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Date: 1866-06-08
By: Province of Canada (Parliament)
Citation: Province of Canada, Parliament, Scrapbook Debates, 8th Parl, 5th Sess, 1866 at 1-2.
Other formats: Click here to view the original document (PDF).
Note: All endnotes come from our recent publication, Charles Dumais & Michael Scott (ed.), The Confederation Debates in the Province of Canada (CCF, 2022).

Click here to view the rest of the Province of Canada’s Confederation Debates for 1866.

LEGISLATIVE ASSEMBLY

FRIDAY, June 8, 1866

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia]  said—Instead of introducing the ordinary formal Bill to assert the legislative privilege of the House before taking into consideration His Excellency’s [Viscount Monck] Speech from the Throne[1], the Government has resolved, under the almost unprecedented circumstances in which the Province is placed, to ask the House to consider first that portion of the Speech which refers to the proposed suspension of the Habeas Corpus Act[2]; and secondly, a  measure for extending and applying to Lower Canada the Bill passed in 1838 in Upper Canada for the trial of hostile marauders[3]. The Bill for the suspension of the Habeas Corpus Act is an adaptation of the Bill passed in February last for the suspension of the Act in Ireland[4]. It was read in the House of Commons three times in one sitting and past sub silentio[5], on the responsibility of the government acting on a despatch from the Lord Lieutenant of Ireland [John Wodehouse, 1st Earl of Kimberley], who stated that he would not be responsible for the peace of that country unless the privilege of the rich was suspended. The Bill now to be introduced, which it is proposed shall remain in force for one year, contains two clauses is not contained in the Imperial Act.

One of these clauses provides that the Governor in Council may, within the year, proper and thinks the circumstances of the country will permit, suspend the operation of the Act by proclamation, so that parties under arrest may be tried or hailed, and within the period of one year from the passage of the Act the governor may, by a proclamation put it in force again, if circumstances shall require it. It is to be hoped, and recent events encourage the hope, that there will be no necessity for exercising the power which this measure will confer upon the government but still it is considered necessary that the government should be armed with this power, we use it in case of emergency.

I shall, therefore, ask the House to pass the measure without discussion, and if it is an the other measure our received favourably by the other branches of the Legislature I am authorised to state that His Excellency [Viscount Monck] will be prepared at once to give into them at this sitting and before leaving the building.

Some Hon. Members—Cheers.

Luther Holton [Chateauguay] said the Attorney General West [John A. Macdonald] was slightly in error when he stated that the Bill to which he had referred had passed the House of Commons sub silentio[6] it passed its three stages at one sitting, and the other House immediately after, but there was a debate of an hour or two, at all events, before it passed. Several leading members made speeches of more or less length on the subject.

He (Mr. Holton) had felt that he owed it to the House to rise to say a word, at least in order to show that he did not admit that the precedent which the hon. gentlemen had invoked could be fairly invoked at debarring him or any other hon. gentleman expressing his views on the occasion. He might say, however, that he did not intend to offer this latest obstacle to the views of Government.

Some Hon. Members—Loud cries of hear, hear.

Luther Holton [Chateauguay]—The Attorney General [John A. Macdonald], as he understood him, on behalf of the Government, had reiterated the statement made by Imperial Government on the authority of the Lord Lieutenant of Ireland [John Wodehouse, 1st Earl of Kimberley], that they could not be responsible for the peace of Ireland and less than measure were adopted. He had understood the Attorney General [John A. Macdonald] to say that he and his colleagues could not be responsible for the safety of this country without this measure being passed. If he had rightly understood him to make this statement, then he would say unhesitatingly that it was the duty of every member of this House to strengthen the arm of the executive to the utmost possible extent, bypassing this measure on its immediate passage.

Some Hon. Members—Hear, hear.

Luther Holton [Chateauguay]—And speaking for himself as an independent member of the House he begged to declare that he accepted the statement of the hon. gentleman, and should ascend to the suspension of the rules and the passage of the measure.

Some Hon. Members—Cheers.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] thanked the hon. gentleman for having so readily agreed to the course which government had thought it necessary to take.

The Bill[7] having been read at first and second time,

Jean-Baptiste-Éric Dorion [Drummond & Arthabaska] asked if it would permit the apprehension of persons on the deposition of only a single witness, and if it would apply only to persons taken with arms in their hands, and making actual attempts against the peace of the country?

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] said it would apply to all parties committing the offences contemplated by the Bill, whether subjects of Her Majesty or not, and whether they were foreign invaders or persons aiding and abetting them.

• (p. 2)

Jean-Baptiste-Éric Dorion [Drummond & Arthabaska] having repeated his question asked for other information,

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] said the Bill applied in the first place to those who had been arrested in arms by Her Majesty’s naval or military forces. It would also apply to parties arrested on information under oath, and committed by two justices of the peace for the protection, however, of the rights of the subject, there was a provision not contained in the English Bill, that if parties were committed by warrant, on information under oath, it should be issued by two magistrates one; And further, it provided for the protection of the people, who, in the opinion of the government, might be improperly charged, that if the warrant was not countersigned by a Clerk of the Executive Council within fourteen days, the Bill would not apply. There would be full protection for liberty of the subject in that respect.

Jean-Baptiste-Éric Dorion [Drummond & Arthabaska] said the explanations now given were perfectly satisfactory.

John Smith [Durham East] asked if the Bill would apply to arrests already made?

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] replied that it would.

The Bill was then read a third time and passed.[8]

George-Étienne Cartier [Montreal East, Attorney-General East] asked leave to introduce a Bill to protect the inhabitants of Lower Canada against lawless aggressions from subjects of foreign countries at peace with Her Majesty—after having explained in French the provisions of the measure, in his remarks in English. He said the new Act would very much resemble that in force in Upper Canada which was enacted in 1839[9], and was among the revised Statutes for Upper Canada.

That act now in force in this province would be found at present no doubt, both are wise and useful one, and its provisions respecting invasion, in view of the invasion which has lately been made, would be recognised as most applicable to such enterprises, but in Lower Canada we have not the benefit of such a law, and the measure—the first reading of which he would give in a few minutes—would be one extending to Lower Canada merely, prevailing in Upper Canada on this subject.

He would explain the provisions of the statute in question. By the first clause of the existing law it was provided that if any citizen or subject of a foreign power should be accused of being or continuing in arms in Upper Canada, or trying to levy war against Her Majesty in Upper Canada, committing any felony punishable by death in this Providence, he should be tried before a court martial convened, and assembled according to the militia law.

The 2nd clause provided that if any British subject associated himself with any citizen or subject of a foreign power at peace with Her Majesty, in order to levy war against Her Majesty, or commit any felony an Upper Canada, or should assist in the commission of such offence, he should be subject to trial before a court martial, assemble according to the militia laws of the province.

Then the third provision was the effect that if any citizen or subject of a foreign power at peace with Her Majesty was accused of any of those offences he might be tried in Upper Canada in any court of Oyer and Terminer In any County in Upper Canada as if the offence had been committed in that County. The only changes made in the bill I have now the honour to introduce is merely the omission of the words in the Act of Upper Canada, “Before any court of oyer and Terminer”[10] and the substitution of the words “before the court of Queen’s bench in its criminal jurisdiction in Lower Canada, and a substitute for the word “County” in the existing statute the word “District,” because in Lower Canada criminal law is administered by districts, not by counties.

John Rose [Montreal Centre] had great pleasure in supporting the first reading of this Bill. No doubt could be entertained as to the necessity of the measure, in view of the fact that lawless bands were assembling along the lines for hostile enterprises up on our borders. There could be no doubt, either, that those marauders were informed—by parties in our midst of every move made by the authorities on this side. That information could only be conveyed by parties coming late into the country for the purpose.

There was at present men in Montreal who had sole awful business there, but who passed their time prowling about for such information as might be of use to parties on the other side of the lines. Provisions ought, then, to be made to meet the case of such parties, in the interest of our community. He spoke and no spirit of revenge in this matter. It wasn’t duty we all owed to the defenders of the country to legislate in the matter proposed. Besides being wise as regards the country itself, it would be more humane to the assembling marauders themselves to give them to understand that we considered they did not come here in the character of ordinary belligerents, but in that of pirates.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—No doubt there was a delusion in some quarters that they came here as a delivering army, and should be treated accordingly. We owed it to both our enemies at ourselves to proclaim that the Fenians[11] came here with no qualification to act as soldiers, but as marauders and pirates.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—He hoped the fullest powers would be confirmed on the government in this matter, and that those powers would be promptly and thoroughly exercised.

Some Hon. Members—Cheers.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia], who was very imperfectly heard, was understood to say that the action of the government in requesting such speedy legislation in the premises was an index to their views of the necessity of the case, and of the desirability of applying the earliest remedy for any imperfection of law which might stand in the way of the proper treatment of marauders. The text of the bill itself would, he thought, all that such parties would be regarded as marauders an not soldiers, and must be dealt with accordingly.

Some Hon. Members—Hear, hear.

The Bill was then passed through all its stages, and was sent to the Upper House

The Speaker then communicated to the House the speech delivered by His Excellency [Viscount Monck] in opening Parliament.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] moved

That His Excellency speech be taken into consideration on Monday next.

Carried.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] then moved the usual formal motions about the appointment of Standing Committees, and the printing of the votes and proceedings. The motions were agreed to.

The House then adjourned during pleasure, awaiting the action of the Council send up.

At four o’clock, the House was summoned to the Council Chamber, while His Excellency [Viscount Monck] assented to the Bills.

On their return to their own Chamber, the House on motion of John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] adjourned till Monday, at three o’clock.

ENDNOTES

[1]      Lord Monck, Speech from the Throne, Legislative Council (Jun. 8, 1866), p. 1.

[2]      Habeas Corpus Act 1679 (U.K.). See also Habeas Corpus Act 1862 (U.K.)

[3]      An Act to protect the Inhabitants of this Province against Lawless Aggressions from Subjects of Foreign Countries, at Peace with Her Majesty (Upper Canada, 1838).

[4]      Habeas Corpus was suspended in Ireland in 1866. It had been suspended several times throughout the nineteenth century.

[5]      i.e. “in silence.”

[6]      i.e. “in silence.”

[7]      Bill to authorize the apprehension and detention until the eighth day of June, one thousand eight hundred and sixty-seven, of such persons as shall be suspected of committing acts of hostility or conspiracy against Her Majesty’s person and Government.

[8]      An Act to authorize the apprehension and detention until the eighth day of June, one thousand eight hundred and sixty-seven, of such persons as shall be suspected of committing acts of hostility or conspiracy against Her Majesty’s person and Government (Province of Canada, 1866). Supra footnote 7.

[9]      An Act to alter and amend an Act passed in the first year of Her Majesty’s reign, entitled, “An Act to protect the Inhabitants of this Province, against lawless aggressions from Subjects of Foreign Countries at peace with Her Majesty” (Upper Canada, 1840).

[10]    This is the fourth clause, not the third. ibid.

[11]    The Fenian movement gained strength in North America when British antipathy in the United-States were raised after American politicians blamed “unneutral” British interference during the civil war after it concluded and raids on the Irish Republican Brotherhood in Ireland in the Fall of 1865 angered American immigrated Irish. In America, membership in the Fenian movement swelled late-1865 and it aimed at invading British North American to encourage rebellion and free Ireland from English subjugation. While the movement itself did attempt actual invasions of British North America, these were inefficient and unorganized – compared to “a crowd of seedy theatrical extras, hired by the hour for some battle scene in a play or a film.” The Fenians are mentioned once in the “Confederation Debates” of 1865 by T. D’Arcy McGee on Feb. 9,. 1865 when quoting a passage from Archbishop Connolly’s letter in favor of confederation published in the Halifax Morning Chronicle on Jan. 13, 1865. There Archbishop Connolly wrote:“A cavalry raid or a visit from our Fenian friends on horseback, through the plains of Canada and the fertile valleys of New Brunswick and Nova Scotia, may cost more in a single week than Confederation for the next fifty years; and if we are to believe you, where is the security even at the present moment against such a disaster?”