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
The SPEAKER took the Chair at three o’clock.
Hon. Mr. McDOUGALL brought down the following returns:
Return of expenses connected with the Dublin International Exhibition.
Return of votes cast at last election for the Board of Agriculture.
Return of certain information asked for respecting Military Schools.
By Hon. Mr. McDOUGALL—Bill to enable the trustees of St. Andrew’s Church, in the township of Brighton, to dispose of certain lands.
By Mr. T.C WALLBRIDGE—Bill to authorize the Law Lociety [sic] of Upper Canada to admit ——— as a barrister.
By Col. HAULTAIN—Bill to continue for a limited time the act to enable the employment of military pensioners and others as a local police force.
GRAND TRUNK RAILWAY STOCK.
Mr. PARKER moved for the appointment of a Select Committee to enquire into and report upon the condition and sufficiency of the Railway Stock of the Grand Trunk Railway, and of the various Branch Railways owned or worked by the said Company; and the comparative rates of Railway freight charged by the said Company on merchandise passing through Canada from and to foreign places, and from foreign places to certain points in Canada, and also on the same class of goods when carried from and to Canadian stations, with power to send for persons, papers and records.
Hon. J. A. MACDONALD was understood to say that at this late period of the session no good could be expected to be obtained by the appointment of a Committee. Next session, however, there would be no objection whatever to the appointment of a Committee to enquire into the condition of all the railways. (Hear, hear.)
Mr. PARKER expressed himself satisfied with the view ennunciated [sic] by the Government, and would, under these circumstances, withdraw his motion. (Hear, hear, and laughter)
Mr. STIRTON (who was indistinctly heard), was understood to express his astonishment that this important motion, of which notice had been given last session, was allowed to stand; and that, again, this session, it should have been allowed to remain over so long that the end of the session should almost have been reached, and that postponement should again become necessary.
Mr. GIBBS, as seconder of the motion, said that a good deal of the information he desired to have was to be found in the report of Mr. Brydges before the Railway Committee in connexion with the Amalgamation Bill. He was glad to learn that the condition of the Grand Trunk Railway was very much improved. The Company had fifteen or twenty locomotives more than last year, and the number of cars had also been largely increased (Hear, hear.)
But that which was far more important than the conduct of the Grand Trunk in the past was its policy in the future. It was therefore with particular pleasure he read the statement made at the last general meeting of the Company, in London, to the effect that it was intended, more than hitherto to cultivate local traffic. (Hear, hear) He was, he repeated, glad to hear this, and he was sure the country generally would be glad to hear it. (Hear, hear)
If an increase in the rolling stock were necessary last season, it was still more necessary this season. He hoped, sincerely, that the policy of the Grand Trunk Railway Company would, in future, be such as to make the interests of the country identical with their own. (Hear, hear.)
If they did so, they would not have so many enemies in this House. He trusted they would adhere to a course calculated to develope the resources of Canada instead of those of the Great West at the expense of Canada.
After some further conversation the matter dropped.
GRAND RIVER NAVIGATION COMPANY.
Mr. THOMPSON moved for an Address to His Excellency the Governor-General, praying that he will be pleased to cause to be laid before this House, all reports made by the Indian Department, and all other documents or letters that may have passed between the Corporation of the Town of Brantford and the Government, relating to the Grand River Navigation Company during the period said Company has been under the control and management of the said Corporation.—Carried
Mr. ARCHAMBAULT moved for an address to His Excellency the Governor-General for copies of all claims and accounts of F.G. Johnson, Esquire, Advocate, Queen’s Counsel, (and now one of the Honorable the Judges of the Superior Court for Lower Canada), together with those of all other Advocates and Attorneys against the Government of the Province, within the five years ending on the 1st of August, 1865, for their services as Advocates and representing the Crown, in prosecutions, proceedings and criminal suits before the Court of Queen’s Bench (on the Crown side), in and for the several districts of Montreal, Three Rivers, Aylmer, Terrebonne and Joliette; also for copies of all statements, reports, certificates of proceedings and acts therewith connected; also for copies of all such statements and reports whatsoever made in each case by the Clerks of the Crown or of the Peace, or by the Clerks of the Crown and Peace for each of the said districts, and specially for copies of all statements or reports relating thereto, made by the said Clerk respectively in virtue of sub-section six of section one of chapter three of the Consolidated Statutes for Lower Canada; also for copies of all objections, reductions or abatements, writings, reports, correspondence and documents relating thereto, together with a statement of the costs, fees, or sums refused, rejected, or granted, approved, and paid in each case upon each of the said accounts and claims, and in relation to each of the said accounts and claims.—Carried.
Mr. A. MACKENZIE (Lambton) moved for the appointment of a Select Committee to enquire into the reason why the officials of the Buffalo and Lake Huron and Grand Trunk Railways have not regarded or obeyed the order of this House made on the 25th day of January last, relative to certain statements required for the public convenience, with power to send for persons and papers and procure such information as may be desirable—and report with all convenient speed.—Carried.
THIRD READINGS OF PUBLIC BILLS.
Bill to amend Chapter 75 of the Consolidated Statutes for Upper Canada, intituled “an Act respecting Master and Servant.” — Mr. WRIGHT.
Bill to amend the Act respecting abuses prejudicial to Agriculture, chap. 26 of the Consolidated Statutes for Lower Canada.—Mr. BELLEROSE.
Bill to amend the Act respecting the Notarial Profession—Mr. ARCHAMBAULT.
Bill to amend the Act 27 Victoria, cap. 11, respecting the collection of School Rates.—Hon. Mr. LAFRAMBOISE.
Bill to secure to wives the benefit of assurance on the lives of their husbands.—Mr. MUNRO.
WRIGHTS AND MEASURES.
Mr. BOURASSA moved the third reading of the bills to amend chapter 53, Consolidated Statutes of Canada, relative to weights and measures.
Some discussion arose on a proposed amendment to the bill, which resulted in its being allowed to remain over for next day.
INSOLVENCY ACT, 1864.
On motion of Hon. Mr. ABBOTT, the House went into Committee on the bill to amend the Insolvency Act of 1864 (and amendments)—Mr. CHAMBERS in the chair.
A lengthy discussion arose in Committee. Finally the bill was reported from Committee with amendment.
ADMISSION TO PRACTICE.
On motion of Mr. SCATCHERD, the bill to authorise the admission of Henry Hart Coyne, to practice as an Attorney and Solicitor in the Courts of Law and Equity in Upper Canada, was read a second time, and referred to Committee.
It being six o’clock, the Speaker left the chair.
After the recess—
ST. HYACINTHE ELECTION.
Mr. CARON presented the final report of the St. Hyacinthe Election Committee, declaring the sitting member, Remi Raymond, duly elected, and that neither the petition nor the defence are frivolous or vexatious. The Committee further reported that they regretted to be compelled to direct attention to the illegal conduct of certain persons—in the first place, to that of a member of the Legislative Council, who recommended voters to drive to the polls, took lists of parties so driving voters and paid them, and kept two houses of public entertainment open during the polling days; and in the second place, to the conduct of a member of the Legislative Assembly, who had also acted illegally. (Hear, hear.)
Mr. J.B.R. DORION (Arthabaska) said that the motion he was about to make bad for its object the laying upon the table a report of all the proceedings of the Committee on the St. Hyacinthe contested election. The Committee had unanimously decided this morning to report the whole proceedings, but this happened to be contrary to the statute and could not be done, and only certain parts of the proceedings could therefore accompany the final report.
Hon. Mr. CAUCHON said if he understood rightly, the report, as it had been brought down was incomplete, because there was a question as to the conduct of a certain member of the Upper House and a certain member of the Lower House; but at the same time there was another matter as to the question of the lists, that had not been read. This should form part of the report.
Mr. J.B.E. DORION (Arthabaska) said that his matter could not be submitted with the report, because it had been adopted unanimously. Only these resolutions on which a division took place could be reported. That was the reason why he moved that all the proceedings of the Committee should be laid before the House so that we might know everything.
Hon. Mr. DORION said this was a more serious matter than the Hon Attorney-General East appeared to think. Here we had a committee reporting gross bribery and corruption at the St. Hyacinthe election by a member of the Upper House and that a member of this House had also acted illegally. He would, therefore, like to know what action the Government intended to take in the matter.
Hon. Mr. CARTER—Wait till the papers come down. The hon. gentleman’s brother had moved for all the papers. We should wait till his object was attained.
Hon. Mr. DORION said that the hon. member for Arthabaska had a perfect right to make the motion he had made, and it was [illegible] right he should have the information respecting charges against members of the Upper and Lower Houses of bribing and corrupting electors to pack the House with their favorites. We had a report respecting corruption of the grossest kind—that a member of the Upper House had taken a list of the electors and caused them to be driven to the polls, and kept open two public houses at his own expense. The Hon. Attorney-General East should see that the privileges of this House were not infringed, and yet he got up and made a paltry objection to the motion—that the Chairman of the Committee should have submitted it instead of one of its members. But that hon. gentleman had said nothing as to the facts in this matter, but that he would answer them in time. We were entitled to ask if the standing orders of tis House against bribery and corruption were a dead letter or not?
Hon. J. A. MACDONALD said that when a report of this kind, imputing gross bribery and corruption to members of the Legislature, it was quite natural for the Attorney-General East to expect that the ordinary course should be followed in the Chairman’s taking action in the matter, instead of one of the private members. He really thought it was premature in the hon. member for Hochelaga (Mr. Dorion) to ask what the Government would do on a report they had never seen, and of which, it appeared, only a portion had been read. Surely, when the hon. member for Arthabaska had moved for all the papers, we should be allowed to see them before being asked what action we would take. He (Mr. Macdonald) had no doubt that all the documents would be laid before the House as early as possible, and he believed the Government would direct attention to the matter, and take action upon it as early as they could. It was a matter that should, however, be considered with all due deliberation, which was all the more necessary on account of the importance of the resolutions and the unanimity of the Committee in the matter. (Hear, hear.)
Hon. Mr. ALLEYN was understood to urge that it was but right all the proceedings should be brought down before asking the Government what course they intended to take in the matter. At the same time, he thought the Committee should have named the members of the Legislature to whom reference was made.
After some further discussion,
Mr. J. B. E. DORION (Arthabaska) moved that the proceedings of the Committee, together with the evidence, be printed.—Carried.
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.
On motion of Hon. Mr. CARTIER the Report of the Committee was received, and the third reading was ordered for Friday.
Hon. Mr. HOLTON would like to know the order of business for to-morrow—whether the Hon. Attorney General East would move the third reading of his bill before proceeding with the other business.
Hon. Mr. CARTIER said he would move for the third reading in the course of the afternoon.
Hon. Mr. HOLTON—Before going into Committee of Supply?
Hon. Mr. CARTIER—I will move it in the course of the afternoon.
TITLES TO REAL ESTATE, U. C.
On motion of Hon. J. A. MACDONALD, the bill for quieting certain titles to real estate in Upper Canada was read a third time and passed.
RIGHTS OF ALIENS.
On motion of Hon. J. A. MACDONALD, the bill to enable aliens to transmit and take real property in this Province, was read a third time and passed.
JUSTICES OF THE PEACE.
On motion of Hon. Mr. COCKBURN, the bill in reference to qualifications of Justices of the Peace was read a second time and referred.
The House then, at 20 minutes past 12, adjourned.