Province of Canada, Legislative Assembly, 8th Parl, 4th Sess (31 August 1865)
By: Province of Canada (Parliament), Morning Chronicle
Citation: “Provincial Parliament. Legislative Assembly. Thursday, Aug. 31st” [Quebec] Morning Chronicle (1 September 1865).
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Thursday, August 31st
Civil Code of Lower Canada
On the order of the day being called for the third reading of the bill intituled an Act respecting the Civil Code of Lower Canada—
George-Étienne Cartier [Montreal East, Attorney-General East] said that, as he had already stated when the matter came up at its last stage, he had no objection that the House should again go into Committee of the Whole, as that any necessary and desirable amendments, which were required to be made could be freely discussed. Some important matters in connexion with the proposed Code had been discussed the other evening. For instance, we had the remarks of the hon. members for Lotbiniere (Mr. Joly) and Quebec County (Mr. Evanturel), who criticized the clause relative to wills—or rather he should say the member for Lotbiniere [Henri Joly], for his hon. friend from Quebec had not indulged in any adverse criticism. When the provision of the Code, relative to formal and solemn testaments and the redaction of the same was discussed in Committee, due enquiry had been made into all the difficulties which might possibly arise in connexion with that question. The codificators had proposed, as was soon, to make some change in the redaction; and his (Mr. Cartier’s) opinion—after considering the report of the Committee, and noting all the objections made, and the discussions which had arisen thereupon, as well as the debate in Committee of the Whole—was that the very best thing that could be done was to rid the solemn will and testament of all useless and unnecessary formalities by which it was embarrassed, and to adopt rather the form in use in England and Upper Canada.
Some Hon. Members—Hear, hear.
George-Étienne Cartier [Montreal East, Attorney-General East]—The project now before the House explained as well the form as the redaction. He was aware that there was an important action at law pending in one of our Courts which turned upon this point. Now, he need hardly say that there was no desire on his part to do anything tending to interfere with or prejudice in any way the important case in question, or any other case which might now be pending. He would, however declare formally and explicitly that he did not wish the Code to interfere in any way with any actual will or contract. He would be exceedingly sorry that it should have such an effect. There questions which had arisen before the existence of the Code must, of course, be decided by the laws in force before the Code.
Some Hon. Members—Hear, hear.
George-Étienne Cartier [Montreal East, Attorney-General East]—There need not, therefore, be any cause for apprehension or uneasiness. Neither the Codificators nor himself desired to disturb the past. They only sought to legislate for the future. He proposed to cast aside all that there was in the project about the dictation or nomination of the will, and he thought the change would be most beneficial. He repeated, however, that it was not intended to legislate for the past but for the future. Another article in the project of Code under consideration had for its object to exclude women from acting as witnesses of wills, as they were allowed to do, according to the law of England and Upper Canada. He did not see that Lower Canada should be an exception to those countries in this respect, inasmuch as it might have the effect of doing Lower Canada an injury, by being distasteful to persons coming here from places in which the other rule held good, and the English system was in practice. When the House went into Committee he would therefore move to amend the project so as to provide that women might act as witnesses to wills. On another point too—namely, with respect to the degrees of relationship of witnesses to wills and notarial deeds—representations had been made to him by hon. gentlemen of all origin. He would therefore move that the bill be not now read a third time, but that it be sent back to Committee of the Whole. He might add, however, that he was resolved that no time should be lost in the matter, and he would consequently move, upon the Committee reporting, that the report be received to-night, and that the bill be then read a third time.
Some Hon. Members—Hear, hear.
Antoine-Aimé Dorion [Hochelaga] said he approved of the idea suggested by the hon. gentleman of going into Committee of the Whole; but he certainly did not consider it right that this bill should be hurried through a third reading to-night.
George-Étienne Cartier [Montreal East, Attorney-General East] said that of course if the hon. gentleman wished to have the third reading postponed until to-morrow evening, he (Mr. Cartier) had no objection.
The motion was carried, and the House went into Committee, Henri Taschereau [Beauce] in the chair.
Félix Geoffrion [Verchères] said he wished to have the 20th resolution, and 237th clause of the Code so amended as to allow the notary to receive actes as formerly. One of the great inconveniences of the system proposed would be to compel notaries, in the rural districts particularly, to put themselves to great inconvenience to obtain witnesses to deeds. It might even be exceedingly difficult if not altogether impossible for them to do so. There was another point which should be considered which was this—that the proposed change would have the effect of depriving the public of the same guarantee of secrecy which they possessed under the old system.
George-Étienne Cartier [Montreal East, Attorney-General East] said that the present system was certainly as bad as it could be, and required some amendment.
In the course of some discussion—
John Rose [Montreal Centre] thought the House should accept the Code as it stood. No doubt there might be some defects in it, but it was as perfect as such a great work could be. The Government had accepted the responsibility of it, and he thought under these circumstances that the House should pass it in the shape in which it was at present.
Louis Archambeault [L’Assomption] moved
To strike out the 20th resolution and the 227th clause, and to provide that an acte received by one notary only should be valid, subject to the following article.
This, on some discussion, was lost on a division.
George-Étienne Cartier [Montreal East, Attorney-General East] next referred to that part of the Civil Code respecting civil death, and said he thought such an amendment would be made as to meet all possible objections. As already stated, when the matter was discussed, one of the Codifiers objected to the age of the term “civil death,” and argued that it should, instead, be civil disability and incapacity. As he (Mr. C.) had explained on a former occasion, there were only four communities actually wit in the bearing of this article, and there could be no mistake whatever about its application. It was urged by some that the article might have a very undesirable effect, as if, for instance, a member of any of those four religious communities were to turn Protestant. Such a thing might happen, and it was feared that a very serious question might afterwards arise as to alleged civil disability. He had no objection, whatever, so to amend the article as to provide it should affect those professing the Catholic religion only. The hon. gentleman read a resolution to that effect.
Antoine-Aimé Dorion [Hochelaga] reminded the hon. gentleman that there were other communities in the country, the members of which made solemn and perpetual vows, just as well as the four to which he had just alluded.
George-Étienne Cartier [Montreal East, Attorney-General East]—They were not, however, recognized by the law of the treaty.
Christopher Dunkin [Brome] said the amendment, at any rate, would do no harm. It left the question entirely free and unembarrassed for the decision of the Courts, in case any question should arise.
Antoine-Aimé Dorion [Hochelaga] said the Code, in fact, decided nothing. If, for instance, a lady belonging to one of those communities got married, was her marriage to be considered null or valid? Were the children, the issue of such marriage, to be considered legitimate, or illegitimate? Supposing she were abandoned by her husband, would she have any recourse in law?
George-Étienne Cartier [Montreal East, Attorney-General East] said that was not at all the question to be decided now.
The amendment was then carried.
On the resolution 123, relative to the power of parties contracting a second marriage, it disposed of their property by contract, without reference to the issue of the first marriage—
George-Étienne Cartier [Montreal East, Attorney-General East] contended that the desire was to allow to the contracting parties full liberty in making their contract or convention. This was the course which had been pursued in reference to a variety of other matters, and it was thought only proper to extend it to this point also.
Félix Geoffrion [Verchères] opposed the principle, and moved, in amendment, that the law should remain as at present in reference to the disposal of property by contract on the occasion of a second marriage.
After some discussion it was understood the amendment would be moved on the third reading of the bill.
The article respecting wills or testaments having been taken up,
George-Étienne Cartier [Montreal East, Attorney-General East] said he proposed to change the clause so as to provide that, in the case of the notarial will received before two notaries, or before one notary and two witnesses, the formality required should be that the testator in their presence should sign or declare that he could not sign it, and that the will should be read in the presence of the other notary, or in presence of the two witnesses.
Antoine-Aimé Dorion [Hochelaga] contended there was a gross contradiction. Why should a notary and two witnesses be needed in the notarial or authentic form of will, when two witnesses only were required for the English or holograph form?
George-Étienne Cartier [Montreal East, Attorney-General East] said there was no contradiction at all. If a will was not clothed with the character of validity, according to the authentic form, it would possess authenticity by the other form as soon as it was verified. At the same time he desired to remark that the notarial form had many very great advantages which should not be overlooked. The bill drawn by the testator himself in the presence of two witnesses might be lost or mislaid, and might not be found after the death of the testator. It occurred not unfrequently that wills of this kind were discovered long after the division of the property; but, with regard to the notarial wills he did not recollect having heard of any case in which the will, according to that form, had been lost. There was certainly a very great advantage in having an acte of so much importance deposited in the hands of a third party.
Antoine-Aimé Dorion [Hochelaga] said that the hon. gentleman was mistaken if he fancied that he (Mr. Dorion) had any desire to deprecate the notarial form of the will. On the contrary, he wished to facilitate that form, by ridding it of those formalities which did not attach to wills made accordingly to the other form. He failed, however, entirely to see why a will should not be made before a notary and one witness.
Some Hon. Members—Hear, hear.
Christopher Dunkin [Brome] said that the will before two notaries or before a notary and two witnesses was an authentic acte of itself. The will made according to the other form would be valid on being verified. He did think, however, that the hon. gentleman would see, on consideration, that it was necessary that the will—which only came into question after the death of the party by whom it was made—should be hedged around with a little more formality than an ordinary deed.
The proposed amendment was carried.
Félix Geoffrion [Verchères], referring to resolution 148, said he did not see that it was correct in principle that the relationship of the witnesses of the testament should, it itself, be an absolute case of nullity.
George-Étienne Cartier [Montreal East, Attorney-General East] said that the hon. gentleman could propose an amendment to-morrow on the third reading.
On the discussion of the next article to which objection was taken—
Antoine-Aimé Dorion [Hochelaga] suggested to strike out that section of the provision which tended to disqualify aliens from being witnesses to notarial deeds. He could not understand why a difference had been made, in this respect, between wills and notarial deeds.
Christopher Dunkin [Brome] said that this was a very important matter indeed. There was a very large number of people, indeed, in the country who were aliens in the eye of the law, and who really did not know it. Some of these people had been many years in this country, and had not the slightest idea that they were in reality aliens. Indeed, he could not state positively, but it was possible that there might be some notaries who were open to this objection.
George-Étienne Cartier [Montreal East, Attorney-General East] said that, in permitting aliens to witness wills, regard was had to any emergency which might arise in which it might, perhaps, be impossible to procure other than aliens at witnesses. For instance, suppose a person travelling in some remote part of the country, was taken suddenly and dangerously ill. He might find none around him except Americans, Frenchmen or Germans, or some other foreigners. In view of the possibility of such circumstances, it was necessary that aliens should be qualified as witnesses in respect to wills. He had no objection whatever to extend this privilege to aliens so far as ordinary notarial deeds were concerned. The hon. gentleman (Mr. Dorion), however, would not attain his object by striking out the work alien in the clause he indicated, as he proposed to do. The proper view in order to accomplish his object would be to make an addition to a clause elsewhere.
Antoine-Aimé Dorion [Hochelaga] asked whether the Hon. Attorney General East [George-Étienne Cartier] was willing that this should be done.
George-Étienne Cartier [Montreal East, Attorney-General East] was understood to reply in the affirmative.
On the next resolution—
George-Étienne Cartier [Montreal East, Attorney-General East] said that with regard to wills drawn according to the English form, he desired, as he had stated at the outset, to move an amendment to the effect that females should be held as qualified to act as witnesses.
The amendment was carried.
On the next resolution—
Félix Geoffrion [Verchères] said that, with respect to the registration of hypothecs, he was of opinion that the hypothec resulting from mutual assurance liabilities should be registered. The tact of a hypothec arising from such a cause being in existence could not be ascertained, inasmuch as its origin was not, so to speak, a public transaction. As a matter of information, charges of this nature should be registered. There was no other way of being able to discover their existence. It was the same with regard to the charge arising from the shares due toward the construction or repairs of churches or parsonage-houses. How was the purchaser to know of the existence of such a charge?
An Hon. Member—From the cure who is the custodian of the role der partition.
Félix Geoffrion [Verchères]—But the property might have passed out of the hands of the proprietor during whose possession the liability had originated, into the hands of a person of another faith, so that the purchaser might never for a moment imagine there was such a charge on it. Or the intending purchaser being of a different faith might not perhaps care to seek information from the cure who, by the way, was not bound to give it.
Joseph Dufresne [Montcalm] argued that the suggestion of the member for Vercheres (Mr. Geoffrion), if carried into effect, would only entail expense. All necessary publicity and information could be obtained by the law as it stood without amendment.
Félix Geoffrion [Verchères] made a motion to amend the resolution in the sense of his suggestion.
Lost on a division.
Jean-Baptiste Pouliot [Témiscouata] suggested an amendment in the article relative to registration of tutelle by adding the words “in the county.”
After some discussion, however, this was dropped.
Félix Geoffrion [Verchères] moved to amend the provision relative to registration, by adding a few words that registration might be made by means of a summary of the deed or one summary for several deeds.—Carried.
George-Étienne Cartier [Montreal East, Attorney-General East] made a change in the interpretation clause, or provision relative to retroactive effect, so as to render it thoroughly explicit and unmistakeable that, so far as the amendments to the Code were concerned, all contracts and other matters which had originated previous to the Code, should be governed by the laws in force on such points previous to the promulgation of the Code.
Some minor amendments were discussed, but it was understood that the amendments would be printed in time for the third reading.
The Committee then rose and reported the bill.