Province of Canada, Legislative Council, 8th Parl, 4th Sess (5 September 1865)
By: Province of Canada (Parliament), The Quebec Daily Mercury
Citation: “Provincial “Parliament. Legislative Council. The Quebec Daily Mercury (6 September 1865).
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Tuesday, 5th Sept. 1865.
The SPEAKER took the Chair at three o’clock.
The Bill to authorize the Curé and Marquillers of the Fabrique of the Parish of Notre Dame de Quebec, to borrow a certain sum of money on security of the property of the Fabrique, having been reported from Committee without amendments, was read a third time and passed.
Also, the Bill to incorporate Les Soerurs de L’Assumption of St. Gregoire; and
The Bill respecting the Gaspé Bay Mining Company.
MONTREAL HARBOR DUES.
Hon. Mr. BUREAU brought in the report of the Select Committee appointed to inquire into the reasons which induce the Harbor Commissioners be either amended or explained—Referred to the Printing Committee.
Hon. Mr. BOSSE,—To amend the Act respecting the ordinary procedure in the Superior and Circuit Courts of Lower Canada.
Hon. Mr. ALLAN—To legalize a certain assessment in the City of Toronto.
Hon. Mr. CAMPBELL reported from Committee without any amendments the Bill to amend the Act respecting Attorney—Read a third time and passed.
Hon. Sir N. F. BELLEAU said as the period for receiving private bills expired today, he desired to move that the period be extended to the 15th inst.—Carried.
Hon. Mr. CAMPBELL brought down a return to Address of the House relating to the elections of the Agricultural Board.
Hon. Sir N. F. BELLEAU moved that when the House adjourns tomorrow, it do stand adjourned till the usual hour on the following day, and then to continue in session until six o’clock, p.m., unless otherwise adjourned, to meet again at half-past seven o’clock, p.m., of the same day, and that every sitting upon each such meeting shall be considered as a distinct sitting of this House, as though such sittings had been on different days.—Carried.
CIVIL CODE OF LOWER CANADA.
Hon. Sir N.F. Belleau in rising to move the second reading of the Bill to sanction the Civil Code of Lower Canada said that in the opinion of many persons qualified to judge the legislation now submitted for the approval of the House was by far the most important of any ever enacted in Canada since its settlement. This legislation had been especially desired by that portion of our society which not speaking the language in which our laws were written had been obliged to make researches in order to become acquainted with its obligations and duties. This code would be found particularly useful to all the population of Lower Canada whether French or English as such would find it a sure guide in a familiar language. The complaint had often been made in the House that bills were passed which the English members did not understand and it was but right that people should understand the laws by which they to be governed. This Code was based on the Justinian Code and on the Code Napoleon, the two great sources of the legislation of all civilized countries. These were the origin and sources of all our civil laws, and he was sure the people would be glad to have the Code more level to the intelligence and knowledge of all portions of the population so that being known and approved by all it would be a cause of legitimate guide to us (the French people). The Code now submitted did not introduce new laws but was an embodiment of the ancient laws of the country. By an act passed in 1857 power was given to the Government to take measures for the codification of the Civil Laws of Lower Canada, the Commissioners to be appointed for that purpose to have power to re-unite, summarize and analyze the said laws up to the day of the promulgation of the said code, and when such code was legalised there would be no reason to dread its contents for they were simply what was before found scattered throughout a great many books such as the “Continue de Paris, &e.” This code was then only a resume of laws before in existence with a few modifications and the amendments so made had been introduced by the Legislative Assembly. The work of codification was still in course of accomplishment, the remaining portion, the Code of Procedure being all that was left to be done and when that was finished which would be next year, the work would be completed. This great undertaking had required the labour of eight years. It was indeed an immense work, a work which required patient study, research, application and comparison, and it was not surprising that it had required so much time to accomplish it. In his opinion it ought to be received with all due consideration and respect as the veritable summary and substance of our laws. This would be the more apparent when we recalled the names of the eminent gentlemen engaged upon the work. The Chairman or President of the Committee was the Hon. Judge Caron, once a member of this House and for a long time a lawyer in large and successful practice in this city. The next was Judge Day well known and esteemed as being intimately versed in commercial law and the late Mr. Justice Morin, equally well known and appreciated for his thorough understanding of the spirit of the laws and his remarkable aptitude in applying them. There, as the work proceeded, it was sent to all the twenty-four judges to be reviewed, with the request that they should offer any remarks thereupon which might be conducive to its greater perfection. When all this was considered, he thought the House would be disposed to receive the Code without apprehension. Then, besides the Commissioner themselves and the twenty-four judges, the work had been examined by the law officers of the Crown, and lastly, it had been carefully reconsidered by a committee of the most eminent legal men in the Legislative Assembly, who had discussed its whole contents with the Commissioners themselves. The Legislative Assembly had given its approbation to the work, and he trusted this House would be equally disposed to sanction it. He would not say any more to-day, but when the Bill came in Committee of the whole House, he would be prepared to enter upon an examination of the amendments made by the Assembly. He would therefore move that the Bill be now read a second time.
Hon. Mr. OLIVIER asked whether the amendments made by the Legislative Assembly had been printed and distributed to the members of the House (The Legislative Council).
Hon. Mr. BELLEAU—Yes.
Hon. Mr. OLIVIER was quite ready to grant that the Commissioners appointed to perform this great task were men eminently qualified for it, yet it was possible that in the multitude of subjects they had to deal with something should have escaped them. He had heard a discussion in the Legislative Assembly on the last phrase of the bill and fears had been expressed that the wording might give a retroactive effect to the Code. The phraseology used by the Commissioners was so constructed as to preclude this, at least it was their intention but fears were entertained that notwithstanding this such would be the possible result, and to prevent such possibility the said phraseology was amended, but he thought the amendment did not improve it but rendered it more obscure. The amendments ought to be in the hands of members before the bill was proceeded with, and for one he desired to see them.
Hon. Sir N. F. BELLEAU thought the hon. gentleman had confounded two things which were distinct, and if he referred to the clause in question he would see that it had no reference to the Code itself but to the time at which it was to come into force. The alteration made in the phrase was the substitution of the words “mis on force” for “promulgation,” that was the Code would have effect from the time appointed by proclamation for coming into force or effect instead of the time of promulgation.
Hon. A. J. DUCHESNAY—The amendments should be before the House.
Hon. Mr. LETELLIER DE ST. JUST said he concurred in the greater part of what the hon. Premier (Mr. Belleau) had stared. Previous to the work now completed our laws might be inappropriately described as being in a chaotic state. They were so fragmentary (morcellies) that they offered no advantage for study: they had in some cases been added to in others pruned, and it was hard to know the exact merits. The propagator of a work re-uniting in one code all these scattered laws was a great moral gain to the country (hear, hear) and it was but just to say that its accomplishment had been wisely put outside, and beyond the reach of all political influences (Hear, hear.)
It had been confided to men whom all agreed to regard as eminently fitted for the work, and he was disposed to accept it as it was. But it was nevertheless possible that some points should have escaped the scrutiny even of these able and excellent men which might hereafter give birth to litigation. The question was whether the House should sanction the work and assume the responsibility of so doing or should receive it on the responsibility of the Government, under whose auspices it was introduced? It was clearly not possible for the House in the short space of time allowed for the examination of so extensive a work, to give it the scrutiny necessary. If it were to be responsible for the strict accuracy of all that it contained. If we were to set about retrenching here, and adding there, we might be destroying the relations between the parts and bringing back a state of chaos. Nothing human could be perfect, and he did not expect this code to be so, but yet it was the kernel (noyan) of a work which in time might be brought as near to perfection as possible. (Hear, hear) But he thought that before that time came the code would have to be tested and possibly to receive some checks which would make known its defects. He was not as well known a follower of the present administration but still thought that the code as presented should be received at their hands and sanctioned by the House, they, (the Government) taking the responsibility.
Hon. Sir N. F. BELLEAU—This we assume.
Hon. Mr. LETELLEIR DE Sr. JUST—The work was one which would diffuse the light of our laws among our fellow subjects of English origin, who to the present had not been able to appreciate it from the fact of not understanding sufficiently the language in which they were written. If such a code had been introduced at the time when the provinces were united he had no doubt many of our excellent laws would have been adopted in Upper Canada. (Hear, hear,) and with much advantage. In this way the two sections would have assimilated more than they had done, and the time might have been anticipated when we would have had but one homogeneous code for the whole province. (Hear, hear.)
In this way a process of real unification might have been going on, and the time might yet come. (Hear, hear)
If such a work had been accomplished at the Union he had no doubt the English of Upper Canada would have approved of many of our French laws and we would not have had session after session a multitude of applications for laws the very substance and spirit of which were found in the Code now before the House. (Hear, hear)
An instance had lately concurred in a matter which related to the rights of minors which
were amply protected by the French law, and so at the trifling expense of sone $25 or $30, a matter might have been settled which must have cost over £50. He would as he had said willingly vote for receiving the Code.
Hon. Mr. SANBORN said that having been long connected with Lower Canada, he thought he would fail in his duty if he allowed the opportunity to pass without endorsing the opinions expressed by the hon. Premier and the hon. member for Grandville (Mr. Letellier) in relation to the Civil Code of Lower Canada now presented to the House, as to the advantages which the English portion of the population would derive from the accomplishment of this great work. It was hailed and with reason as a great boon. As was well known, Lower Canada had for its common law the coutum de Paris and the laws of France. That law in its traditions and associations was not, to say, known to the English inhabitants. Not so with the French, for even those who had not made it a study had grown up under its teachings, and it had become with them a sort of instinct. The again even to English persons who made it a study it could not be properly understood until they had just made themselves masters of the French language. By this Code now published in both languages it would become as well understood as any other law. As he had said, it was a great boon to Lower Canada. Here was no class legislation, but a legislation in the common interest. The elucidation of the law would give to all the knowledge by which their property was protected. He was glad to find that it would be placed before the country in English as well as French, and he had no doubt it would greatly tend to an assimilation of the laws of both sections. If the two sets of laws were equally well known, he had no doubt they would be found to assimilate more than had been generally supposed. We had been kept apart more by forms than by substantial differences, and the better our mutual laws were known the more likely we were to come into cordial agreement. (Hear, hear.)
There were many remedies in this land more direct than the common law of England, and he therefore gave it the preference. There were, no doubt, principles in the common law of England which were very justly the pride and boast of the nation, but there were also many excrescences, which if thrown out and some of our own principles of law incorporated in lieu thereof, would greatly improve it. The commercial law of England had been introduced here at the time of the conquest, and it had overcome every prejudice which might have existed against it. And, indeed, he believed it was now regarded in Lower Canada as superior to the French commercial code. With regard to the presentation of the Civil Code, he regretted it had been submitted so late to the House. He agreed with the hon. Premier that the gentlemen entrusted with the task were persons remarkably well qualified for it. Their labour had been lightened to be sure by previous toils in the same direction for their were several codes in existence of which they had no doubt availed themselves. It was not then quite a new work, since they had models to work by yet after all, it must have been a task of great difficulty. He had had the advantage of knowing Mr. Judge Day, and regarded him from his great knowledge of commercial jurisprudence as eminently fitted for the undertaking. He was not so well acquainted with Judge Caron, but from the great reputation he had acquired he had no doubt he was equally well qualified, but he would fail in his duty if he had not done justice to the memory of a man, for whom, while living, he had entertained the most profound respect. (Hear, hear.)
Judge Morin by his extensive knowledge of constitutional law, must have been, in the highest sense competent for the undertaking. He was a person whose extreme modesty prevented his merits from being known as they deserved—(hear, hear,)—but he (Mr. Sanborn) had had the advantage of his acquaintance and therefore knew how to prize and esteem him. (Hear, hear.)
He therefore took the code at the hands of these gentlemen with the conviction that it as nearly approached perfection as anything merely human could do, but at the same time he desired to see the Code placed in a position beyond the power of being changed at least for some years. Even though some inaccuracies were discovered, he would prefer that it should not be interfered with. He did not want to see it chipped away piecemeal so that its harmony should be destroyed. (Hear, hear.)
It had been suggested in the Legislative Assembly that it should remain 12 months before it was put in force, and the attention of the profession meanwhile called to it. Then when opinions had settled down he would desire that no alteration should be attempted for some time to come. The hon. member concluded by expressing a regret that the Committee which had examined the work had not been a joint Committee of both Houses, in which the legal men of the Council as well as those of those of the Assembly could have sat. He did not think that justice had been done to the House in the matter and the consequence was that as there was no time for examination, the Code must be taken on trust. Nevertheless he reiterated his opinion that it was a highly meritorious performance and believed it would be so regarded by the country generally.
After a few words more from Hon. Mr. LeTellier in answer to Hon. A. J. Duchesnay, who thought it was the duty of the House to examine the whole Code before sanctioning it, the Bill was read a second time.
Hon. Mr. OLIVIER said he had put the question (already noted,) merely for the purpose of ascertaining whether the phraseology employed by the codifiers as to the work having a retroactive effect had been amended or not in the other House; for it seemed to him that the amendments proposed would lend to render the phrase ambiguous instead of clear.
He would ask the Hon. Premier to postpone the Bill until tomorrow.
Hon. Sir N. F. BELLEAU has no objection to do so. He might repeat, however, that the only change in the clause in question was the substitution of the words mise en force for promulgation.
Hon. Mr. LETELLIER suggested that the Bill be read at once a second time, and to-morrow the necessary explanations might be given.
The suggestion was adopted and the Bill was then read a second time, and ordered to be brought up in Committee of the whole tomorrow.
OTHER SECOND READINGS.
To incorporate the Caisse de Bienfaisance de Temperance St. Jacques of Montreal.—Hon. Mr. RYAN.
To enable alien to transmit and take property by descent. Hon. Mr. CAMPBELL.
To amend the law relating to Masters and Servants. Hon. Mr. CURRIE.
To secure to wives assurance on the lives of their husband.—Hon. Mr. CAMPBELL.
MONTREAL HARBOR EXPLANATION.
Hon. Mr. LACOSTE moved the second reading of the Bill to explain the act relating to the Harbor Commission and Harbor of Montreal.
Hon. Sir N. F. BELLEAU took objection to the title of the Bill, which he said should have rather been an Act to modify and change the tariff of the Corporation of the Harbor of Montreal. He raised the question of order, holding that the Bill was a private bill, and required notice.
Hon. Mr. LACOSTE thought all bills relating to commissioners and public trustees were regarded as public bills.
Hon. Mr. BUREAU supported the same view.
After some discussion—
The SPEAKER decided that the Bill was a public bill.
It was then read a second time.
The House then adjourned.