am in sympathy with the motive which he had in view in addressing the House to-day; but at the same time I venture to think that any action which will be productive of de-
finite results must come from the provinces themselves, and that the only effect of my learned friend’s motion to-day will be to arouse the attention of the different provinces in pointing out to them the good results which might follow if a measure such as proposed were eventually passed by this parliament and by the legislatures of the different provinces.
The MINISTER OF JUSTICE (Hon. Charles Fitzpatrick). With what has fallen from the lips of the leader of the opposition with respect to drafting, I agree entirely. I think it is an absolute necessity that we should endeavor to have better drafting in connection with our statutes. I firmly believe in the statement which I think was made by Lord Chief Justice Fitzjames Stephens, at the time he prepared the Evidence Act in England—that it is as impossible for a committee of men to draft a law as it is impossible for a committee of artists to paint a picture. There must be unity so far as possible, and when our statutes go through committees it is important that they should pass into the hands of a competent draftsman so as to be put in proper shape before finally becoming law.
With what has been said on the subject of codes, I cannot of course be expected to agree. I myself come from the land of codes, from the province of Quebec, where we have a civil code, and where we have a code of procedure; and I believe myself in the words of the quotation that Smith adopted in relation to his volume of leading cases. Menus est petere fontes quam sectare rivulos.’ Now, we must bear in mind that all the laws which have ever survived in this world are those that took the form of codes. To-day the Roman empire has passed away, but the Institutes of Justinian are a living force in all civilized countries. The name of Napoleon is growing more and more to be a tradition, but the Napoleonic Code is a necessity in all civilized countries.
Mr. BORDEN (Halifax). My hon. friend should not understand that I was opposed to codification. I was only pointing out the result of the codification of statutes in England and in Nova Scotia, with which I am more particularly familiar, respecting a body of judicial decisions.
The MINISTER OF JUSTICE. Of course, notwithstanding that we in Quebec have our code. That code is construed by the courts, and the construction put upon articles of the code by the courts ought naturally to have great force with us. They have not force of law, but they certainly have force of reason. Now, let us come to the motion my hon. friend has proposed. My hon. friend from Yarmouth (Mr. Flint) said that this motion is not one of very great importance. I am disposed to think myself that the subject is one rather of academical importance than of real practical
importance. But my learned friend asks us by his motion to declare that the time has arrived when we should have uniformity of legislation in New Brunswick, Nova Scotia and Ontario. Now, I think this motion is not of very great importance because, as pointed out by the leader of the opposition, section 94 of the British North America Act provides that before legislations which would be passed here could become operative as a law, it would be necessary for us to have that legislation approved by the local legislatures. Therefore, I think that the practical way to proceed in this matter would be to ask the local legislatures how soon they are going to be disposed to commit suicide, because the effect of this legislation would be to deprive them of power to legislate with respect to those subjects which warrants their continued existence. If you take from out of the jurisdiction of the local legislatures the laws affecting property and civil rights, then you have taken from them all those subjects which make their continued existence justifiable.
Mr. MACLEAN. So much the better.
The MINISTER OF JUSTICE. I am glad to hear my hon. friend say so much the better, because he evidently agrees with the hon. member for Lanark (Mr. Haggart). The hon. member for Lanark says that the intention of the fathers of confederation was that we should have, not a federal but a legislative union. Now, if lie will pardon me for saying so, I think he is entirely mis-taken in making that statement. Undoubtedly the intention of Sir John A. Macdonald and of those who followed him at that time was to have legislative union. But if he will read the speech made by George Brown, which he will find reported in the debates on confederation, if he will read the speech made by D’Arcy McGee—and I claim that no man took a greater part nor contributed in larger measure to bring about confederation than D’Arcy McGee—if my hon. friend will read the speeches made by George Brown and D’Arcy McGee, he will find that they both declared at that time—and they were not French Canadians, Brown was not from the province of Quebec—that they were in favour of a Federal union. It is, however, well for us to know that Sir John A. Macdonald desired to have a legislative union; and it is also well for us to note the admissions that fell from the hon. member for Lanark, to the effect that, having failed to get the principle of legislative union consecrated by the British North America Act, Sir John still fondly hoped that he might rely upon the Supreme Court, and upon the Privy Council, to defeat the intentions of those who brought about con-federation, and to bring about a legislative union by means of judicial construction, It is well we should know that, and while I admit with the hon. member for Yarmouth that the debate is in itself not very important
the admissions which we have from the trusted lieutenant of Sir John A. Macdonald are exceedingly important.
Speaking now, not as a representative from the province of Quebec, but merely as a Liberal, I say that I stand for local self-government. My hon. friend from Hants (Mr. Russell) says we all stand for local self-government. He stands for local self-government, and he preaches legislative union; because after all, as I said a moment ago, if you take away from the provinces the power to deal with these questions of property and civil rights, you are taking away from them all those things which have been assigned to them as subjects of legislation and without which they would no longer have any reason to exist. Therefore, I say as a Liberal that I stand for local self-government, and I will tell you why. I remember reading not many years ago a speech of Mr. Gladstone in which he said, speaking to a meeting of Liberals, that we should cherish municipal, local and even parochial liberties, not only as nursery grounds for the production here and there of able men, but for the general training of public virtue and independent spirit. Those should be the views and the desire of the Liberal party. We do not want centralization, because centralization leads to paternalism in government. We want decentralization, because we want the development of the individual. I say more, we want our laws made by those men who are Immediately under the control of public opinion, of the public opinion of the localities to be affected by those laws. In a country of this sort, where we have got a variety of races, with such a variety of interests, with such a variety of climatic conditions, laws affecting property and civil rights which, in the maritime provinces or in Ontario, would be acceptable, could not be made applicable in the altered conditions which exist in British Columbia and Manitoba. So I say it is in the interests of the people themselves that they should have local legislatures working under their immediate control, in order that the members of those legislatures may be in closer touch with public opinion and more amenable to that public opinion.
Now I do not know that it is necessary for me to have made this digression. But perhaps I ought to mention that this is not a new movement. When the hon. member for Lanark said that it was the intention of Sir John Macdonald to have a legislative union, and also that he hoped that the courts would help him to defeat the object of the fathers of confederation when they gave their assent to a federal union, he omitted to tell us that before the Supreme Court was established he had attempted that which the hon. member for Hants says we ought to do to-day. As far back as 1868, Col. Gray, then a member of this House, representing the city of St. John,
was requested by Sir John Macdonald to make a report on the condition of the existing laws in Nova Scotia, New Brunswick and Ontario, In order to see how far it would be possible to bring about that which my hon. friend says is so desirable—that is to say, to provide uniformity in legislation. I remember reading in a book published by Col. Gray, a great many of the arguments—I do not say they were in the same form, and I do not suggest at all that they came from the same source as that from which my hon. friend drew his arguments—but they were on a line with a great many of the contentions we heard to-day. They were arguments to show the advantages of uniformity of legislation. But, when the question came up in this House, and was discussed here, Dorion, Blake, Mills, and other leading men of the day were found opposing the proposed motion, and as a result the whole matter was allowed to drop. The debates of that day do not contain any reference to what took place in the House. There was then no ‘ Hansard,’ and I have had but a few moments to look through what is known as the scrap book Hansard ‘ of the time and I have found no reference to the debate. But, the matter may be found dis-cussed editorially in the newspapers of the day. Now, I am not speaking now as coining from the province of Quebec, but I say it is Impossible for a Liberal to favour action of this sort, because the necessary tendency is to break down those barriers which are essential to the maintenance of a federal union. At the present time there can be no reason why we should move in that direction. We have had a good many years experience of the British North America Act, which would enable us to point out any inconveniences that might result from the operation of that Act, but, to-day we have had very few instances of such inconveniences pointed out to us. But, I would like to draw my hon. friend’s attention to this, that after the experience we have had, and after the experience that they have had in the United States, we find the Australian Commonwealth not only asking for legislation on the lines of our Federation Act, but going farther in the direction of decentralization, in the direction of giving power to the provinces, or to the states as they are called. You will find that under the Act adopted by the Australian Commonwealth, the residuary power is in the states. Let me say in conclusion, that I want to put it again to the House that I do not speak as a member coming from the province of Quebec. But of course, I cannot help feeling that this action would be a menace in so far as Quebec is concerned. We are happy in the possession and enjoyment of privileges which we cherish, and I say here and now that in so far as the province of Quebec is concerned, we have to realize that those privileges that we enjoy came to us through the British
North America Act, which was enacted by the Imperial legislature; and that the people of that province should bear in mind, as I am sure they do bear in mind, that they must look for the maintenance of these privileges to the Imperial connection, and the more we realize that here, the better it will be for ourselves. So long as we maintain the British connection, so long as we maintain our right to go to His Majesty, to the foot of the Throne, to maintain those privileges, so long will they be respected. I say this Confederation Act is a covenant between the British people and the people of Canada, that the British people respect their covenants, and that any lessening of the tie between us and Great Britain must be detrimental to the province of Quebec, in a greater degree than to any of the other provinces of the Dominion.
The SOLICITOR GENERAL (Hon. H. G. Carroll). Mr. Speaker, I would not have considered it necessary to address the House on the subject now under discussion if it had not been for the remarks of the hon. member for Lanark (Hon. Mr. Haggart) and for the interjection of the hon. member for East York (Mr. Maclean). Those who carried out the Idea of the union of the provinces, thought that a day would come, perhaps, when it would be desirable to make uniform the civil laws of the three provinces, Ontario, Nova Scotia and New Brunswick, which were then coming into the union, and section 94 of the British North America Act was enacted. I need not quote the whole of the clause, but I shall quote the concluding part:
But any Act of the parliament of Canada, making provision for such uniformity, shall not have effect in any province unless it is adopted and enacted as law by the legislature thereof.
I wish to draw attention to the last part of this clause, unless it is adopted and enacted as law by the legislature thereof.’ This shows us what the intention of the fathers of confederation was; it was that the questions relating to property and civil rights were within the domain of the provinces and that it was only with the consent of such provinces that these laws could be changed or modified. This being so, what is the position today? Each one of these three provinces has since its very inception, preserved its civil laws, with the addition of the amendments made thereto by the legislatures. I will ask this question of the hon. member: Is there a real and serious grievance existing now which would necessitate the intervention of the Federal parliament in order to make uniform these laws? In a country like ours where so many important questions occupy the attention of the Federal parliament, the latter would not be justified in interfering unless it was at the formal request of each of the provinces. If the grievances are well founded, how is it that the
voice of the legislatures has not been heard. It strikes me that they would be the first to interfere, and it has not been shown in any way that it was the wish of the provinces to change the actual state of things. It is said that there is no difference between these three provinces. They use the same language, have the same customs and the same aspirations, and as this, to a certain extent, is true, the proposed reform offers fewer obstacles than would result in an attempt to legislate for a class of people who, by their temperament, their customs, their habits, their tendencies and aspirations differ from others; but the question here is to change a system which has been tested by the experience of time and against which there is no serious complaints. If the grievances are well founded, there is a very simple way to apply a remedy. Let the local legislatures undertake themselves the task of making these laws uniform, and let them agree between themselves, in order that the various dispositions of their laws be made uniform. The hon. gentleman has enumerated what subjects could be made uniform, but I submit that these could be remedied by an understanding between the different legislatures. The resolution which the hon. member has moved, has a tint of centralization, which may have serious’ consequences. It is asked that the parliament of Canada should intervene to make laws uniform in these various provinces; but, then it will be necessary to leave a gap between Ontario and New Brunswick, and agitators will ask the question, why this break in the continuity from the Ottawa river to the limits of the lower provinces, and then men not so well advised as the hon. member is, will ask why not uniformity in the laws of the whole Dominion. But the hon. gentleman will answer that there is our constitutional charter. Well it is better not to lay temptations in the way of those who are susceptible of yielding to temptation.
Though I entertain these views, I would not oppose the motion of the hon. gentleman (Mr. Russell) if it were proven that it was the wish of these three provinces that their laws be made uniform, because section 94 forms part of our constitution and that constitution we have accepted and are ready to abide by it. This is not the first time that this question has been agitated. During the Quebec Conference, as the hon. member (Hon. Mr. Haggart) has said, the question was at issue. It was agitated in this parliament during the discussion on confederation. It was agitated in 1871, and as the Minister of Justice has said, parliament voted an appropriation, and the Hon. J. H. Gray was entrusted with the task of making a preliminary report to the then Minister of Justice. What was the conclusion of that report?
Hon: Mr. HAGGART. Does the hon. Solicitor General think that I ever argued that
we could pass a law here which would be effectual, without the consent of the provinces?
The SOLICITOR GENERAL. I am not saying that at all. Here is the conclusion of the report of the Hon. J. H. Gray in 1871:
But there can be no doubt that an excellent practical coda of law, simple in its language, easily understood, expeditious and economical in its administration, could be found by a judicious selection of the best of the laws of each of the provinces, by men who were severally acquainted with them.’
In this preliminary report to the then Minister of Justice, Mr. Gray sets forth the essential differences which exist between the statutory laws of these three provinces._ The hon. gentleman who has moved this resolution has expressed his surprise that since that date no serious effort has been made to bring about uniformity, and he attributes that—not in this House, but in a lecture he delivered before the Dominion Bar Association—he attributes that to what he calls the vis inertiae of our parliamentary system. I would attribute it rather to the fact that no serious inconvenience, no real grievance existed. When I use the word grievance,’ I do not mean the embarrassment which must result to the members of the Bar in the exercise of their profession, but I refer to grievances which result to the provinces themselves. I am confident that those provinces are jealous of their civil laws, and rightly so. They form part of the customs of the people, and as the Minister of Justice has said, if any legislation would give over to this parliament the control of the civil laws in the provinces, then the usefulness of the provinces would be at an end.
There is another consideration. The hon. gentleman (Mr. Russell) has said that section 94 would apply only to the provinces of Ontario, Nova Scotia and New Brunswick. Therefore, if the other provinces did not come under the provisions of section 94, we would have the western provinces, Manitoba and British Columbia—and later on the North-west Territories—and we would have in the east Prince Edward Island and Quebec with their different laws. Therefore, from a geographical point of view, at any rate, the uniformity which the hon. gentleman aims at could not be obtained. There is a still further consideration. Supposing that the parliament of Canada would enact uniform laws for these three provinces and that the provinces would sanction these laws, then the local requirements in each province would require amendments to be made. These amendments may meet the requirements of one province only and not of the other two provinces. What would the parliament of Canada then do, and what would become of the uniformity of civil laws in the three provinces of Ontario, Nova Scotia, and New Brunswick. The hon. gen-
tleman (Mr. Russell) in his able lecture has quoted: ‘ Non erit alia lex Romae alia Athenis,’ &c., &c. From the Roman point of view, I am sure there could be no objection to that, but I would be very much surprised if Athens were satisfied. As the hon. gentleman (Mr. Russell) is a distinguished linguist, I will quote to him in the original what Mr. De Lasteyrie, an able French writer, said of the government and constitution of Rome:
The principle upon which the government of Rome rested, was the destruction of individuals for the benefit of the state ; it was the destruction of the provinces, for the benefit of Rome; it was the destruction of everything for the benefit of the Emperor. Each governetn.mt should be allowed their own share of responsibility and they should assume no more of it than is necessary.
And then, this other quotation which I take from Burke:
There are in nature springs of justice whence are derived and flow like rivulets, all civil laws; and that their waters should take the different hues and flavour of the various soils through which they run is but natural.
These being my views, Mr. Speaker, and not having before me the proof that the provinces desire this change, I think it is well to let well enough alone.
Mr. W. F. MACLEAN (East York). The Minister of Justice when he addressed the House, professed to be a Liberal and he held up Mr. Gladstone—as his colleagues always do—as the great type of a Liberal. But if Mr. Gladstone was anything he was an advocate of the doctrine of British constitutional progress. He believed that the constitution had not come to an end ; he believed that it could develop ; and if there is anything that places the British constitution before every other constitution in the world it is, that it has not become stereotyped, and it does grow and does progress, and under it they have the best laws in the world. Let me say that while I accept the Federal constitution as it exists, I am sorry we have it. I would very much prefer the government of Canada to be a free parliamentary one, as in England, with power to make a uniform law for this country from the Atlantic to the Pacific. The trouble with the Federal constitution of the United States is, that under it they have not got uniform laws, and so there is a strong agitation in the United States for uniformity, even if the constitution has to be revised. I am free to say that I am enough of a liberal and enough of a progressist to be in favour of constitutional revision, and I am sorry to hear hon. gentlemen on the other side say that the constitution of Canada is absolutely perfect and must for ever remain as it is. As was pointed out by the hon. member for Hants (Mr. Russell) there Is even under the constitution as we have it, provision for constitutional progress in
this respect, and if so the motion of the hon. gentleman is a constitutional one, and it does away in no sense with the laws of the provinces. Speaking of the provinces, I have not a moment’s hesitation in saying that the result of provincial government in Canada has been detrimental to the progress of the country. I say that the interpretation of the law that has been given by the English Privy Council in regard to the distribution of rights as between the provinces and the Federal power, has been against the interests of the country as a whole. That I regret. I agree with the hon. member for Lanark (Hon. Mr. Haggart) that some day we will have the whole jurisdiction in this parliament, and in some way we will work it out, and in some way we will increase the Federal power and wipe out gradually the provincial power. I take issue directly with hon. gentlemen who oppose that view. I say that provincial government, and the enlargement of provincial rights, has not been in the interest of this country, and I say that Sir John A. Macdonald was right, and was a most farseeing statesman if he believed in a legislative union and desired it carried out in this country.
We can say that without for one moment being chargeable with trying in any way to destroy the rights of the province of Quebec, I respect whatever rights that province has; but there is in our constitution as we have it to-day provision for constitutional progress and a unification of our laws; and notwithstanding what the Solicitor General says, the initiation of that matter is in this parliament more than in the provincial legislatures. Hon. gentlemen opposite say that they are Liberals. Are they? I have heard their leaders say that there is nothing to reform in this country. There is reform possible under that very British North America Act, as was pointed out by the lion. member for Hants (Mr. Russell) to-day, and his statement has not been contradicted ; and there is need of reform on the lines pointed out by the hon. leader of the opposition. Yet we are told that there is no hope of progress, that the main thing is to uphold local rights. That is the doctrine of the Minister of Justice of Canada. I take issue with him there. The thing which the Conservative party of this country committed itself to was to build up a nation, with a unification of laws, if that was possible, and that this country should in some way try to recover the federal power which has been lost to the provinces in the last few years. Although the Solicitor General quoted the instance of Australia, which has adopted a federal constitution, I say that federal constitutions have not justified themselves in the way the free parliamentary system of Great Britain has justified itself. England today, by reason of her free parliament, can do anything, and can deal with any question, and deal with it immediately in one week. In the United States, under their federal sys-
tern, where they are governed by men who have been in the cemetery over a hundred years, they can do nothing, and they have a multiplicity of laws that are directly against the public interest. The two great questions in the United States are how to secure a uniformity of laws and how to handle the great trusts which have grown up, and which the lack of federal law seems to prevent them dealing with effectually. So that what has been said on the other side of the House to-day in regard to constitutions, is not borne out by the facts. The federal system, as we know, is not perfect, and it is the duty of a parliament to try to be progressive and to try to improve things. There is in our constitution, as we have it, room for progressive legislation on the lines suggested by the hon. member for Hants, and I hope that hon. gentleman will be more than academic, and will bring forward a measure in that direction. If he does, I will give him my support. That, is a much better way of dealing with questions of this kind than discussing them in an academic way. At the same time, I compliment the hon. gentleman on the step he has taken. For one thing, he has raised the question in the public mind, and has shown that constitutional revision is a live question in this country. I am not afraid to say that I am ready to see the constitution of this country revised. It has got to be revised; it is over thirty years of age. The British constitution changes every day. The time has arrived when public attention must be directed to this subject, and when It cannot be dismissed as hon. gentlemen opposite have tried to dismiss it to-day ; and the proof is that an hon. gentleman who is a supporter of the government has brought it up. The question being up, it will not down; and one reason is that the constitution may be strained too much in the province of Quebec. I say that in all friendliness—and per-haps it is being too much strained to-day by a Bill which has been introduced in regard to the Supreme Court.
The MINISTER OF JUSTICE. Which Bill was introduced in 1880 by one of the present judges of the Supreme Court.
Mr. MACLEAN. I am not disputing that; but I say it is an argument for constitutional revision coming from the province of Quebec. Does the Minister of Justice deny that?
The MINISTER OF JUSTICE. Not at all. The Bill is on the lines of what was suggested at the time the Supreme Court Act was introduced.
Mr. MACLEAN. It is a straining of the constitution under the British North America Act. But the question of constitutional revision is in the air, and it must be settled in some way, and cannot be dismissed by saying that we have a stereotyped constitu-
tion. Above all things, men who call them-selves Liberals and say they are living under a British constitutional system entirely ignore the spirit of that constitution when they ignore its progressive character.
Mr. L. P. DENIERS (St. John and Iberville). (Translation.) Mr. Speaker, according to the hon. gentleman (Mr. Maclean), who has just spoken, our constitution, which is hardly thirty years old, is in sore need of being revised. Why, Sir, one would think from what he said that he was just hailing from France, where they talk of nothing else but constitutional revision.
I think that if there is anything which places the British constitution before every other constitution in the world, it is that it progresses very little and in an almost imperceptible way. Clearly. my hon. friend from East York (Mr. Maclean) does not share on that point the ideas of the great English parliamentarians. But it seems he would fain import his ideas from France, a country whose law-makers, when they are not busy with framing a new constitution, which occurs every twenty years, make up for it by agitating every year the question of constitutional revision, so as to keep abreast of the times.
The hon. member from East York (Mr. Maclean) in his comments upon the Bill I have introduced this afternoon, stated that I was aiming at the overthrow of our constitution. The hon. gentleman may rest assured that I have no such ambition, as I am perfectly satisfied with the constitution as it is now. This Bill aims at restricting appeals to federal matters. The constitution provides for the constitution of a Court of Appeal and of lower courts for construing the laws of Canada.
All legal authorities agree that it was open to doubt whether, under our constitution appeals could be heard by the Supreme Court in matters coming under provincial civil law ; and yet, that point was decided in the affirmative by the Supreme Court.
The object of the Bill which I have introduced is not to amend the constitution, but merely to constitute the Supreme Court into an exclusively federal court ; or in other words, as a tribunal which would pronounce judgments on all matters except such as did not come under the civil laws of the provinces. In all cases where the Dominion government or the provincial legislatures, or again, private individuals bringing an action against a province were the interested parties, this court could hear such appeals. Therefore it is not contemplated by this Bill to change the constitution of Canada.
The hon. member for East York has made references which are far from bolstering up his claims. There was a time when people used to sneer at the United States. And no less an authority than the illustrious Joseph de Maistre once said that the United States of America was yet a child in swaddling
clothes, and that it must be allowed to grow and develop, before pronouncing upon the merits of its constitution. But later events have given the lie to Joseph de Maistre, and all the European powers agree that the American Republic is now occupying one of strongest positions in the eyes of the world. Through their federal system of government, and through their own exertions, they have reached one of the proudest positions as a nation, not only in the new world, but in the whole world.
My hon. friend has also scornfully referred to federation. Why, Sir, does the hon. gentleman forget that the Imperial parliament, which is the embodiment of the ideas and feelings of the English people, which is per-haps the most practical and the wisest of all peoples, has just granted to the Australian colonies a federative constitution, and that parliament did so, in the light of the experience of the working of the Canadian constitution ? And yet, the nation they had to deal with was a perfectly homogeneous people. Unless you should pretend that we are to be treated as outlanders in this country of ours, you will agree that it is necessary that our laws should not be interfered with.
But, Sir, England is not the only country in Europe from which we may take an object lesson in this matter. And that lesson, we learn it from a country which successfully competes with the United States and Great Britain herself ; a country, I say, that has taken the lead in literature, in science, in political economy, and that country, Sir, is Germany. Since Germany has evolved into a confederation, she has reached the status of one of the greatest world-powers. From the example of Germany we may gather that the fate of Canada is not so much to be pitied after all, and that there is no reason why we should hasten TO do away with the covenant entered into by our fathers in 1867, by which the French minority has been guaranteed the rights secured under the treaties.
At six o’clock House took recess.
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