Canada, House of Commons Debates, [Uniformity of Laws], 1st Parl, 2nd Sess (17 June 1869)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 1st Parl, 2nd Sess, 1869 at 847-856.
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Hon. Mr. Rose moved a further consideration of resolutions 18, 19 and 39, Dominion offices, Nova Scotia Dominion offices, New Brunswick Commission for making provision for the uniformity of the laws, reported from Committee of Supply.
Items 18 and 19 were agreed to after Mr. Rose had given some explanations as to the employees in the Dominion offices of Nova Scotia and New Brunswick and their salaries.
Item 39 having been moved,
Mr. Mackenzie said he held it to be subversive of the first principles of Parliamentary independence for members of this House to receive wages at the hands of the Government. He did not doubt that the member for St. John (Col. Gray) was elected as a supporter of the Government, but such payments might be made to those who were not elected as supporters of the Government and the worst consequences might ensue. He found that $200 had been paid for some such services to a gentleman who was elected as an opponent of the Government, the member for Guysborough (Hon. Mr. Campbell) and it was not for him to say what influence that might have had on the hon. gentleman’s course. He found that in various periods of the Parliamentary history of England, strong ground had been taken by the best friends of the Constitution against place-holders being allowed to sit in Parliament. In 1692 a resolution was passed unanimously that no
member should, without the consent of the House, take offices of emolument under the Crown, under penalty of expulsion. At another period a resolution was passed declaring that any member accepting office, or the promise of office (hear), should be expelled. The Minister of Justice, a few evenings ago, had zealously defended his right to promise an office to a member who still held his seat. He (Mr. Mackenzie) felt that we were rapidly getting into a dangerous position. One mem- ber had been appointed to an Intercolonial Railway Commissionership; another had been promised an Intercolonial Railway Commissionership; a third had been appointed to revise the laws; a fourth had been appointed on a commission to go to Prince Edward Island on some question connected with the fisheries; and, besides all this, they had mem- bers of the Ontario and Quebec Governments sitting here directly under the influence of the Government. It was not in human nature for members to resist such influences and preserve their independence. The mem- ber for St. John had come here as the representative of a constituency, and had since accepted a paid office. He had never obtained the approval of his constituents to the acceptance of that office, and he must therefore be held to be sitting here without their approval. He moved, in amendment, that the words following be added to the 39th resolutions-“Provided that no portion of such money shall be paid to any member of this House, such payment being in violation of the spirit, if not of the letter, of the Independence of Parliament Act, and calculated, in the opinion of this House, to detract from the independence of its members.” He added, that in the Parliamentary history of Canada there was but one instance, so far as he could remember, of a member of the House receiving a direct money payment for services other than those rendered as a member. In 1859 or 1860, the late Mr. Benjamin, the mem- ber for Hastings, received a sum of $2,000 for services connected with the printing department. That payment was then objected to as an impropriety which could not and ought not to have been allowed.
Sir John A. Macdonald said this question had been fought out last session on the Independence of Parliament Bill. He had shown them, as he maintained now, that there would be a great loss to the public service, if the country were deprived of the services of a member of Parliament in matters of this kind. The honourable member for Lambton had quoted a number of resolutions passed in the English House of Commons from the time of
the Long Parliament down to the Revolution. Those were the times when the people had to be protected against the Crown; but when those times passed away there was no longer a necessity for those futile paper resolutions, framed in the same spirit as that of his honourable friend for Lambton. In England, they were now more and more adopting the principle which had long been adopted in the United States, that because a man had the confidence of the Government, he could not, therefore, enjoy the confidence of the people. Now-a-days the Crown and the people were one, and under this principle the majority should rule. There did not now exist the danger of the Crown exerting an undue influence by having place holders in Parliament. The Crown was not to be prevented from employing men of the best talent, be it legal, engineering, or any other department in their service, because they happened to be Ministers of Parliament. It would be an unworthy disparagement to a Queen’s Counsel to suppose he would sell his vote for occasional employment in that capacity, while salaried officers of the Government ought not to sit in Parliament. There was no good reason why the Government should not occasionally em- ploy on special services members peculiarly qualified for such services. In England of late years the prevailing tendency had been to get rid of the rule which forbade the sitting in Parliament of those who received emoluments from the Crown. The truth was the rule had too long outlived the times when there was a necessity for it. The Crown was not now in conflict with the people, but was a figurehead representing the people. The member for St. John had rendered services of great value in connection with this commission in preparing for the work of assimilation. He had done what otherwise had been the work of seven or eight men. He had asked him to undertake the work because he was peculiarly qualified for it, having been for a number of years engaged in New Brunswick in the work of statutory consolidation. In England, new governmental commissions were appointed every day, and members of Parliament sat on these commissions without vacating their seats. Sometimes they did not get pay, but as a general rule members of the English Parliament do not want pay. They would not take pay. But for a lawyer to be considered so high in his profession as to be put on such a commission, was worth more than any pay. It would be worth £1,000 to him. So the argument as to bribery would stand as good there, even without pay as here. We had to pay our members because we were a poorer
community, and for the same reason we had to pay those who were appointed on commissions. The member for Lambton might, if he chose, move to repeal the Independence of Parliament Act of last session; but while that Act was on the Statute Book, he had no right to move a resolution of this kind, to limit the prerogative of the Crown under that Act.
Mr. Blake believed it was quite competent for the House to pass this resolution, if it expressed the sense of the House. The Minister of Justice had drawn a contrast between times when the Crown was a reality and the present time, when to use his own expression, it was a figurehead; but if it were true that the Crown was not now a reality, we had got the Executive exercising the power of the Crown, and Cabinet Ministers now, in order to retain power, had as much anxiety to control the opinions of members of the House as formerly the Crown had. The question was not whether the power of conferring office on members might not occasionally be used in a way to be of service to the public interest, but whether it was not a power which might be used unwisely and to the prejudice of the independence of this House. He thought there could be no doubt that there would be a great tendency so to use it and that it was therefore a power dangerous to the independence of Parliament, and the liberties of the people. The Minister of Justice had admitted that a salaried officer should not sit here, yet after all was not a salaried officer more independent of the Government than a member holding a temporary commission. As regarded the latter, on his conduct in the House might directly depend the rate of his remuneration and the length to which his commission should extend. If the hon. gentleman’s arguments were worth anything they would admit of a salaried officer sitting in the House just as much as a paid commissioner. He had attempted to show that it was necessary to employ Queen’s Counsel who were members of the House to do the work of the Crown. He (Mr. Blake) denied there was any such necessity. He could say for the profession to which they both belonged, that there were many gentlemen of the long robe outside this House perfectly competent to discharge the most delicate and important duties that could be thrown on them by the Crown on the subject. As regarded the member for St. John, he had no doubt he was well qualified for the duties assigned to him, but there must be many
others outside the walls of Parliament equally competent. It might be true that in England members of Parliament were appointed on Government Commissions, but it was a most important distinction that they were not paid for their services. The Minister of Justice had pointed out that, as a general rule, pecuniary considerations were no object to English Members of Parliament; but we were in an entirely different position here. What was of no consequence in England was of great consequence here, and that was the very reason why we should be especially careful here, that no pecuniary considerations should be held out by the Executive to members of Parliament.
Sir George E. Cartier followed, and argued at some length against the principles laid down by the gentlemen on the opposite side. He maintained that the selection of the hon. member for St. John, for doing the great work of the assimilation of the laws, was as good a one as could be made. He contended that the appointment was perfectly legal and constitutional. The hon. member was simply called upon to perform certain work connected with legislation—it was simply the enlargement of the powers given to him under the constitution as a member of Parliament. The arguments used by the hon. member for West Durham could have been more appropriately used when the law on the statute book was under the consideration of the House during the last session. As respects the practice in question, he showed that it was approved by such eminent authorities as Baldwin, Lafontaine and William Blake, in whose school he had himself been brought up. If the present law was so corrupt, then the hon. gentlemen opposite should have long before this have moved to have it repealed or amended so as to meet such cases as they objected to as ‘dangerous to the independence of Parliament’. He believed, however, that those gentlemen were only afraid of shadows of their own imagination.
Hon. Mr. Wood said that the fact was that Messrs. Baldwin and Lafontaine allowed a practice which was afterwards by statute declared to be contrary to the independence of parliament might satisfy the Minister of Militia, but it would not satisfy the Country. He went on to argue at length that the whole spirit of the parliamentary constitution was against placeholders sitting in Parliament, whether their offices or emoluments were
permanent or temporary. He denied that facts had been correctly stated by the Minister of Justice, when he claimed that of late years, the rule had been relaxed. On the contrary the number of office-holders in Parliament had been constantly decreasing, and the power of the Executive to appoint members to office had been more and more limited. He quoted Acts so recent as 1866 and 1868 to show how careful was the British Parliament that its members should not be subjected to pecuniary influence on the part of the Government of the day. In all cases where such an office as this was conferred on a member of the English House of Commons he vacated his seat in order to give his constituents an opportunity of pronouncing on his acceptance of office. So sensitive was public opinion on this point that the rule was for a member to cease to sit in Parliament as soon as he got the promise of office. He read from Todd’s recent work on Parliamentary Government the statement that statutes appointing commissions ordinarily contained a clause disqualifying the Commissioners from sitting in Parliament till re-elected; “although,” said the writer, “a direct prohibition was unnecessary, because all new offices of profit disqualified the incumbents thereof, under the statute.” But this disqualification did not apply to unpaid Commissioners.
Mr. Harrison assailed the member for Brant for inconsistency, and charged him with having voted in a different sense from what he now contended for, on the Independence of Parliament Act of last session. He said, more- over, that the hon. gentleman was himself a standing argument against the position he had maintained tonight. As a member of the Ontario Government, he was a paid officeholder under the Crown, and ought not, according to his own argument, to sit here.
Hon. Mr. Wood said he had been expressly indemnified by statute.
Mr. Morris said, if the passage from Todd, cited by the Hon. Mr. Wood, had been quoted at length, it would have shown that temporary Commissions like this did not disqualify, even though the Commissioner was remunerated for his services.
Hon. Mr. Dorion contended that the reasons of public policy which applied to the case of an officer receiving an annual salary applied with equal force to a man receiving a per
diem allowance under a commission extending over two, three or four years. He held it to be a sound principle enacted in 1857 that no paid officer of the Government, whether permanent or not, should come here and sit and vote as a member of this House. Hon. Mr. Howe thought it was ridiculous to talk of the Independence of the 180 members of that House, being tampered with by the expenditure of £550. In Nova Scotia, the laws had been codified by gentlemen of high legal standing, who were members of the Legislature, and yet were paid, as they should have been, for their laborious and important work. He was not a bit afraid of the Independence of Parliament being destroyed. The Government had not the power to effect that, and God forbid they ever should have.
The House divided on Mr. Mackenzie’s amendment, which was lost. Yeas, 49; Nays, 79.
Mr. Mills believed that the result of making the law uniform, as here proposed, would be to destroy the power of the Local Legislatures. The hon. gentleman argued this question at length, contending that if it was a question whether Federal or Local Legislatures should be destroyed, the country would suffer far less by the destruction of the Federal power. Besides, before forcing this vote on the House, the Government ought to show that the several Local Legislatures concurred in the proposed legislation. In conclusion, he moved in amendment—“That the said item be not concurred in; but that it be resolved that it is inexpedient to make any provision which would if it becomes law, transfer the powers of legislation upon the subjects of property and civil rights from the Provincial Legislatures where they are at present vested in the Parliament of Canada, as any such provision would in the opinion of this House tend to destroy the present system of Federal Government.”
Mr. Young seconded the amendment, and in doing so contended that there was more danger than under the proposed system, if property and civil rights would be taken out of the hands of the Local Legislatures altogether.
Sir George E. Cartier said that the hon. gentleman need not be apprehensive of the result of this commission for by the 94th clause of the Union Act it was inserted that the laws of several Provinces should be made in uniformity with an Act of the Parliament of Canada, subject to the proviso, that before such Act would have the effect of law it must
be accepted by the Legislature of each Province.
Mr. Blake replied to the Minister of Militia, and contended that it was eminently proper that, from the very outset, any action by the Dominion Government, looking in the direction of taking away from the Local Legislatures their control over property and civil rights, should be carefully discussed. He considered sound policy was against this Parliament assuming control over these laws; first because it would be against the proper working of the Federal system, and second because it would give this Parliament control over the laws of Ontario, New Brunswick, and Nova Scotia, with which one-third of its members—those from Quebec—had no concern. Such a policy, he believed, was wrong; and even from the point of view of those who thought otherwise, it must be regarded as premature, looking to the position of Nova Scotia and to the coming in of Newfoundland. Moreover, without the concurrence of the Local Legislatures, the money spent on this object would be thrown away; and that concurrence he did not believe would be given. As regarded, at least, his own Province, his voice would be raised against such concurrence.
Sir John A. Macdonald said it was possible that Ontario, Nova Scotia and New Brunswick might never have precisely the same laws, but it was, at least, desirable that they should have an opportunity of obtaining uniformity of their laws. There had been a gradual divergence of the laws in those Provinces, and it was of importance to their well-being that that divergence should be done away with. The most likely way to accomplish that was to have a Commission of experts familiar with the laws of the various Provinces, to report a body of laws which the Provinces might either accept or reject. The member for Durham said this movement was premature, because Newfoundland was not yet in the Union. That Province had been very careful to maintain its Civil Law, the law of England. The whole of its own laws in that department might be contained in a very thin volume. There would be little difficulty, therefore, as regarded that Province. No one Province could afford to pay the expense of such a commission as this, and if it did a Provincial commission would look at the consolidation of the law from a Provincial point of view. He was surprised that the member for Durham should oppose this or should not desire a uniform system of laws over all the Provinces. It was of importance that the members of the bar of one Province should be in a position to go to the bar of an-
other Province, and that the Provincial Judges should not be restricted to holding positions on the bench of their own Province. He considered that the 94th clause of the Union Act threw on this Government the responsibility of making some attempt in the direction of securing uniformity of the laws.
Hon. Mr. Wood thought the work should not have been undertaken until some move was made by the Provincial Legislatures. In the United States, the different States have by common consent adopted substantially the same body of laws as to property and civil rights, also the same practice. If uniformity of the laws were to be secured between the Provinces, it would be by a gradual movement in that direction on the part of the Provinces. He had no faith in its being accomplished by the hot-house process of committing the work to one Commissioner, who, from the fact of his residing in Ottawa and receiving his pay from the Dominion Government was supposed to be divested of all provincialism. (Laughter).
Mr. Ferguson contended that the Government were only discharging their duty in now bringing in a measure for the assimilation of the laws. The objection against the procedure of the Government was on the part of the last speaker, an objection against the man selected to do the work, and that objection was futile. The objection of the member for Bothwell, and those who coincided with him, simply amounted to this, that the Local Legislatures were not able to take care of themselves, and that was an argument which he (Mr. Ferguson) could not endorse. He would support the vote for the assimilation of the laws and leave it to the Local Government to say what they should do in the matter.
The House then divided on Mr. Mills’ amendment, which was lost. Yeas—33. Nays—81.
Hon. Mr. Holton said that the effect of the main motion now before the House, was to pledge hon. members to the initiation of a policy of Legislative Union, as contra-distinguished to Federal Union, and he hoped the Minister of Militia would instruct such of his friends as were opposed to a Legislative Union to oppose this vote.
Hon. Mr. Wood rose to a matter of personal explanations. The member for West Toronto (Mr. Harrison) had been disingenuous in referring to a vote he (Mr. Wood) had given last session, as if it were inconsistent with his support of Mr. Mackenzie’s amendment
to-night. He proceeded to read Mr. Blake’s amendment, against which he voted last session, which denied the Sheriffs, Registrars and other persons holding office under the Crown, in the Provinces, as well as officeholders in the Dominion, the right to sit in this Parliament. That was a proposition entirely different from that which was before the House to-night. (Hear.)
The motion for concurrence on item 39, Commission for rendering uniform the laws, was then agreed to.
The House went again into Committee of Supply the Militia estimates being taken up.