Province of Canada, Legislative Assembly, 8th Parl, 4th Sess (25 August 1865)
By: Province of Canada (Parliament), Morning Chronicle
Citation: “Provincial Parliament. Legislative Assembly. Friday, Aug. 25th” [Quebec] Morning Chronicle (26 August 1865).
Other formats: Click here to view the original document (PDF).
Friday, August 25
The SPEAKER took the chair at three o’clock.
By Mr. SCATCHERD— Bill to authorize Henry Hart Coyne to practise as an Attorney in the Courts of Law and Equity in Upper Canada.
By Mr. IRVINE— Bill to incorporate the Union Bank of Lowe Canada.
By Mr. McKELLAR— Bill to confirm certain side lines in the Township of Tilbury East.
By Mr. WALSH— Bill to authorize the Church-wardens of the Town of Simcoe to sell certain lands.
By Mr. MORRIS— Bill relative to the Christ Church property in the City of Ottawa.
By Hon. Mr. LANGEVIN—Bill to amend the charter of the DeLery Gold-mining Company.
By Mr.————— Bill respecting the construction of a railway from Fort Erie to Windsor.
By Hon. J. A. MACDONALD— Bill to enable aliens to transmit and take real property in this Province by descent.
By Hon. J. A. MACDONALD— Bill to incorporate the Rideau Club at Ottawa.
By Hon. J. A. MACDONALD— Bill to extend and amend the Acts respecting the Public Works, to and with regard to works necessary for the defence of the Province.
By Hon. Mr. COCKBURN— Bill to incorporate the Northumberland Bank.
By Mr. IRVINE— Bill to grant to W. B. D. Janes certain privileges in connexion with an invention.
By Hon. Mr. CARTIER— Bill to incorporate the Montreal Licensed Victuallers’ Protection Society.
The following unopposed private bills were advanced a stage:—
Bill to amend the Act for the erection of the municipality of Kingsey Falls.— Mr. J. B. E. DORION.
Bill to facilitate the winding-up of the estate of the late Grace Russell.— Hon. J. S. MACDONALD.
Bill to enable Joseph Auctil and Auguste Fournier to be admitted to practice as Notaries in Lower Canada.— Mr. J. DUFRESNE.
Bill to extend the time for the completion of the Brockville and Ottawa Railway Company.—Hon. Mr. ABOTT.
Hon. Mr. McDOUGALL laid on the table the following returns:—
Correspondence respecting the appointment of a Deputy-Shipping-master at Quebec.
Correspondence respecting the speech delivered by Mr. Potter, consul-general U.S., at Detroit.
Correspondence respecting the change of name of a certain Post-office in the North Riding of Leeds.
Civil Code of Lower Canada
George-Étienne Cartier [Montreal East, Attorney-General East] moved
That the Report of the Committee of the Whole on the Act respecting the Civil Code of Lower Canada, and the question of concurrence on the resolutions reported from the said Committee be taken into consideration.
Antoine-Aimé Dorion [Hochelaga] said this was one of the most important pieces of legislation that had come before the country since the Union. It was evident that, after the Commission having been in session six years, from the appointment of a Secretary to it the other day, that it was likely to sit six more years. He objected to the hurry with which the code had been passed last session. The House had only gone through the amendments suggested by the Codification Commissioners themselves. The Committee of the House had never read the code, but only the suggested amendments to the present law.— One of the principal objections he had to the code was that the Codifiers were doing away with the necessity of tradition altogether. This would cause endless difficulty and litigation, in as much as when a creditor seized property, he would find that a sale had taken place two or three years before, although the property was still in the possession of the vendor.
Then we found a different provision for other real estate than mining lands. In one kind of real estate we found that registration within 60 days after purchase would have the effect of preserving the rights of the purchaser; in the case of sales of other kinds of real estate it was provided that registration within 30 days would preserve the purchaser’s rights. Why should there be any difference in this matter? The hon. gentleman went on to complain that under the penal clause, or clause relating to stipulations for damages arising from non-performance of a contract, the person failing to carry out the agreement might be absolutely ruined by being made to pay, not the actual damage, which he had ceased, but some large sum which had been stipulated as the nominal damage. He would have much preferred the old rule of our law on that subject. He also found objection to the change respecting the faculty de remere. It was, he thought, only right that there should be a small delay granted to the vendor in such cases.
Under the change now proposed, the moment the delay stipulated for re-purchase had expired, there was no further delay whatever. It was wrong, he thought, to have the provision which had been made respecting the signature of authentic acts, in as much as it contained a singular contradiction. In the article 98, relative to wills, he found another singular and contradictory provision, to the effect that notaries could not be related to the party, but the witnesses might. He found, however, that, in an ordinary deed the notary could be related to the parties, and the witnesses could not, to the degree of second cousins even. The hon. gentleman proceeded to a minute condemnatory criticism of other provisions about witnesses to wills. He found also that the codifiers had come to the conclusion that there was no limitation to the right of entail.
Another objection to the Code was keeping it in the provision as to legal and customary dower. There was no good ground why this clause should have been retained. In registry another unwise alteration had been made, rendering it necessary to register deeds for the transfer of real estate, at full length, except in the case of litigation and division between co-heirs and co-proprietors. This change would entail an expense of $20, in payment of the Registrar, instead of only $1 or $2, which was all that should have been rendered necessary. The removal of the restrictions which formerly protected and ensured to the children by a first wife a share of the parental property, leaving it as now enacted, optional with a father to give all to the second family, was an immense change.
Then, again, the wording of the article about the dictation of wills was very confused. The hon. gentleman expressed dissent from the wisdom of the clause respecting civil death, inasmuch as it was exceedingly contradictory regard to the disability arising from religious profession. He did not think the changes to which he had taken exception were for the better, and he believed that important changes in the Code might have been submitted with advantage.
Félix Geoffrion [Verchères] briefly addressed the House in reference to a remark which he had made during the speech of the hon. member for Hochelaga (Mr. Dorion), defending himself against an exception taken thereto, by the Hon. Attorney-General East [George-Étienne Cartier]; and concluding with some remarks upon details of the Code.
George-Étienne Cartier [Montreal East, Attorney-General East] said he would be most happy to hear any remarks or suggestions which hon. members of this House had to make in respect to the Code and its amendments, so that he might be in a position, when replying to the hon. member for Hochelaga (Mr. Dorion) to embrace the whole range of arguments of hon. gentlemen.
Christopher Dunkin [Brome] confirmed the statement that the Committee last session had not be able to examine the entire body of the Code, which had received but a slight examination at the hands of the members. It should be well remembered that no Committee of this House had as yet really examined this great work. Not thinking that the Code would be pressed through during this hurried session, he had not sufficiently examined the Code during the recess. Before he would call attention to some of the clauses which he thought required amendment, he would wait to hear the explanations of the Hon. Attorney General [George-Étienne Cartier]. He referred particularly to the clauses respecting civil death.
George-Étienne Cartier [Montreal East, Attorney-General East] said there had been an important amendment suggested in Committee which would serve as a guide to changes of a less important character.
Christopher Dunkin [Brome] felt that the discussion of this Code had been of the most incomplete nature. If, however, the Government were determined to push it through he would offer it no objection. He thought there should be a delay of a year between the promulgation of the Code and its coming into forces, to give professional men time to acquaint themselves with the new provisions.
John A. Macdonald [Kingston, Attorney-General West] said that as regards the Code undergoing revision by the House, it was out of question that a Legislative Assembly could undertake the codification of a national Code of laws. The one thing that Governments could do and had done in such matters was to select the most able and skilled lawyers for the work of codification, in whom was reposed implicit confidence. It would be merely destroying the work of such well qualified workmen if the legislature interfered with their labors. Legislatures must receive such works as they would any other kind of work from the hands of skilled artisans. Any action by the House should be merely a pertain offering suggestions to the Codifiers on certain peculiar points, or in the case of doubts on the part of the Codifiers as to what the law really was in some particulars, Parliament could declare what the law was. Unless the amendments to this Code was very numerous, there was no object in its being passed in connexion with a committee or without a committee.
Christopher Dunkin [Brome] desired only to urge strongly on the Government the propriety, or rather the absolute necessity, of allowing some delay between the promulgation and the combining in force of the new Code. It would require that length of time for the public to obtain an idea of the changes which were being made. There was in the public mind a fixed opinion about certain laws and customs, with respect to which changes had been made. There, for instance, was the clause comminatoires. Every person understood that according to the present system one was only liable for the amount of damages actually proven; and people therefore would not hesitate to sign a contract containing any penal clauses, however onerous. Under these circumstances, he thought, as already stated, that— if not a year, at least sufficient time to permit of a session being held in the interval— should be allowed to elapse between the promulgation of the Code and its coming into force.
Antoine-Aimé Dorion [Hochelaga] adverted to the fact that the French Code had been so carefully considered and discussed, the discussion occupied some thirty-five or forty volumes.
George-Étienne Cartier [Montreal East, Attorney-General East] replied, showing the great length of time which the formation of a Code in French Code had occupied at various periods, and the number of experiments made in many reigns, caused by the number of the customs of various provinces.
It being six o’clock, the Speaker left the chair.
The Legislative Assembly stopped for dinner recess.
After the recess,
The Speaker took the chair at eight o’clock.
The debate on the Code was resumed.
George-Étienne Cartier [Montreal East, Attorney-General East] said he would proceed to answer the observations and arguments of the hon. member for Hochelaga [Antoine-Aimé Dorion] in the language he himself had used, with which, though English, most of his French Canadian friends were familiar. At the outset the hon. member had found fault with the alleged precipitate manner in which the Committee had gone through the Code.
He (Mr. C.) thought the remarks on the subject were not warranted. The Committee had done its work in the most fitting manner, and every amendment suggested had taken into consideration by the Codifiers. Not only was this the case, but the Committee, on many occasions in order to be informed of the alterations in the common law, called the Codifiers before them, where they explained why any amendments of the common law, called the Codifiers. Not only was this the case, but the Committee, on many occasions in order to be informed of the alterations in the common law, called the Codifiers before them, where they explained why any amendments of the common law were suggested. No doubt the result of those interviews had been to convince the Committee of the propriety of the report now submitted.
The hon. member had no reason to complain or think that the Committee had not gone thoroughly into the examination of the statements of law made by the Codifiers, as by the law regulating their own proceedings they were obliged to do. They were appointed to codify the laws of Lower Canada as correctly as possible, while being authorized to suggest any amendments to the existing law; and were told to distinguish any suggestions of their own from the actual laws they were appointed to codify. He had introduced the bill for this purpose in 1857, and he knew how responsible was the work thrown upon the Codifiers.
They were obliged to report the progress of their work from time to time to his Excellency the Governor General [Viscount Monck] and send to him partial reports of what they had done in codification. Then, the Governor-General [Viscount Monck] had to send these reports to the Judges, in order that they should have the opportunity of giving their opinion upon the work of the commission. The object was to investigate the state of the law, ascertain what it was, and find out if any errors had been committed in regard to the work of the codification. It was his duty to read the various reports of the work as forwarded to His Excellency [Viscount Monck], and had never found such an error in their statements of the law as to require a notification to him that the law was not being correctly set forth.
Some Hon. Members—Hear, hear.
George-Étienne Cartier [Montreal East, Attorney-General East]—When the hon. member for Hochelaga and Hon. Judge Scott were in the Government they had the opportunity of examining some of the reports of the Codifiers, and must have ascertained any errors made in reporting to His Excellency [Viscount Monck] what was the common law of the land. He (Mr. Cartier) however, had never found that either of them had ever reported the occurrence of mistakes in the work of the Codifiers during the period in question. Well, since he had regained office he had had to consider the whole code of Lower Canada, and must state, to the honor of the Codifiers, that it was extraordinary that three men should have displayed in such a laborious and responsible work, such an amount of steady labor, diligence and accuracy in reporting the law of the country. No one could suppose that the 24 judges of Lower Canada, to whom the partial reports of the Codifiers were submitted, could have ignored their contents.
This Code, moreover, had been as commonly quoted during the law 2 or 3 years as any other portion of the law of the land. This code had been used and applied as fast as it came out of the hands of the Codifiers. In regard to the charge of precipitancy and incorrect statement of the law, the Act of 1857, which authorized the codification, did not throw on the Committee the task of sifting every portion of the reports of the Commissioners. That would have been impossible. Would members not be more ready to accept the statements of the Codifiers as to what was the actual law of this country—of men who had been studying the matter four or five—than the statements of three or four Committees of the House, during three or four successive sessions. Hasty legislation was peculiar to all legislatures like ours. In England, however, they appointed trustworthy men, Commissioners, for such work, whose report as acceptable.
Now, by our statute, it was designed that the responsibility for the accuracy of the law should not depend on this House, or on aa Committee, but upon the Codifiers. They were not commissioned to make law for the whole country; and the Committee had to consider every suggested amendment from those gentlemen. Those amendments were very few. In answer to an objection of the hon. member for Hochelaga [Antoine-Aimé Dorion], he would say that we had two distinct modes of transferring property, one by a memorandum in writing. But what did the Codifiers do in regard to the transference of property? They adopted the rule which now prevailed in France after an experience of 50 years of the Code Napoleon, and had merely extended the principle of the act which existed in Lower Canada, as to any sale when one had a memorandum in writing. With regard to commercial transactions, they had extended the law so as to apply to sales of a civil and commercial character.
Christopher Dunkin [Brome] thought it would be admitted the Commissioners had gone a little beyond that.
George-Étienne Cartier [Montreal East, Attorney-General East] thought it would be admitted that in the committee some gentlemen pretended that the article of the Code in regard to sales, speaking in regard to enter les parties contraetant, did not affect the parti tiers. He (Mr. C.) wished to prove that, in adopting this principle, the Codifiers took what prevailed in Great Britain, France, and some parts of Canada, as to commercial transactions when there was a memorandum in writing. We ought to be grateful to them for having discovered and considered the conflicting rules which prevailed on this subject in Lower Canada, as well as in other countries with which we had most commercial intercourse.
[The hon. gentleman went on to prove that the law of France, with regard to the sale of real estate, was just what the Commissioners had recommended.]
Christopher Dunkin [Brome] said that what he contended was that the Codifiers had gone a little too far in order to make the law consistent and clear.
George-Étienne Cartier [Montreal East, Attorney-General East] proceeded to quote from Imperial Statutes 19th and 20th Vic., and the law of Scotland in respect to the tradition of property sold, and argued that these laws were passed to render sales perfect by mere consent. By another Imperial statute the law in different parts of Great Britain was made uniform as to that rule. Therefore, the Codifiers, in having adopted that rule had done well, and it ought not to be disturbed.
Some Hon. Members—Hear, hear.
George-Étienne Cartier [Montreal East, Attorney-General East]—He would proceed to notice the objection of the member for Hochelaga [Antoine-Aimé Dorion] respecting the tradition in regard to real estate. He was under the impression that, by the amendment suggested by the Commissioners there would be a conflicting rule in regard to the tradition of real estate and the tradition of mining rights or lands. There was no such thing in the amendment. The Commissioners adopted a proper rule as to the sale of real estate, that the purchasers who obtained registration of the title was the one to be preferred. The member for Hochelaga [Antoine-Aimé Dorion] had quoted the statute on mining rights passed, five or six years ago. But the very preamble of that act was to do away with tradition by sale of mining rights. So it would be seen, on looking into the matter, that there was no conflict between those two portions of the work of the Codifiers. If, however, there was anything dubious in the meaning of the clauses or principles proposed, the Codifiers would have to go over the work again and correct every article that might be affected by any of these amendments, and everything of a conflicting nature could be amended.
He would now come to another of the objections of the member for Hochelaga [Antoine-Aimé Dorion], that relating to the pine comminatoire. We had adopted the system, providing that the penal clauses of a contract itself—a principle which we took from the existing French law. He had legal experience in this matter, and had found that people hardly ever looked on those penal clauses as merely nominal, and very frequently he had much difficult in explaining that this was the case, and that the actual damage resulting from non-performance of contract would have to be established in order to receive damages. Consequently, the public could experiences no surprise nor inconvenience in the adoption of this feature. In making the penal clauses a part of the contract we had only done what Codifiers everywhere did on this subject.
In regard to another of the objections urged by the hon. member for Hochelaga [Antoine-Aimé Dorion], it must be observed that it was an advantage of our law that a man had a right to give a lien upon his land in favor of his creditors. Well, if that montage debtor wished to go beyond that, or to sell his property to his creditor, he might do it in the form of a vente a remore. Well, the Codifiers had applied to the contract the same rule they had applied all through— that is to say, the consent of parties should be the rule everywhere. Then an objection was taken to the clause respecting wills and notarial deeds, and the relationship or otherwise of the witnesses in regard to both kinds.
Antoine-Aimé Dorion [Hochelaga] said his objection was that an alien could be a witness to a will as well as a notary.
George-Étienne Cartier [Montreal East, Attorney-General East] said that as respects other notarial deeds than wills, a notary could do the work with only one witness, instead of two. The Codifiers had suggested this feature. As to the relationship of the notary, he (Mr. C.) would answer that exception.
Antoine-Aimé Dorion [Hochelaga] said he not object that aliens should be witnesses to an ordinary deed.
George-Étienne Cartier [Montreal East, Attorney-General East] said that as to the question of relationship raised in the hon. gentleman’s speech, the Codifiers took the rule as it was.
Antoine-Aimé Dorion [Hochelaga] said the present law was taken from an ordinance of a very great age.
George-Étienne Cartier [Montreal East, Attorney-General East] observed that when parties making wills were in good health, they could easily procure plenty of witnesses, or comply with the law on this subject, but if a man happened to be suddenly taken with sickness, in a hotel, and being desirous of making his will, had not time to select this witnesses, it mattered not whether the witness was an alien or not, he could answer the purpose. That was the principle upon which the Codifiers suggested that an alien might be a witness to a will suddenly made. But this feature was not intended to apply to ordinary contracts in respect of which the circumstances were different.
Before the Committee he (Mr. C.) had gone the length of advocating that there should be no witnesses at all, being willing to rely on the good faith of the notary, but he did not expect to carry all his views and accepted the present proposition. The hon. member for Hochelaga [Antoine-Aimé Dorion], in alluding to the anomalies of the Code, pointed out that of a cure not being able to take a will. It was proposed at present, however, that this power should not be granted to any cures except those in the district of Gaspé, where there might be no notary.
Antoine-Aimé Dorion [Hochelaga] did not object to that.
George-Étienne Cartier [Montreal East, Attorney-General East]—In this matter the Codifiers were not to blame, having taken the Code Napoleon as it is. He would now notice the hon. gentleman’s remarks on the law of entail. He did not agree with that gentleman in thinking it was wrong to make provision for the future family. If there was anything to encourage and induce a man to be sober and industrious and provident, it was the ability the law conferred upon him to provide for those of his offspring who might need assistance. The same degrees of entail adopted by the French Codification Commissioners on the accession of Louis the Eighteenth to the Throne had been adopted by our Codifiers. He thought they had done wisely in the matter; because it was at their suggestion the Committee had adopted the French law and the Roman law in this particular, which was also the law of the land. The member for Hochelaga [Antoine-Aimé Dorion] only found fault with the present law of dower in favor of the wife.
Antoine-Aimé Dorion [Hochelaga]—The hon. gentleman does not understand me. I meant the legal dower.
George-Étienne Cartier [Montreal East, Attorney-General East]—Well, it was the same thing. What would a dower be if it was not legal? Was the hon. member not aware that more than half of the marrying community in Lower Canada make no arrangement of this kind at all, but merely trust in this matter to the law of the land. Well, if you ought also to abolish the law that protected the woman and the minor, and those not in a position to make contracts for their own protection.
Some Hon. Members—Hear, hear.
George-Étienne Cartier [Montreal East, Attorney-General East]—The Codifiers had a good rule—namely, that when any property was subject to legal dower there ought to be a registration of such property; otherwise that right of dower in regard to a third party could not confer a title if not registered. If a man wanting a property, on going to the Registrar found there was no claim of dower in connection with it, he could buy and obtain a good title. Abolishing the legal dower meant that every young person entering the married state would have to make a civil contract in settlement of property, which would entail inconvenience in Lower Canada, where not one third of the young persons make any settlement of the kind.
The hon. member for Hochelaga (Mr. Dorion) also found fault with another disposition— that which related to gages in so far as respected the right of any party who held a gage to sell it at the expiration of the allotted time. Now in regard to the matter the framers of the provision had only applied to it the same rule which had been applied to conventions throughout. He also found fault with the drafting of wills and the numerous forms of wills— finding it strange that the notary who receives a will should be surrounded by such great formalities while the holograph will was so extremely simple. There was nothing whatever in the objection, and a little consideration would show that the Codificators had taken the correct view of the matter and adopted the proper course.
He (Mr. Cartier) thought he had gone through all the objections stated, but he would be most happy to reply to the best of his ability to any others that might be advanced. Before sitting down, however, he would advert to the suggestions of the hon. member for Brome (Mr. Dunkin.) That hon. gentleman had alluded to one or two matters which were worthy of some consideration—for instance with respect to the delay which he believed should be allowed to elapse between the promulgation of the Code and its coming into force.
He thought, however, his hon. friend would find that, by the formalities which were required in order to bring the Code into force a sufficient amount of delay would be obtained. For instance, the Codificators— it should be borne in mind—would have to incorporate any amendments which might be made, with their work, after which they should make a report to His Excellency the Governor-General [Viscount Monck] and then deposit the original. Under these circumstances he did not think there could be any well grounded fear of undue haste. On the contrary he considered there would be sufficient delay. After all there would be less change in the law of the land than was sometime effected by means of a single act of Parliament which came into effect the moment it was sanctioned without delay or formality. The honourable member for Brome (Mr. Dunkin) as an old member of the House must know this and appreciate the strength of the argument.
He (Mr. Cartier) remembered, by the way, that the hon. member for Verchères (Mr. Geoffrion) raised the objection that, notwithstanding the laws relating to the loan of money, a lender might, by the introduction into a contract of a penal clause containing an usurious obligation exact any rate whatever for the loan, after the expiration of the delay—in virtue of the proposed enactment relative to the clause comminatoire. The hon. gentleman, however, was in error. This would not be the case, inasmuch as the distinction between the nature of dommages civvies and that of interest on money which related to the supposed case he had urged. The hon. gentleman would, on making an application of the rule, at once see the difference.
Félix Geoffrion [Verchères] said that what he observed was that if the Code, with the proposed amendment was adopted, a party could stipulate, by means of a penal clause, that if after the expiration of the term of the contract, the obligation were not fulfilled, the other contracting party might not be compelled to pay so much per day, and that by this means an usurious rate would be exacted. Under the change proposed, such a claim would be well founded in law.
George-Étienne Cartier [Montreal East, Attorney-General East] explained that, in his opinion, and according to the spirit of the law, and the clause in question, as he interpreted it, the hon. member’s objection was not founded, inasmuch as the provision he referred to could have reference to loans of money. The hon. gentleman again remark that he thought he had adverted to all points upon which incidental discussion had arisen, but he would be quite prepared to give any further explanations which might be needed.
Christopher Dunkin [Brome] reminded the Hon. Attorney General [George-Étienne Cartier] of the provision relating to civil death.
George-Étienne Cartier [Montreal East, Attorney-General East] would explain. The hon. member for Hochelaga had referred to the civil rights of members of certain religious corporations. Now the status of certain corporations were established or had their entity by law, or rather by treaty, and we could not touch them. A question had been raised before the Committee as to whether those Nuns who were regularly cloistered were civilly dead or not. Two Commissioners maintained that they were civilly dead, but the other held that it was but civil incapacity. There were but four of these institutions mentioned in the terms of cession of this country, after the conquest. The difference of opinion had, however, been reconciled, and would be found in the article suggested in the amendment respecting this subject, which embodied the thirty-second article of capitulation of Montreal.
Under these circumstances, no new corporation of the same kind could be established except by authority of Act of Parliament. No fears need, therefore, be entertained on this head. At the same time, it should be borne in mind that if we were to do away with the civil disabilities in the four communities in question, we should give rise to many difficulties, and create a vast deal of litigation. If there were any other points upon which information was sought he (Mr. Cartier) was ready to reply, inasmuch as he was good for two hours more.
Some Hon. Members—Hear, hear, and laughter.
Henri Joly [Lotbinière] said he wished to make some practical objection to the provision relative to wills. He did not, however, wish to have the matter mixed up with the remainder of the Code, and he should therefore take an opportunity of telling the Hon. Attorney General [George-Étienne Cartier] the nature of his opinions on the subject.
Christopher Dunkin [Brome] said he would study the clauses relative to the subject of civil death referred to by the Hon. Attorney General East [George-Étienne Cartier], and he would not bring the matter up again unless, after careful consideration, he found it to be his duty, under which circumstances he would not shrink from it. He would take an opportunity of conferring with the Hon. Attorney General East [George-Étienne Cartier], if the hon. gentlemen would allow him.
George-Étienne Cartier [Montreal East, Attorney-General East]—I shall be most happy.
Christopher Dunkin [Brome] repeated that he would not bring the matter up unless he considered it necessary to do so.
John Scoble [Elgin West] said that after the remarks made by his hon. friend the member for Brome (Mr. Dunkin) he would not trouble the House with any comments on this exceedingly important part of the subject, as he might otherwise have done. He considered it a matter of exceeding great importance, and he was glad to observe from the temper of the House that it was fully appreciated, and would be maturely considered.
George-Étienne Cartier [Montreal East, Attorney-General East] said the course he proposed to pursue was to ask that the concurrence be voted at present without any amendment; and that the third reading should come up on Thursday, when the amendments could be proposed. He would ask any hon. gentleman who intended proposing any amendment to let him have communication of it a day or two before—say on Tuesday or Wednesday.
Some Hon. Members—Hear, hear.
Antoine-Aimé Dorion [Hochelaga] thought that the course proposed would be a most convenient mode of proceeding. At the same time he thought it would be well that hon. gentlemen should now state the nature or purpose of any amendment they proposed to make.
George-Étienne Cartier [Montreal East, Attorney-General East] said he concurred in the latter suggestion of the hon. member for Hochelaga [Antoine-Aimé Dorion].
Antoine-Aimé Dorion [Hochelaga] said he did not think he would propose any amendments himself; but he would take this opportunity of urging most earnestly upon the hon. gentleman the propriety of uniformity between the French and English wills. The formalities according to the former system were in his (Mr. Dorion’s) opinion far too great and cumbrous. The English system was exceedingly simple and devoid of formalities. He did not see why there should be such formalities as to cause difficulty and encumbrance.
Christopher Dunkin [Brome] said it was notorious that very many cautious professional men always advised their clients not to go to notaries for the execution of their wills, inasmuch as there was no knowing where the litigation might end in the case of a notarial will.
Some Hon. Members—Hear, hear, and laughter.
Christopher Dunkin [Brome]—He did not see, however, why the matter should not be so placed as to give the notarial system a fair trial.
Henri Joly [Lotbinière] said he would explain as brief as possible the nature of his objection and the amendment he proposed to make. The point involved therein was not personal to himself but to other parties, friends and clients of his own; and he might add that in his professional capacity he had become well possessed of the facts of the case. It was an exceedingly important matter in its bearings, and he therefore felt it was but might he should discharge his duty. The case in which the point to which he referred arose, was now pending. The will was contested, and among other grounds alleged by the contesting parties, it was urged that it had not been dictated, according to the law, in the presence of two notaries. It was, he might here remark—as had been already stated incidentally in the course of the present discussion—very true that notaries were invested with great powers. He did not know of any public officer in England or in Upper Canada who possessed such powers as the Lower Canadian notary. He at once stamped the deed passing through his hands with the cast of authenticity, and no further formality was needed in order to prove its genuine character. A will, according to the French law in Lower Canada, was drawn before two notaries, and did not require to be proved afterwards as the English system required.
Under the latter, all the formalities came after death. But the notarial will came into force at once, after death, without any proof—being so great he (Mr. Joly) held it was only right, and he believed the House would agree with him, that the forms required under the system should be accurately defined, clearly understood, and strictly followed—much more so than under the English system, inasmuch as there was formality required after death. Now what has happened in the case to which he adverted to was this—one of the parties pleaded that the will had not been drawn according to law, and dictated in the presence of two notaries. On the other hand, the universal legatee contended that the legal requirement had been fulfilled. The facts in the case having been established, the issue turned altogether upon the correct legal interpretation of the term “dictate.” If the law really meant that two notaries should be present at the dictation of the will, then it was important in the extreme that the fact should be defined and understood beyond the possibility of a doubt.
The point, however, upon which the case turned was the meaning of the word “dictate.” Did it mean that the presence of the two persons to whom the will was dictated was absolutely required, or did it not? The Superior Court, by its judgement, answered the question in the affirmative, holding that both notaries must be actually present at the dictation. On the case coming up in appeal before the five judges on the Court of Queen’s Bench, it was decided by two against three that the presence of two notaries was not required.—thus shewing in the true sense of the expression “the glorious uncertainty of the law.” This matter, he repeated, was most important, inasmuch as there was an immense number of people in Lower Canada concerned in it. The position of the questions as regarded the decision of the Courts of law was just this, that three judges—one in the Superior Court and two in the Court of Queen’s Bench—have held that the presence of the two notaries to whom the will is dictated is absolutely necessary, while the other three judges of the Court of Queen’s Bench have held that this formality was unnecessary.
The case was now before Her Majesty’s Privy Council. The Lords of the Privy Council would naturally turn, amid the mass of authorities, to the Civil Code of Lower Canada in order to find the true interpretation of the word “dictate,” according to the meaning of our law. This being the case, he had certainly not overrated the importance of a clear and indisputable definition of the word.—The hon. gentleman then quoted what had been said by the Codifiers on the subject, which was to the effect that the presence of two notaries was required. During last session a Committee of this House had been appointed to revise the Code. Looking at the proceeding of this Committee the found that on 6th March, the article of the Code in question was considered, and it was proposed that this article, upon which the rights of the parties he represented were based should be swept away, and that another should be substituted.
The hon. gentleman read the proposed amendment on page 47 of the resolutions, which, he contended, rendered the true meaning exceedingly vague, inasmuch as it spoke of the presence of two notaries at the signing of the will, but not at the dictation. He protested against the next paragraph, affecting to explain the meaning of the word “dictate” being allowed to remain in the resolutions, and the purport of his amendment was to strike it out. If it were allowed to remain in, he believed his clients would be ruined. If they wished to change the law, then let it be done— although he believed we should stand by the old French law; but, he repeated, if they wished to change the existing law, let it not be done by citing the language of the law, while affecting to explain it. Such a course had a double effect, and could only be compared to the recoil of a gun. It should not be attempted to give to the word “dictate” a meaning it was never intended to have. The hon. gentleman concluded by reading his amendment.
George-Étienne Cartier [Montreal East, Attorney-General East] begged the hon. gentleman to communicate the amendment to him on Tuesday or Wednesday next.
In the course of some discussion of a conversational nature which followed, and in which Hon. Messrs. Dorion and Cartier took part—
George-Étienne Cartier [Montreal East, Attorney-General East] said there was a clause at the end of the Code setting forth that amendments should not apply—not only to cases now pending, but to any rights existing at the time of its promulgation.
François Evanturel [Quebec County] said he was sure his hon. friend (Mr. J.) did not intend to misstate facts, and he would, therefore, take the liberty of correcting an error into which he had fallen. The hon. member for Lotbinière (Mr. Joly) had stated that in the question which had arisen, there were three judges on one side and three on the other. Now, it was important the facts should be known, and he therefore begged to remind his hon. friend that the late Hon. Jonathan Sewell, one of our greatest Judges, had, in 1829, given his opinion on the question. A matter of this kind certainly should not be forgotten.
Henri Joly [Lotbinière] said that what he had stated was that six judges, three on each side, had given their opinions in this case, and he only spoke the truth in so doing. As this case only commenced eighteen months ago, Chief Justice Sewell, who died 20 or 25 years ago, could certainly not have had anything to do with it.
Some Hon. Members—Laughter.
François Evanturel [Quebec County]—Oh, you know very well what I mean.
Some Hon. Members—Hear, hear, and laughter.
The report of the Committee of the Whole on the Code was then concurred in, and the third reading was ordered for Thursday next.
The House then, at eleven p.m., adjourned.