Province of Canada, Legislative Assembly, 8th Parl, 3rd Sess (31 January 1865)
By: Province of Canada (Parliament), Morning Chronicle
Citation: “Provincial Parliament. Legislative Assembly. Tuesday, Jan. 31” [Quebec] Morning Chronicle (1 February 1865).
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TUESDAY, Jan. 31st.
The SPEAKER took the Chair at three o’clock.
After the reading and presentation of petitions and other routine business—
THE MEMBER FOR SOUTH ONTARIO.
Mr. GIBBS, the newly elected member for South Ontario, was introduced by Hon. Messrs. Howland and Abbot, and took his seat.
THE MEMBER FOR NORTH ONTARIO.
Mr. M. C. CAMERON, the newly elected member for North Ontario, was introduced by Hon. Messrs. J. A. Macdonald and Carling, and took his seat.
By Mr. GEOFFRION—Bill to protect property in bees, and to prevent their seizure in certain cases. (Laughter.)
A MEMBER.—Have you taken the sting out of it? (Cheers.)
Hon. Mr. COCKBURN.—To amend and extend the provisions of chapter 30 Con. Stal., U. C., respecting interpleading.
By Hon. Mr. DORION—Bill to amend the act incorporating the “Union St. Michel des Saints de Montreal.”
By. Hon. J. A. MACDONALD—Bill for quieting titles to real estate in Upper Canada.
By Hon. Mr. COCKBURN—Bill entitled “An Act respecting Registrars, Registry offices, and registration of instruments relating to lands in Upper Canada.”
By Mr. PERRAULT—Bill to amend the act for the encouragement of agriculture, arts and manufactures in Lower Canada.
By Hon. J. A. MACDONALD—Bill to regulate the costs of arbitrators.
By Hon. J. A. MACDONALD—Bill respecting Police Magistrates in Upper Canada.—The hon. gentleman explained that the bill was intended to give those magistrates the power of acting on the Frontier and elsewhere to an extent to which two only could act at present. On going into law, one Police Magistrate could act alone in arresting and committing parties on the Frontier and in other places, whereas at present one magistrate had to obtain the co-operation of another in certain cases.
By Mr. WALSH—Bill to grant certain powers to the executors of the estate of ——.
By Hon. J. A. MACDOANLD.—Bill to amend the law relating to dower in Upper Canada.
By Hon. Mr. CARTIER.—Bill to amend the law relative to the appointment of magistrates in remote parts of the Province.
In reply to Hon. Mr. DORION—
Hon. Mr. CARTIER explained that it was an act passed last session, by which every officer was constituted an ex-officio magistrate. In England that provision, when introduced into the law there, did not find favor, and it was desired that this privilege should be confined to the commanding officer. The object of this bill was merely to restrict this power or privilege to the commanding officer here.
The Civil Code of Lower Canada
George-Étienne Cartier [Montreal East, Attorney-General East] moved
For leave to introduce a bill entitled “An Act concerning the Civil Code of Lower Canada.
Antoine-Aimé Dorion [Hochelaga] was understood to ask the hon. Attorney-General for some explanation as to the manner in which he proposed to provide for the adoption of the Code.
George-Étienne Cartier [Montreal East, Attorney-General East] (in French) said—The hon. gentleman was quite current in putting such a question. He intended to make a few observations on the work and also to state what would be done to have the great work now before the House adopted as law. Since the Union there never has been proposed for adoption a more important measure than that of the codification of the laws of Lower Canada. It was to be hoped hon. members would listen with patience to the observation which it would be his duty to make. It would be necessary to speak in both languages, and he trusted English members would not be impatient if his remarks in French were more lengthy than those in their own language, inasmuch as he trusted his explanations in English would be sufficiently ample. It was right, at the outset, to make some preliminary observations as to the history of the codification of the Lower Canadian laws. In 1857, at the opening of the session, His Excellency [Edmund Head], in a paragraph of his opening speech, had expressed his intention of laying before the Legislature measures for effecting the codification of the laws and procedure of this section of the Province. This promise of His Excellency was now in a great measure definitely realized.
He (Mr. Cartier) had the honor, during that session, of submitting to the House a measure for the codification of the laws of Lower Canada, and for the preparation of a code of procedure. At the time this first step was taken, there was great clamor, great discussion. Those who opposed the proposition mainly based their objection on what they were pleased to call the impossibility of codification. He had in a great measure foreseen these objections. There were, do doubt, many difficulties then in the way of the great work which required removal. Among the defects of which he might, as a politician, be accused—and he was sensible of these defects—that which had been most commented upon was his obstinacy. Be this as it may, he had persisted in spite of all objection and all opposition; and he now had the satisfaction of presenting to Parliament a project of a civil code which was in no way inferior to the code of any country—either to the French Code or the Justinian Code, which formed the basis of all systems of law adopted up to the present time.
One of the great objections made to the law of 1857 was with regard to the clause obliging the commissioners to codify the civil law of Lower Canada. The object of the law of course was—not to allow them to make a code, but, on the contrary, to codify the laws as they existed, and as they proceeded with their work to make such suggestions as they thought were required. They were also instructed to give all the authorities on which the several articles of our law were based. This it was argued, by the opponents of the scheme, would impede the progress of the work, inasmuch as they said it would require too much labor. All these obstacles, real or imagined, had been surmounted, and a gratifying success had been obtained, and he (Mr. Cartier) therefore felt glad that he had persisted. The project of codification which he now had the honor to submit was accompanied by the authorities on which they were based.
Thus, the members of this hon. House, and indeed every intelligent person was in a position to see what its several articles were founded upon. The work itself amply attested the great labor which it must have required, and the fact that it ought not and in fact could not have been performed in a hasty manner. The work of codification fully justified the expectations of the public, and the confidence of His Excellency in the ability and skill of the Commissioners appointed for that purpose. Before entering upon the nature of the important amendments suggested by the Commissioners, he would refer to the learned jurists upon whom had devolved the task of preparing this great work. There existed in the minds of several persons a false impression as to what had passed between the late lamented Sir Louis H. Lafontaine and himself in reference to the appointment of Commissioners, it was stated by some that the late Chief Justice had not an offer made to him, as should have been made, of forming part of the codification commission, or that if an offer had been made it was made in such a way that the Chief Justice could not but refuse. There impressions were quite erroneous, and he (Mr. Cartier) had, most fortunately, in his possession the letter written to him by the late Sir L.H. Lafontaine in reply to his letter on behalf of His Excellency the Governor-General, making the offer that he should form part of the commission. He owed it as well to the memory of the late Chief Justice as to himself to read the letter in question. He had made it a maxim always to preserve correspondence, inasmuch as he had found it to be very often useful. The letter which he (Mr. Cartier) had written was in the following terms:—
“TORONTO, 28th Nov., 1859.
“SIR,—I have the honor to request you to have the kindness to allow me to submit your name to His Excellency the Governor-General with the object of affording His Excellency the opportunity of naming you one of the Commissioners who are, under the provisions of the Act 20th Vic. Chap. 43, to codify the laws of Lower Canada in civil matters. While testifying to you my hope that you will be good enough to acquiesce in my request, I may intimate that, should you [illegible] thereto, His Excellency will hear of it with pleasure.
“I remain, etc.,
“GEO. E. CARTIER.”
To this letter Sir L. H. Lafontaine replied as follows:—
“MONTREAL, 1st Dec., 1857.
“SIR,—I have the honor to acknowledge the receipt of your letter, in which you ask me to be kind enough to allow you to submit my name to His Excellency the Governor General, with the object of affording His Excellency an opportunity of naming me one of the Commissioners, who are, under the provisions of the Act 20th Vic., Chap. 43, to codify the laws of Lower Canada, in civil matters.
“I fully appreciate the assurance which you give me, that, should I accede to your request, His Excellency would learn it with pleasure. Nevertheless, I find myself under the necessity of answering that I cannot accept the offer you make me; very strong reasons oppose it, the first being the only one which I need give—the state of my health, which would not permit me to undertake any task so laborious as that of the codification.
“I have the honor to be, etc.,
Unfortunately the learned Chief Justice felt that his health was failing him, and, sad to say, his belief proved correct. We had lost him, and in losing him we had lost one of the most distinguished jurists and public men that Lower Canada had ever proclaimed. The offer referred to in the foregoing correspondence was made on the 28th November, 1857, and the refusal was dated December 1st, of the same year. Difficulties of various natures having subsequently arisen, there was an interruption of action until the autumn of 1858.
He (Mr. Cartier) left Canada for England in September, 1858, and returned about the commencement of December of the same year; and he was happy to be able to state that, on his return he immediately reiterated his offer to Sir Louis H. Lafontaine. The offer was repeated, with an expression of the hope that the year which had elapsed had restored the learned Judge to the full enjoyment of his health. He, however, replied that he was debarred from accepting the proposal made to him on the ground that the reason already alleged still existed, and he again gave utterance to his thanks for the honor done him in mentioning his name to His Excellency.
Seeing that the valuable services of Sir L.H. Lafontaine could not be secured, he bethought himself of organizing the codification commission differently, and this organization took place in February 1859, when organization took place in February 1859, when Judges Caron, Day and Merin, were authorized to act as commissioners under the law. It might not be out of place here to add that there were attached to the commission as adjoints or assistants two of the most able and skilled secretaries who could possibly be named,—Messrs. Beaudry and Ramsay. The law of 1857 enunciated the principle of appointing a Secretary of French origin, but thoroughly conversant with the English language, and a Secretary of English origin thoroughly versed in the French language. Both gentlemen named to act in this capacity fulfilled to the letter the requirements of the law in this respect.
As to Mr. Beaudry there perhaps was not, in Lower Canada, a man more familiar with the law. As to Mr. Ramsay, he desired also to say that he was a man of distinguished ability, and he regretted deeply his dismissal for political causes. Mr. Ramsay added to the advantages of a highly classical education, a thorough knowledge of English and an equally perfect knowledge of the French language and idiomatic expression. These qualities were the more valuable inasmuch as he was necessarily placed in a position to watch carefully the correctness of the translations of the great work—to see that everything was properly tendered, and that the real value and acception of the original was faithfully and accurately reproduced. Having thus alluded to Mr. Ramsay’s ability and the regret he experienced at that gentleman’s dismissal, he thought it right to do justice to his able successor of whom the Commissioners spoke in the highest terms.
He came now to the personnel of the Commission—Judges Caron, Day and Morin. It was not necessary to speak at great length with regard to the first-named gentleman, Judge Caron, who was a distinguished advocate of Quebec, and during his active professional career had been concerned in the greater number of the most important suits ever tried in the District of Quebec. Possessed of abilities of a high stamp, he had been a member of the Legislature before the Union, and had been a member for the Legislative Council after the Union, having for years presided over that distinguished body. His position and experience formed the best guarantee of his fitness. As regarded Judge Day, everybody—and above all the members of the Montreal bar—knew his thorough legal training, his philosophical spirit and his great power of analysis.
He (Mr. Cartier) had occasion, as a young advocate, to practice before Judge Day, and he was therefore personally cognizant of his merits. The learned Judge was also Solicitor-General in 1812, and as such in the discharge of his duties left nothing to be desired, having fulfilled them with an amount of care, attention and skill which was most creditable to him. He was still young when appointed a Judge, and on entering upon his judicial duties he had understood that something was wanting with respect to his knowledge of the French language, and he (Mr. Cartier) had observed with what labor the learned Judge had applied himself to increase his store of legal knowledge and of the French language. When he left the Bench to assume the duties of a Commissioner of Codification he was considered one of the best judges in Montreal.
As for the third Commissioner, Judge Morin, his name was historical in Lower Canada. He presided over this House as Speaker for years. He had the habits and experience of legislation. There was no man in Canada who united modesty and ability to such an extent as this learned Judge. Clear headed and laborious, he was a vulnerable aid to the other Commissioners. It would, perhaps, be said by some that his professional experience had not been very extended, but those who urged such an objection did not know anything of his natural talents, his extended knowledge and his great energy. His brother-commissioners said that his assistance to them was of such a nature that they did not know who could of replaced him.
Such was the personnel of the codification commission whose work was now before this House. It would now be his duty to offer some observations on the work of these gentlemen. This project of code contained a few amendments suggested by the Commissioners, as they were authorised to do by the Act of 1857, relating to, but distinct from, the subject-matter of the code which contained the law of the country as it is. He would proceed to point out succinctly the proposed amendment.
On the article referring obligations, it was suggested to adopt the principle laid down in the Code Napoleon, viz: to give effect to the convention so far as damages were concerned, instead of regarding them simply as comminatoire. It was moreover suggested, in the same manner as was done by the compilers of the French civil code, to abolish the distinctions of fraude. They also proposed to alter the sum to which the rile relative to the adduction of verbal proof applied, from twenty-five dollars to fifty dollars. Under the titre de vente they suggested that the convention of the parties should suffice for delivery, as provided by the Code Napoleon.
With regard to the contracting parties themselves the convention itself should have force (fait foi), but with regard to third parties their rights would be determined by priority of registration. Under the titre de louage another disposition of the Civil Code of France was recommended to be adopted with regard to the resolution de bail. The proposed amendment was much needed, inasmuch as there was much abuse arising from nominal sales, and it was therefore suggested there should be no resolution de bail in cases of voluntary sale, but that resolution should only take place in the case of sale by decrees of justice.
Under the titre de succession it was proposed to do away with the distinction of bien propres. In the article on donations it was also proposed to abolish donations after marriage entre epoux. They were frequently the cause of fraud, and it was proposed that they should be done away with. What was further proposed was the abrogation of the right of revocation in the case of survenance d’enfants, and this was a natural consequence of one of the amendments first alluded to. In regard to wills the saisine testamentaire was suggested instead of the delivrance de lege, which change would prevent many difficulties.
With respect to prescription, the suggested change was the abolition of the prescription of one hundred years and that of twenty years. The former was obsolete, was, in fact, useless, and the prescription of twenty years, as applied to absentees, might well be abrogated in there days of facility of communication, and it was a wise suggestion. There were the principal amendments proposed by the Commissioners: and having thus laid them concisely before the House, he would say to the House that if this code were adopted we should have the advantage of possessing a code equal to any in existence.
There had at one time been a difficulty in the way of codification, owing to the different holdings of seigniory lands and lands in free and common socage. This obstacle had, however, been made to disappear in 1857, and it had produced a most excellent effect. Since that date, the settlement of the townships had progressed at a wonderful rate. Lower Canada had been reproached with being backward in the matter of settlement, but the state of the law as to the holding of land should be borne in mind. A man did not know whether he was leaving a rich heritage of land to his children or whether he was leaving them a mass of law proceedings. He repeated that the removal of the distinction of tenure already referred to had been attended with excellent results.
The act of 1854 had not gone as far as was needed. But for the manner in which the work then commenced was completed by the subsequent act of 1857, Seigniorial tenure might still, to some extent, have existed for another century or two. Our position just now was excellent. The Seignorial Tenure was abolished. There was no distinction between seigniory lands and those held in free and common socage. And, now, as soon as this project of code became law, we should have the satisfaction of seeing the laws accessible to the people of the country, in both languages. It was an inestimable advantage which permitted the citizen to read the laws in a language which he understood.
If there was anything which could lend, in the highest degree to perpetuate our system of jurisprudence and to elevate and strengthen us as a people it was the act of thus placing the code of laws within reach of the comprehension of all, as it would be placed by the adoption of the project of codification. Persons of English origin and those of French origin would alike be able to consult and appreciate the laws under which they lived—and to understand the nature and extent of obligation which they might contract, as well as the laws which related to it. He was very glad, indeed that the Civil Code came before the House in such an auspicious manner. There was no question of a violent, radical change, or of a great and unexpected transition, but merely the adoption of our laws in a codified form, with such amendments as experience had showed to be desirable.
When the Civil Code in France was being discussed, several distinguished publicists and jurists, Benjamin Constant and others, endeavoured to cast ridicule on the work of the eminent gentlemen who were engaged in the work of codification,—finding fault with the code on the ground that it contained nothing new—that it was in fact a mere compilation of the law. The codificators defended their work in the most spirited manner—on the ground that the law of a country was not a thing of caprice—that it was not a thing to be made in a moment; but that, on the contrary, it was the result of experience and wisdom of ages. And the assailants of the code, and innovators, were left without a reply to their wise arguments.
We had in our own code the fundamental principles of the Roman Code, which was acknowledged by all to contain so much of wisdom and justice. The Roman was energetic and positive, and in this he differed from the Greek whose genius was of another order. In Greece the publicists acquired perhaps greater eminence, but the Roman law was marked by sounder wisdom—it was in fact “written reason.”
As Larminiére had stated—nothing in the world, after Holy Writ, had been written so just as Roman Law. We had its great principles in the code now before us. We had also a great portion of the Coutume de Paris, and of all the French coutumes none was equal in wisdom to that of Paris. Perhaps there might, in some places, be a want of order or some obscurity of language, in this coutume; but, taken on the whole, the Coutume de Paris was unexcelled. It was the production of the great legal knowledge of the old Parliament of Paris which comprised the most distinguished jurists of France. We had also incorporated in it our own statutory Law, for each country of course required its own particular legislation for its own particular wants.
He should here remark that the Commissioners of Codification had, in virtue of the act of 1857, instructions to incorporate the provisions of the civil code and the commercial code—in the same order as in France. It was an error to think, however apart from a few special cases, that there was any very great difference between the principles which governed civil and commercial matters. The order and division of work, in our own Code, was much the same as in the French Civil code; but they had placed commercial matters apart so that those articles of law which had more particular reference to commerce could be more readily found.
He might here mention that, when the laws of Louisiana were codified, it was proposed to compile a separate commercial code. It was found, however, when the civil code was completed, that there was actually no necessity to promulgate a special commercial code.—The hon. gentleman then referred to the number of articles in our civil and commercial code; and then went on to observe that the Commissioner ought to be congratulated for having so ably and closely analysed their work and reduced to such a comparatively small number the articles of our law having reference to our persons and properties. The dispositions of the law of 1857 established that, as soon as the Commissioners decided to make a report to His Excellency on any important portion of their work, it might be communicated to the Judges. This provision of law had been observed to the letter. Each time Commissioners made a report to His Excellency it was transmitted to the Judges; but he should say the Judges had not thought proper to make any report thereon, with the exception of Judge Winter, who had made to reports. He had, however, heard many judges and many advocates say that the Code had already greatly facilitated the decision of several cases.
It was hardly necessary to allude to the proceedings that took place to promulgate the Code Napoleon. We all know the difficulties which arose, and the fact that the Code was often put in danger. It would be unjust, however, to the memory of Louis XIV and XV, and the memory of Colbert, Lamoignon and D’Aguesseau, not to refer to the efforts towards codification of the Laws of France in their times Lord Brougham had, however, truly said of the First Napoleon, in the House of Commons, that though his memory might live as a general and a statesman, yet that he would be handed down to posterity by the great code which bore his name. Formerly there were in France, sixty distinct cotumes, and such was the sub-division of the cotumes that there were in reality three hundred different systems of Law every time he changed post horses.
Some Hon. Members—Laughter.
George-Étienne Cartier [Montreal East, Attorney-General East]—The great Louis XIV understood clearly that while there was as much divergence of law there could be no real stability. A commission was established under the able President Lamoignon, which did not, however, complete its work; but which nevertheless produced a very excellent and profound treatise. The King finding that the object he desired was not attained, formed, with the assistance of Colbert, a sort of code composed of the ordinance of 1667, the ordinance of commerce of 1673, and the ordinance of marine of 1681. During the reign of Louis XV some work of a similar nature was done. The work of codification had therefore been in reality going on very long. The great difficulty of their system arose from the difference between the Provinces ruled by droit coutumier and those ruled by droit écrit. After the abolition of seignorial rights in France—brought down as it was by violent means, while similar reform was afterwards effected in our own country without any injustice—the Constituent Assembly determined to have a code, but the work was not followed up by the Legislative Assembly.
Next came the Convention. A project was submitted to them, and again in the years two and four of the Republic; but it was rejected on the ground that it was not sufficiently revolutionary. The work afterwards presented to the Corps Legislatif was necessarily in a great measure similar with the previous one—that of Cambaceres, but yet years elapsed before it was adopted. He thought it right to make these remarks about the history of codification in other countries, by way of reply to any accusations of delay or slowness in the codification of our own Lower Canadian laws. When the Commission was organized in February 1859, Judge Day was absent in England, and, he believed, did not return until the summer of the same year. Another cause of delay was the illness of Judge Marin in the end of 1859 and beginning of 1860. There had, in fact, only been a good opportunity for work since the month of July, 1860, or thereabouts.
The Commissioners had now submitted their work, and he hoped it would meet with the approval of the House, for it was a work they had performed, not precipitately, but diligently and seriously. But while they had worked at the civil code, whey were also engaged in compiling a code of procedure, which was now in a very advanced state. Having thus laid before the House the matters of fact relative to the code which it was right should be made known; and he would say that, if the inhabitants of Lower Canada wished that their country should increase in strength and power, and that it should maintain its national existence, nothing was better calculated to promote and perpetuate it than a civil code. The adoption of a complete and efficient civil code was the most pregnant source of national greatness. Look, for instance, at the Roman Empire. None of the ancient nations had produced a more complete system of legislation. The conquering empire had passed away, but the code still lived.
Some Hon. Members—Hear, hear.
George-Étienne Cartier [Montreal East, Attorney-General East]—Not only did it still live, but it had been adopted by nations which, in the days of barbarism, had conquered the Empire. The wisdom of the ancient Romans had, so to speak, civilized their conquerors.
Some Hon. Members—Hear, hear.
George-Étienne Cartier [Montreal East, Attorney-General East]—Napoleon I was that many who, of all others, had realized in modern days the idea of an heroic conqueror of olden times, and he had bestowed upon his country a great and useful code: and his successors were compelled to adopt it, and almost the only change which had since been made in it was to change the name, by calling it the Civil Code of France, instead of the Code Napoleon. Napoleon had passed away, but the code still lived, and it governed the persons, the properties and the everyday actions of the people of France. And if the nephew of that great man were now on the throne of France, perhaps there was no cause had so much to do with it as the promulgation of the great code.
If we wished for national greatness we should adopt a code. We should have Confederation he trusted—and if we did not it would not be for want of work on his part—and if we obtained it, our Code, complete in itself, working well for both origins, and containing everything that was good in the Roman, French and statute law, would make its way on its own merits. It was purely civil; it contained no reference to criminal matters.
The criminal law of England, surrounded by all the safeguards of liberty, was the best in the world. Governed as we were by this unequalled criminal code, and by our own civil law, we might freely boast that our freedom was protected by the most mighty legal safeguards in the world. While speaking of the criminal law he would not allow the opportunity to pass without paying a deserved compliment to Judge Black who, in 1841, by the introduction into our own statute book, of the acts embodying the English criminal law, had rendered the greatest service to the French Canadians. He had thus placed the law within the reach of the French Canadian portion of the population, whereas previously it was with difficulty they could find means of obtaining a correct knowledge of it or consulting it.
He (Mr. Cartier) appreciated this act of the Hon. Mr. Black and he had caused his friends to appreciate it. It was therefore with pleasure that he took this opportunity, to-day, of paying a tribute to the talents of that distinguished gentleman. He desired also to pay a tribute of appreciation to Mr. Wickstead for his able services in connection with the revision and consolidation of our laws, and he was happy indeed to have this opportunity of referring in fitting terms to the modesty and ability of that gentleman. But he (Mr. Cartier) would not, however, continue any longer to trespass on the patience of hon. members. He thought it would be admitted he had entered at sufficient length into the details and he therefore believed it was the time he should move for leave to introduce this bill.
(The hon. gentleman then sat down amid loud cheers, and afterwards made a few brief explanatory remarks in English.)
In reply to Antoine-Aimé Dorion [Hochelaga]—
George-Étienne Cartier [Montreal East, Attorney-General East] explained the mode proposed to be submitted to the House for the promulgation of the Code. It resembled in a great measure that which had reference to the revised statutes. It was proposed the Governor should sign an original roll of the Code, apart from the amendments suggested, which would also be signed by the Clerks of both Houses, and deposited with the Clerk of the Legislative Council. It was also proposed, in accordance with the act of 1867, to submit for the adoption of the House a resolution or schedule containing the suggested amendments. There amendments, when reported on by a committee, could be discussed by the House and sent up to the Council. Then the Commissioner could add these amendments to their work, as well as anything done this session. Then they would be submitted to the Governor, and when he has sanctioned the roll, he could issue a proclamation determining when the Code should become law.
Antoine-Aimé Dorion [Hochelaga] proceeded to comment on the Code itself, arguing that there was an amount of negligence evident in the drawing up of the Code, which was unworthy of its character. He proceeded to quote a number of expressions which he considered obscure and loose in the extreme.
In answer to Christopher Dunkin [Brome],
George-Étienne Cartier [Montreal East, Attorney-General East] said that since the hon. gentleman last spoke of the matter, he (Mr. C.) had enquired of Mr. Desbarats respecting it. The latter told him that copies could be furnished at $5 a piece, provided a certain number were ordered.
Joseph Perrault [Richelieu]—400 copies.
Christopher Dunkin [Brome] said that was a matter no individual could guarantee, and that offer practically amounted to nothing at all. It appeared then that parties outside the House could really get not copies of the Civil Code.
George-Étienne Cartier [Montreal East, Attorney-General East] said he had done what he could in the matter, having spoken to Mr. Desbarats as to the terms upon which he could supply further copies to the public. That gentleman—as before stated—answered that if a certain number were taken, they could be furnished at $5 a piece. He did not recollect if any number was mentioned.
Joseph Perrault [Richelieu]—I was told it was 400, and that only 50 copies of the first edition remained for disposal.
George-Étienne Cartier [Montreal East, Attorney-General East] said he would try to make some arrangement to meet the wishes of members in this matter. He now knew the feeling of the House that it was desired a number of extra copies should be furnished the members of the legal profession and others at a moderate price. He would ascertain from Mr. Desbarats what amount of copies would require to be taken to enable the Code to be disposed of at a moderate price—say $2.50, which would not be too high.
Some Hon. Members—Hear, hear.
It being six o’clock the Speaker left the Chair.
The Legislative Assembly stopped for dinner recess.
After the recess—
BORDER OUTRAGES BILL.
Hon. J. A. MACDONALD said he would state briefly the reasons why the Government assumed the responsibility of introducing a bill of this nature. We were all aware that, under ordinary circumstances, such a bill would not receive the sanction of a legislature composed of gentlemen who held the same principles of government which obtained in the mother country. But it was because we are in an exceptional state—that the country was in a position requiring legislation of this character, that the Government brought in this bill tonight. It would be seen on the face of the bill that it was not designed to reform any portion of our law, but merely to meet the present unhappy circumstances in which this continent was now placed. The bill embraced three objects. With regard to the first, it was proposed to enable the Government to depot, under certain circumstances, and under certain restrictions provided in the bill, aliens seeking an asylum in Canada, in consequence of war raging in their own country—to remove persons who had proved themselves unworthy of the asylum afforded by this country. When the present unhappy war broke out in the United States, a considerable number of fugitives sympathising with the Southern States came to this country. They were received, as exiles, with kindness, hospitality and consideration, and this although from our position as near neighbors of the Northern States, the sympathies of the people of Canada might have been supposed to be with the people of those States in the war in progress. He was bound to say, however, that the great body of those Southern refugees had shown by their conduct that they were worthy of that consideration.
Until lately, as far as he could discover, every acknowledgement was made by those fugitives of the asylum and hospitality they had received. It was not until lately—within a year or so, that any suspicion arose that a contrary course was going to be pursued by a portion of those refugees. The first occasion on which it was supposed or believed that there was any desire on the part of Southern refugees in this country to attempt any enterprise contrary to our law of neutrality, was when the hon. member for Cornwall was [Illegible] the head of the Government. When he (Mr. J. A. Macdonald) heard that that hon. gentleman (Mr. J. S. Macdonald) had received information of an intention on the part of Southern refugees or sympathizers to violate our law of neutrality by a breach of the peace of the Northern States—and upon which information the head of the then Government put himself in communication with the authorities of the United States—he, with a majority of the people of this country, received it with a great deal of [Illegible]ity. But the Government of that day had, of course, information of a precise nature upon the object. During the short time we had been in office we had been put in possession of similar precise information, which, of course, it would be unwise and almost impossible to submit to this House, that upon the part of some of the Southern men in our midst an intention was entertained of [Illegible]ing a course contrary to that followed by them during the first two or three years of this war. They had attached two steamers upon the Western Lakes, and a person was now in custody at [Illegible] for inducing a steamer to come over to the Canadian side and receive a body of foreign Southern sympathizers, we doubt not, for the purpose of committing acts of robbery and plunder. This was the first instance of an overt act of hostility against the United States by Southern sympathizers leaving our shores. We all know of the violent outrages committed by the St. Albans raiders. Those acts were of the most violent character, the perpetrators, being guilty of the most outrageous violation of the right of asylum and hospitality extended to them by Canada. And we all knew that rumors were rife in all parts of the country that those raids were about to be repeated, and it was believed that we were in great danger of a continuance of such enterprises. It was out of the question to suppose that this country, situated as it was, in a position contiguous to several of the Northern States, could allow its peace and happiness to be destroyed, its security to be destroyed, and itself to be placed in danger of actual hostilities with our neighbors in consequence of the acts of Southern refugees or sympathisers, If raids, attacks or outrages against law were allowed to be committed by persons enjoying an asylum in this country, we must expect to encounter retaliatory raids and other hostile measures from the other side of the lines, and must remember that, even if the United States should exert all its power and authority along its frontier, it would be unable to restrain the natural [Illegible] that would arise in the minds of the people of the United States if their peace were continually invaded and their people and country outrages in the manner which had already been observed in the case of the St. Albans’ raid and enterprises elsewhere. He was bound to state that the Government fully felt the responsibility of introducing this measure: and that, if it were not for the exceptional state of affairs, and if the Government had not in their possession evidence showing the continuance of a desire on the part of persons of Southern views to repeat these outrages, and if the Executive were not fully impressed with the belief that those outrages, unless redressed by the strong had of the law, would be continued—and that, if the peace could not be preserved, in this country, as regards the United States, we would suffer the consequences of an insufficient execution of the law—the Government would not have introduced this measure to the House and country.
It must be remembered this was not a bill affecting the subject. The portion of the proposed law that referred to aliens referred to them alone. Now, according to the general principles of the law of nations, aliens had no rights whatever in this or any country but their own. They merely lived in a country, not their own, by [Illegible]erance. According to the practice of civilized nations, the inhabitants of countries at peace with each other received the citizens of any of those countries in a friendly manner. But this was merely the act of the citizens, no Government being legally compelled to receive the citizens of any other nation. There consequently could be no cause of complaint against one nation refusing to admit upon its territory the inhabitants of another country. However, it had always been the policy of England to receive the subjects of foreign nations, with which she was at peace, and give such every shelter and asylum as long as they obeyed the laws. But notwithstanding, England had never hesitated, when the necessity arose, to exert that power and authority which we claimed at present for our protection, to protect herself, by enacting laws similar to this bill. The clauses of the measure affecting aliens were very nearly a transcript of the law passed in England in 1818. In 1792—the time of the French Revolution—there was a stringent alien act passed. So again were alien acts passed in 1803, 1814, 1815—all of a very stringent nature—many more so than the clauses of the bill he now introduced. Although the circumstances under which the English bill of 1818 was passed were not exactly similar to the present, it was principally introduced for the purpose of accomplishing a result similar to that contemplated by the present measure. In 1818, when the Revolution swept over the Continent of Europe, thousands of political refugees fled to England, and it was apprehended their intention was not so much to seek an asylum as to stir up a revolution in that country. We, in Canada, were now very much in the same position as England in 1848. Besides the exiles driven here by the stress of fortune, there had come, within the last two or three years, a number of men forced hither by adverse circumstances, and who, though not contemplating any interference with our institutions, desired to make use of our country as a basis of operations against, or means of attacking the United States, and perhaps with the view to induce a war between Great Britain and the United States. The plea of the parties concerned in outrages against the United States, that such were committed in retaliation for similar acts perpetrated by the armies of those States in the South, was, obviously, a mere pretence. He feared that, as the course of the war became more and more adverse to the prospects of the South, a spirit of desperation was evinced in the breasts of Southerners residing here, and that some of the aliens in this country had actually been desirous, by outrage after outrage upon the Northern border States, to induce a return of such outrages by them upon our territory, and thus create a state of war between Great Britain and the United States.
He (Mr. J. A. M.) believed that though many of the Southern refugees fully appreciated the kindness they had here received, and did not desire wantonly to injure Canada, the interests of their own country with them overrule every other consideration; and unless they knew they would be restrained they would continue to perpetrate such acts to force on hostilities between this country and the United States. Under those circumstances the Government, with the sanction of the Imperial Government, had felt it to be their duty to introduce the clause relating to aliens. He believed that even the fact of this bill passing would prevent the necessity of its ever being put in force.
(Hear, hear, and cheers.)
He believed that the aliens living in our country, knowing that so long as they obeyed its laws and did not abuse the right of asylum they were safe, but that when they created any disturbance on our border they would be treated in the same manner as British subjects, would abstain from those very acts to prevent which the bill was intended.
It was not so much against those unfortunate young men who, filled with enthusiasm for the cause of their country were willing to throw away their lives in its behalf, that this bill was intended and calculated to operate, but against those behind the scenes, as it were—those cool, calculating men staying in Montreal, Toronto and elsewhere, who sent such young men upon expeditions involving the chance of destruction. The measure was intended as a check upon the older schemers. The hon. gentleman, after calling attention to the fact that the Imperial Act of 1848 was introduced by a Liberal Government, read an extract from the speech of Sir Geo. Grey, justifying and advocating the act in question. Some of the men in the Government of 1818 were in the present English Cabinet, which had sanctioned in the strongest measure the bill we now introduced from a sense of the necessity of self-preservation. The bill was, in the fist instance, the conception of the Canadian Government itself, with the approval of the Imperial Government, and was not introduced from any suggestion, or request, or demand, or expression of any desire by the United States Government for such legislation.
It was a transcript of the English bill of 1848, adopted to the circumstances of this country. In England, upon a notice in writing, the alien was able to be notified to leave the country, by the Secretary of State, within a certain time—not as an act of Government, but as a mere departmental act, and it was upon this latter ground that the Marquis of Lansdowne had supported the English will in the House of Lords. The Secretary of State was thereby empowered to act departmentally, and without communication with his colleagues, give notice to any alien to leave the country, upon a request or information in writing stating the circumstances considered justification for such course. The Canadian Government had not adopted this system, thinking it too great a power to place in the hands of any other minister. Therefore, we had given that power expressly to the Governor General himself, of course acting upon and with the advice of his responsible Council. So that, instead of the removal of an alien being the act of only one minister, it would be that of the whole Government, for which all could be responsible to the country.
This was to offer additional security to the alien against his being hostilely or wantonly interfered with or removed from this country. The English act provided that a party should have the full right of appeal to the Lords of the Privy Council. We had no such tribunal in Canada, as apart from the Cabinet Council—that was to say the Executive Council—was the Privy Council, but all the members were included in the Cabinet. The provision intended to meet this point therefore was—that although the Governor might, with the advice of his responsible advisers order the issue of a warrant, an alien would have his right of [Illegible] to the Governor in Council judicially, and have the right to a statement in waiting of the charges against him, and be allowed to answer those charges, and have the right to council, and [Illegible] the abduction of evidence. All this with the benefit of full publicity, was, it [Illegible] to him, the fullest protection that could be required. As to the assertion that such an enquiry ought to be held judicially, it would do away with the usefulness of the act altogether, allowing the party to remain in the country, or to remove therolrom—so as to be governed by political consideration and not merely judicial ones. If there was evidence sufficient for the purpose of holding a trial before the Court, there was no necessity for the Act. It was exactly in cases of this kind, where there might be conspiracy or composition on foot for the purpose of committing outrages or forcing hostilities between the two countries, and evidence of which could not be obtained except on the supposition of treachery on the part of some of the conspirators, that the Act would be of service. But, in some cases there might be other and reliable evidence of refraction of the Law as in England; although in 1818, there was a law in England respecting conspiracy, composition, raids &c., yet it was considered necessary to pass a law giving the Government special powers to deal with cases in which the information upon oath could not be obtained.—The hon. gentleman proceeded to read extracts from the speeches of the Marquis of Lansdowne, Lord Stanley, the Lord Chief Justice &c., advocating the passage of the English Alien Bill, and the conferring of ample powers upon the Government to deal with aliens concerned in breaches of international domestic peace. All the statesmen of that time, with one or two exceptions, supported the Government in carrying out the bill, the second reading of which was passed by a very large majority. Although the question of the right of asylum was raised, and that parties charged the Government with the desire to expel foreigners to please foreign powers, so great was the sense for the necessity of this bill that it was carried almost [Illegible]. He believed, in his conscience, that this country was in a more precarious position than England occupied in 1848; and if there was then a necessity for such a bill in that country there was a greater for a like measure here.
In 1838 the circumstances of the United States and Canada were just reversed. Then the latter was suffering from Northern raids, and there was daily apprehension of the occurrence of such. An appeal was made by the Imperial Government to that of the United States to put a stop to such outrages, and the Government of the latter, finding that the powers conferred upon them by the Neutrality Law of 1818 were insufficient for the preservation of peace on the frontier, did not hesitate to pass a law—to operate for two years—giving strong additional powers to their officers on the frontier for the purpose of protecting Canada against the continuance of such outrages, which law was found sufficient. He though no hon. members, then, would hesitate to support those clauses providing for an increase of power to the Government to prevent such incursions either by land or water, such as the Americans had given their Government to restrain offenders violating our territory.
The last branch of the bill enabled the authorities to call on individuals who had arms or warlike munitions in their possession, or were manufacturing such, to account for their possession or the fabrication thereof. Such parties would be obliged to shew that these arms, &e., were not to be used in breaches of the peace of our neighbors:—that was absolutely necessary. He had found in his own experience that arms and cannon were being adopted for the purpose of exportation to the United States for war[Illegible] purposes. We know they were being prepared in Canada, and that shot, shell and munitions of all kinds were being manufactured for one belligerent. We watched the parties in this business, but had no means of seizing the articles or calling their owners to account, through reliable information as to their being destined for the United States was at hand. We have most distinct evidence that, at this moment, a similar course of procedure is being followed in Western Canada: but as yet there was no law to provide for such a condition of things. For all the Imperial Act of 1818, for the purpose of enabling it to call on parties having arms or warlike munitions, ships, &c., to shew they held them or in case of manufacturing such that they were doing so for some legitimate purpose. These were the provisions of the bill of which he now moved the second reading.
Hon. Mr. DORION fully realized the difficult position which we occupied, and the necessity of using stringent measures to prevent trouble with our neighbors. He, however, believed that the bill before the House, in its present shape, gave two great powers to the Executive, and he hoped some of the clauses would be amended. He believed also it was only right we should have the correspondence with the Imperial Government on the subject before passing any enactment. The fact of the matter was, that the passing of the bill in its present shape would cause a whole host of spies and informers to spring up, who would make it a business to denounce aliens to the Executive. There should be a provision for some sort of preliminary trial of aliens accused of hostile intent towards the friendly power, if it was only to require that the information against them should be made on oath.
At least there should be some protection. He was not disposed to oppose the bill at this stage, but he hoped the necessary changes would be made, and that we should shew that we were as particular about the rights of asylum as they were in England.
In England they were in the same position as we were with regard to the United States. Yet they had not enacted any law specially applying to it. The law of 1848, was passed under widely different circumstances and for a different purpose.
Hon. Mr. CAMERON, after a few preliminary remarks on the bill, asked if it was the intention of the Government to pass this bill in the state in which it now is.
Hon. J. A. MACDONALD—Yes.
Hon. Mr. CAMERON would not be able then to vote for the second reading. He thought that it was giving the Executive of this country a power which was dangerous to the liberty of the subject. He believed the effect of the measure would be totally and entirely to benefit the people of the United States a great deal more than the people of this country. It was proposed we should do no more in this colony than was ever attempted to be done by the Imperial Legislature. It was true that Alien Acts had been passed from 1793 down to a late period; but it was equally true that, whenever an attempt was made, by any foreign country, to drive England into the passing of any measure for the benefit of such country, the spirit of the people of England invariably arose against it.
It was shewn that, while prepared to do their duty, they were unprepared to do that which , though considered right in itself, was not to be performed at the dictation of any foreign power. Therefore, every act passed in England, from 1792 to 1848, was introduced at the will of English statesmen and not at the dictation of any foreign government. He was not prepared to refuse the United States the same reciprocity they had extended to us in 1838—in fact he would enact for their protection the very clauses they enacted for ours at that date. He would not, and did not see any reason why we should go one single step further. The powers given by this act were such as were only required in the most extraordinary emergencies. We ought to have more proof than we had of the necessity of an act of this kind before the Government submitted it. We might be told, if we did not pass it; and we had found often people in England had been quite willing to pass an act for us they would not have dared to offer for the guidance of Englishmen. (hear, hear.) He believed there was no desire here to bring about a war with the United States. He could not help feeling what our position would be if engaged in a conflict with that power, and what ruin and misery it might entail; but, at the same time, we should not act as if being bullied by any foreign power, or obliged to legislate at their dictation. The hon. gentleman went on to say that, following up the provisions of one part of the act, the habeas corpus would be virtually suspended, and that the alien could derive no benefit from it. Such a person could be sent away on a mere statement in writing by any person without an oath or judicial enquiry. He could in fact be kept for months in prison, without the benefit of bail, as it would be difficult in a community in which his acts would be represented as so heinous and likely to entail such sad consequences to find any person bold enough to be his security, and afterwards departed. The people of England had always been very jealous regarding the habeas corpus and the right of asylum, and when, after the Orsini conspiracy, the government was prepared to pass a bill regarding foreign refugees, the Legislature, considering that there was a shadow of intimidation in a menace on the part of the Emperor of the French, in order to effect the passage of the measure, indignantly rejected it, determined that, though the law might be right in itself, they would never place it on the statute [Illegible]k at the dictation of a foreign power. In 1861, however, when foreign pressure had disappeared, the bill became a part of the law of the country. If we were not England, we were England’s colony, and the same privileges and the same rights possessed by her people were our heritage, and the same hearts that beat in them also animated us.
He was not afraid to declare that he had sympathies in regard of this war, and that they were in behalf of the Southern States, whose gallantry and patriotism had won universal admiration.
But for all this we would not act partially on behalf of either belligerent. Considering the feeling of bitter hostility against England in the United States—considering that they had given notice of the repeal of the Reciprocity Treaty, and their intention to equip gunboats for the lakes, and that their journals had manifested so much hostility towards the mother-country and this country, could anybody say that they were entitled to claim any favor from us? No human being could put it on the grounds mentioned.
He maintained that, by this bill, the Executive would be armed with too strong powers, and if he (Mr. Cameron) was the only man in this House to oppose the bill, he would vote against the second reading in its present shape.
Hon. Mr. BROWN said the nature of the speech made by the hon. member for Peel (Mr. Cameron) was explained by his proclaimed sympathy with the South. His high-flown notions of liberty, however, contrasted strongly with his sympathy with those who were battling for the privilege of holding four millions and a half of their fellow-men in slavery.
The hon. gentleman then went on to say that the Government would not have asked for the passing of such a law were it not of the most absolute necessity. The moment, however, that it went forth that this bill had passed its second reading, he was sure there would be a degree of peace along the frontier which had not existed for a long time. The hon. gentleman concluded by a number of other arguments in favor of the bill.
Mr. POWELL expressed his regret at the determination of the Government to oppose any modification or change of the bill, and he hoped they would yet change their determination. He was confident, no doubt, that the Government would not make any improper use of the powers it was proposed to [Illegible] upon them—that, in face these powers would be perfectly safe in their hands. His objection to the bill was founded on the fact that it would establish an extremely dangerous precedent. The English bill referred to was enacted under peculiar circumstances, and in troubled time, for the protection of England when Chartism was rife at home, and emissaries from abroad were supposed to have come over for the purpose of sowing disturbance in England. The argument of the last speaker was predicated upon the supposition that the raids which had recently taken place were previously conducted in Canada. Was there anything, however, to shew that the bill now before the House would have the effect, in reality, of remedying the dangers and difficulties complained of?
Hon. J. A. MACDONALD explained, in reference to his bill, that some hon. members who had spoken were mistaken as to its provisions. The Government should be thoroughly satisfied that the accusation against the alien was well-founded. The alien was to be notified through the official Gazette, and if he desired he could have a copy of the accusation, and he might shew cause against it, and have witnesses examined on oath, and in fact have a formal trial.
Mr. POWELL said that if all this was guaranteed by the bill, be Mr. Powell and many other hon. members failed to [Illegible] it. He did not offer these observations out of any spirit of hostility to the Government; but because he was anxious the bill should be properly amended and modified.
Hon. Mr. HUNTINGTON agreed with a great deal of what had been said by the Hon. President of the Council, but he believed it was right there should be a full and open discussion of the subject.—The hon. gentleman then went on to deprecate the hostility of a portion of the Canadian press to the United States, and to urge in strong terms the position of danger in which Canada, in his opinion, stood, and the consequent great necessity of maintaining our neutrality and preventing attacks on a friendly power. He would vote for the bill because we were in a state of possible peril, and he hoped they would not abuse the powers it proposed to confer.
Mr. DUNKIN would like to see a number of amendments to the bill; but he approved of part of it, and he would therefore vote for the second reading. The parallel of England in 1848, and that of Canada at the present day, was, however, not good—it did not, in fact, hold, inasmuch as the English law was for the purpose of preventing internal dissention.
The hon. gentleman then went over the provisions of the bill, commenting thereon, and declaring that the modifications he desired to see introduced, were so that it might not have that very effect we desired to prevent—namely, to lead us into difficulties we wished to avoid.
Mr. MORRIS spoke in favor of the bill, and explained the reasons why he intended to vote for it. He considered the bill necessary, and quoted a number of English precedents for it.
Hon. J. S. MACDONALD spoke at great length on the bill. He would vote for the second reading of the bill, but he protested against a number of objectionable clauses which it contained. He then went on to criticize in strong terms the general tendency of those clauses which was had: and he held that we should not disregard those landmarks by which England had made for herself a name and a fame among the nations.
The Executive should not have the power it was proposed to confer on it by this bill.
Mr. M. C. CAMERON in a long and eloquent speech expressed his total dissent from the provisions contained in the five first clauses of the bill. Such legislation had no precedent in England. He most heartily desired to prevent any invasion of the friendly territory of the Federal States; but he believed it was altogether two [sic] much to give the Executive power of deportation of aliens. The hon. gentleman then alluded at some length to the Barley case, and to the fact that it was proposed to deliver up this man who held a Confederate commission.
Hon. J. A. MACDONALD—I thought he was a British subject.
Mr. M. C. CAMERON said he was, but he had a Confederate commission, as he had a right to have. But did not the honorable gentleman know full well that the armies of the Federal States were to a great extent indeed recruited from the British people of this Province?
The doctrine of neutrality which the spirit of these five clauses enunciated was a one-sided neutrality indeed. If there were no amendments made to the bill, he would vote against it on the third reading. He regretted to have to take a course opposed to that of the Government on this matter.
Mr. A. MACKENZIE spoke in favor of the bill, and considered it a measure which we required in order to protect ourselves.
Mr. SCATCHERD said it would be most humiliating to the people of Canada to submit to anything like that which was contained in the five first clauses of this bill. The Southern proclivities of some hon. members were talked about; but it should be borne in mind that the Northern sympathies of hon. gentlemen opposite had been loudly proclaimed by their organs of the press. [Here the hon. gentleman read an extract from the Globe of Tuesday, Jun. 24th, in which it was stated that several members of the Government are strong Northern men.] He then went on to denounce the five sections already referred to, in strong language. He considered that they interfered with the habeas corpus. He would vote for the second reading of the bill; but would certainly vote against the third reading if it were not changed.
Mr. COWAN put a question as to the position of naturalized British subjects.
Hon. J. A. MACDONALD, in reply, observed that a person naturalized by the laws of Canada was not an alien in Canada; and as this bill applied expressly to aliens it could not affect any naturalized subject in the Province. The hon. gentleman then read a despatch from the Duke of Newcastle, dated July 1863, warning people against the idea of any person naturalized in any colony having a right to British protection beyond that colony, and stating that every certificate of colonial naturalization should bear on the face notice of its purely local character. In consequence of this despatch, and the policy of the Imperial Government which operated very hard on persons naturalized here and operated harder in former years than now, it would be seen the matter was beyond our control/ In order to prevent any naturalized subject from thinking that he had a protection beyond this colony which he had not, passports were confined to British subjects who really had a protection. On the establishment of the passport system in the United States, as it was absolutely necessary that naturalized subjects going thither should have some protection, a form of certificate had been prepared, stating in effect the party was a British subject living in Canada; but not entitled to protection beyond its bounds; that he was desirous of using that instrument outside of Canada in a legitimate manner, and of passing through the States and returning to Canada peaceably, and that on these grounds protection was solicited. He was surprised at the course of the hon. members for Cornwall and Hochelaga, in view of the fact that the Opposition in England supported the Government, on introducing a similar measure in 1848, as shewn by the speeches of Lord Derby and others. He protested against the imputation of dictation by any foreign Government. There had not been any such. Had there been any such dictation he would not have been the man to introduce this measure. Not only had there been no dictation or request on the part of the American Government, but they had not even insinuated, in any war, directly or indirectly, that they desired such a bill, or that it would improve the relations between the United States and Great Britain and Canada. It was introduced by the Government solely on its own motion and responsibility. He declined the support of those who promised support if the alien clauses were struck out. Unless the Government was supported on this measure as a whole, it could not be responsible for the peace and welfare of this country.
Those who talked about the liberty of the subject and extraordinary powers on the part of Government, &c., would—if another raid took place, and men were shot down in the streets of our neighbor’s towns, and public institutions and citizens plundered, and more steamers burned, and in case that Gen. Dix should issue another order which the Government of the United States did not rescind,—would be the very men who would hold the Government responsible for all the sad consequences.
From the time the present Government had been in office it had known the perilous situation of this country, and the responsibility resting on its shoulders had been fearful; and it would be a poor answer, and one which would not be accepted by the people of this country, if, while Western Canada were laid waste by the raids in retaliation of offences perpetrated in the United States by parties from this Province—the members of the Government were to say that they feared to take the responsibility of enacting measures for the prevention of outrages upon our neighbor’s territory by refugees in our midst.
It was necessary to observe that the same Lord Palmerston who, in 1858, declared he would not pass any bill for the expulsion of aliens at the dictation of any foreign power, now came forward, in answer to a communication from the Canadian Government, and sanctioned this bill.
If, in 1848, it was necessary for England to pass a bill to prevent civil war in that country, it was quite as necessary for us to pass a measure to prevent a foreign war.
He (Mr. Macdonald) repeated that himself and his colleagues had acted without dictation from either England or the United States, but with the full sanction of the Government of the former. The true way to deal with a neighbor or adjoining nation was to do what was considered right, whatever the consequences might be. We think it but right and just to the United States that Canada should preserve the peace, to do which we should be armed with those powers we now ask. If the United States ever tried to interfere with Canada—which he did not think they would—it would be time to reject with in indignation any such proceeding. With regard to the objection that the liberty of persons would be at the mercy of any spy or scoundrel who had no object in bringing a charge. It did not follow that the Government was bound to act on any information which such parties might furnish. If evidence was not to be received from such quarters or elsewhere, however, the bill was unnecessary. Were we to allow men like Burley and Lieut. Young, who had committed such a wretched robbery in St. Albans, to abide in this country, and plot such offences again? The object of such operations was to embroil this country with the United States; and were we going to have this country pay heavy taxes to keep up an army on the frontier; and allow parties to rob and seize steamers with impunity, and not allow persons to come forth and betray their fellow-conspirators organizing such outrages?
We surely were not to allow parties to plot serious mischief in Canada, when by any evidence we could prevent it.
What was the case at present? Why, are our offices, employed to protect the frontier, yesterday, had given information on oath that an extensive raid was about to be carried out on the border; and this day, from the Government of the United States itself came information obtained from their own officers confirmatory of the intelligence sent us yesterday.
Hon. J. S. MACDONALD—We heard that a dozen times and it proved to be untrue.
Hon. J. A. MACDOANLD—Did the hon. gentleman ever get any other information about enterprises of this kind?
Hon. J. S. MACDONALD—On several occasions, when in office, we got information of intended raids, but when we sent officers to the places indicated we found there was not a word of truth in the reports.
Hon. Mr. McDOUGALL—On several occasions too, that we got information, on sending officers to the placed indicated we found out it was true.
Hon. J. A. MACDONALD went on to say that any information against parties, as contemplated by the bill, must be given in writing with the informant’s name subscribed; but such would not oblige the Government to act, and it would not act unless reliable information was given that the person charged was engaged in illegal enterprises—then the accused would be allowed to go upon his defence and prove, if he could, that he was a peaceable man engaged in lawful business. If the party was of good character he could obtain bail, and no hardship would be suffered. As he (Mr. Macdonald) had already stated, the bill would act as a check upon the cool designing men who, in the absence of law, enabling us to reach them, plotted outrages which they sent foolish, misguided youths, full of patriotism for a cause they considered sacred, to execute. It was hoped that, if this bill were carried, such parties seeing the danger of persisting in such conduct would return to the harmless courses by which, during the early part of the American civil war, their conduct in this country had been characterized. The Government deeply regretted the necessity for the introduction of a measure of this kind; but it was under a great sense of responsibility to do so. It could not be held responsible for the peace and prosperity of this country unless armed with the powers sought by this bill; and those who opposed the measure, should it be defeated, must take the consequences of any further outrages that might be committed upon the border of the Unites States. It was a responsibility he, for one, shrunk from undertaking.
Mr. SHANLY said one thing was quite certain—that what the Hon. Atty. Gen. West wanted was the bill, the whole bill and nothing but the bill.
He did not think the member for Peel had asked a great deal because he (Mr. Shanly) presumed that if the bail was to be passed in its integrity—as it stood, it might as well be passed this night; but the hon. gentleman had asked if he understood rightly, two things—first that the information to be filed against the unfortunate refugee should be under oath. Was that too much to yield under British law? The hon. Atty. General West was asked also that instead of keeping these people in durance vile from November until May and after, if necessary, they should have the right of appeal. Was that much to ask in a British country? He thought not.
The right of appeal which the mover of the bill had alluded to would be no appeal at all. Surely this appeal to the Governor General in Council would be virtually without effect. They might receive that appeal or not; and the power was still in the hands of the Executive to deal with the parties as if they had no appeal whatsoever, and they might be left in [Illegible] to rot there seven months out of twelve. He thought the hon. member for Peel had not been unreasonable in this matter, and he would oppose the bill on the second reading, if these two points were not to be considered. As it rarely happened we legislated on questions of a national or international character, we should be particular in legislating for the first time, as it was on questions which would attract the attention of every country in Europe as well as the whole of this continent.
He thought it was somewhat dangerous under any circumstances to invest the Executive with such immense powers as were conveyed in this bill. There never was a time in the history of this country when it was more dangerous to invest a Ministry with such extraordinary powers, and for the reason that it was undoubtedly very strong—too strong. The powers this act proposed to invest in it were, from what had been said to-night, likely to be exercised before three months, in doing what would be almost the first instance of the like in British history—namely, departing from British soil unfortunate refugees.
Hon. J. A. MACDONALD.—There were several instances.
Hon. J. H. CAMERON.—Not under the same circumstances.
Mr. SHANLY said that in the troublous times of the peninsular was there were some few instances, so few that they were considered worthy of remark. We all knew that the powers named by the bill had always been most jealously guarded by legislatures, and that no ministry had ever cared, since this war, to exercise the powers which were only permissive. We desired to do our duty towards our neighbors and live on terms of amity with them. He trusted the bill would yet receive some of the amendments suggested by the hon. member for Peel. If not he should be compelled to vote against it for these reasons. All the clauses after the 5th had to be brought into operation through out courts, and could not, he thought, be objected to. This, however was a bill that would attract the attention of the whole world—more especially if it would be found necessary, as he believed it would—to remove from our soil some of those unfortunate refugees; and he, for one, would be very unwilling to meur the odium that might possibly attach to Canada, of being the only spot of British dominions where those unhappy men might feel that asylum which they had always found under the British flag, did not exist as regards Canada.
Mr. PARKER arose to speak, but, considering the lateness of the hour, suggested the adjournment of the debate.
Hon. J. A. MACDONALD objected, stating that he had intended, on getting through the second reading to-night, to ask the House to go into committee on the bill to-morrow.
The members were then called in, and the motion for the second reading was carried on the following division:
YEAS.—Abbott, Alleyn, Ault, Beaubien, Bellerose, Biggar, Blanchet, Bourassa, Bowman, Brousseau, Brown, Burwell, M. C. Cameron, Carling, Caron, Cartier, Cartwright, Cauchon, Chambers, Chapais, Cockburn, Coupal, Cowan, Currier, De Boucherville, De. Niverville, Dickson, A. A. Dorion, Eric, Dorion, Duckett, Alex. Dufresne, Dunkin, Dunsford, Evanturel, William Ferguson, Fortier, Galt, Gaucher, Gaudet, Geoffrion, Gibbs, Haultain, Higginson, Holton, Houde, Howland, Huntington, Irvine, Jackson, Joly, Knight, Labreche-Vigor, Laframbouse, Lajoie, Langevin, D. A. Macdonald, John Macdonald, J. A. Macdonald, J. S. Macdonald, Alex. Mackenzie, Hope Mackenzie, McConkey, McDougall, McFarlane, McGee, McGiverin, McIntyre, McKeller, Morris, Morrison, O’Halloran, Paquette, Parker, Pinsonneault, Poulin, Poweil, Raymond, Rémillard, Robitaille, Rose, J. J. Ross, Sylvester J. Ross, Walter Ross, Rypal, Seateherd, Scoble, A. M. Smith, Shuter J. Smith, Somerville, Stirton, Street, Sylvain, Tasehereau, Thompson, Tremblay, T. C. Wallbridge, Walsh, Webb, Wells, White, Wilson, Wood, Amos Wright, Alonzo Wright.—104.
NAYS.—J. H. Cameron, Ford Jones, Pope, Shanly.—4.
Hon. Mr. CAMERON read his proposed amendments for the information of hon. members.
Hon. J. A. MACDONALD was understood to reply that, with such amendments, the bill would be rendered useless.
It was then resolved the House go into Committee on the bill to-morrow, as the first order of the day.
The House then adjourned at a quarter to one a.m.