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Legislative Assembly, 19 March 1866, New Brunswick Confederation Debates

DEBATES OF THE HOUSE OF ASSEMBLY FOR 1866. 29

MONDAY, March 19.

After a number of Petitions and Bills had been brought in, Mr. FISHER moved the House into Committee on a Bill to incorporate the Fredericton Railway Company, which was agreed to.

DEBATE ON THE AMENDMENT TO THE FOURTH PARAGRAPH OF THE ADDRESS RESUMED. 

Hon. Mr. BOTSFORD requested the [?] of the House, in not carrying out the [?] which was that he should reply to Mr. McMillan. In consequence of indisposition he could 30 DEBATES OF THE HOUSE OF ASSEMBLY FOR 1866. not do this ; but he would like to make some remarks during the course of the debate.
  Mr. OTTY. I was absent from the House, during part of the time my hon. friend (Mr. McMillan) was speaking, consequently l cannot take up all his arguments. I have a want of confidence, not in the Government, but in the hon. mover of the Amendment, from the peculiar language in which it is worded. He goes on to state, after the Amendment which we have before us, " we regret that that no sufficient assurance has been given, that the people will not be found unprepared to defend their families, their homes, and their firesides, against lawless conspirators from the neighbouring Republic." That part was before the public, but he has withdrawn it. I can make allowance for any gentleman in the excitement of speech making errors of this kind, but for a man to sit down and write an Amendment like that, shows a great want of ability in language, to say the least of it. He has abandoned the most important part of it which relates to defending our homes, and moved merely what relates to " want of confidence in the Government," thereby showing that he considers office the most important part. The hon. member for Restigouche said, the Government was bound by the Address to bring forward some scheme for a Union of the Provinces. I cannot see how they are bound either by the Address or Speech from the Throne, to do so. It is putting a construction upon them which they will not bear. He alluded to the " Minute of Council" which says, "a large majority of the people of this Province are opposed to any closer political union, &c." There is nothing in the Address which is contrary to that " Minute of Council." The Crown in its Address to the people says, that despatches received from the Home Government will he laid before us. The people say, in answer, that they will consider those despatches, and the opinion expressed by Her Majesty's Government will command that respect and attention which is due to suggestions emanating from so high a source. That is all the Government promise, and they are not bound to bring in any scheme whatever. The Hon. Attorney General said it was not his intention to bring forward any scheme for a union of the Provinces, and in so doing he is acting in accordance with the wishes of the people. They speak of a change of feeling in regard to this Quebec Scheme. ln the County of Kings there is very litttle change from what it was at the last election. If the scheme was brought before the public to-morrow, the majority opposed to the scheme would be actually larger than at the last election. But that does not appear to be the point at present. Confederation is left out of the party nearly altogether. If I understood the Speech of the hon. mover of the amendment, he stands pledged not to support the Quebec Scheme. No wonder, then, that he secured his election from both parties. The people of York would not return a Confederate, for if Confederation was carried, the public business of Fredericton would become a nonentity. To say, then, that the Confederates have obtained a victory, is to put forth a false statement to the public. The hon. member for Restigouche makes use of the trite saying, " Union is strength." It may be in come cases, but not in all. The abstract idea is very well, but even then the union of oil and water will not make strength. It will make strength where the wolf enters into compact with a lamb. The life blood of the lamb, after it is devoured, causes strength to the wolf. The hon. member for Kent seems to have been afraid the members for Kings would be stuck in the mud. I do not know what kind of soil Kent is composed of. I think it must be very different from that of King's. When we plant potatoes it does not produce pumpkins, and when we plant apples it does not produce thorns. I think he is like an Indian who was engaged as a guide by a party of caribou hunters, who, before night, began to think they had lost their way, and upon questioning the Indian closely about the track, he replied, " Indian not lost ; wigwam lost." I am merely taking up the time which should have been occupied by the Surveyor General, who is indisposed, which has prevented him from making any remarks. I have no doubt he could answer and completely refute all that has fallen from his predecessor in office. With regard to a union of the Provinces hereafter, it is a matter which requires serious consideration, and I, for one, am disposed to go into union upon fair and equitable terms. I fully endorse what appears in the Address, " But in any scheme for a union of the British North Amerian Colonies," &c. I think a large majority in this House endorse those sentiments. I have no doubt but a scheme of union will be pressed upon us, by the Home Government. Our Government is in an embarrassing condition in regard to outside pressure, but they have done all they could under the circumstances, and I have no want of confidence in them. The charges brought against them by the members of the Opposition do not amount to any real charges against their character as a Government. If they did I would be one of the first to give my vote against them. They were in error in allowing the law for collecting " export duty" to expire, but every Government and every man is liable to errors. They throw themselves upon the people, and acknowledge their error. There have been other charges made but I do not see anything in them to induce me to go for a want of confidence in the Government. It has been said that the expiring of the " Minute of Council" regarding the Crown Land regulations, should have been published in the Royal Gazette. The same rule would apply to the law for collecting export duty. I consider it the duty of the exporters of lumber, or the persons applying for lumber, to search these Crown Land regulations, and then they know as well as the Surveyor General that such a law or order has expired. It is not necessary when an order expires to have it published, although it would have been well to have published that the export duty law was about to expire, but that was the duty of the preceding Government ; certainly it was not of this. I only hope the Government will be able to steer through the shoals and whirlpools thrown in its way, and I think they will, for I have every confidence in the ability of the leader of the Government, who is now at the helm of the state.
  Mr. WILMOT said he wished to reserve what remarks he had to make until the Attorney General was present, for he wished to refer particularly to the members of the Council, for he considered his honor and integrity impeached by them.
  Hon. Mr. CUDLIP moved that the debate be adjourned until half-past two.
  Mr. CORAM said, if the Opposition were not prepared to go on with the debate, they had better take the question at once, and not be delaying the business of the country, for they could not do justice to the Bills that were brought before them until this question was settled.
  Motion for adjourning the debate carried. 

            A BILL RELATING TO MARRIAGE.

  Mr. CONNELL in moving this Bill said, it was before the Legislature last year, and there were two objections made to it. One was with reference to the amount which should be paid for marriage license, and the other in regard to the manner of registration. One of the greatest objections under the law as it is now, that it makes the minister collector of the taxes. If the House do not think proper to reduce the license there can be no objection to the other part of the Bill, which relieved ministers from becoming tax gathers for the purpose of registration. With regard to the license fee, he thought it should not be a source of revenue. In Nova Scotia they paid but two dollars for a license, and the machinery was more complex than that provided under this Bill. He thought the license should be $1.50, and the registration fee 50 cents. There was another difficulty in the Bill of last year, which a section of this Bill provides for. It will enforce the registration of these certificates, which in many cases is not now done. It also provides for the publication of the banns of marriage twice, instead of three times, as at present.
  Col. BOYD remarked that money  paid for a license was paid very cheerfully. In regard to the clergymen collecting the tax, some of them liked to do it very well, for they collected the tax and did not register the marriage, but put the fees in their own pocket. He then related an instance of a woman, whose husband was killed in battle in the United States, not being able to obtain a pension in consequence of the clergyman not having registered the marriage.
  Mr. CONNELL explained that this Bill made provision for that.
  Mr. NEEDHAM said that the Bill provided that no minister, or any other person shall solemnize marriage until the party has produced a certificate from the Clerk of the Peace, that he has paid for the registry thereof. That relieves the minister from paying the Clerk, which they often do out of their own pocket. I do not believe it is good policy to reduce the fees. No man was ever prevented from getting married because he had to pay $4 for a license. If he could not do that he could be published, that is the legitimate way of doing it ; it is the way they do it in England, therefore, no man need be ashamed to be published.
  Mr. ANGLIN said, if he understood  the Bill, it involved an important principle, which was, that without the person had paid the fee for the registry a legitimate marriage could not be celebrated. This was interfering with the rights of the clergymen. He would mention a case DEBATES OF THE HOUSE OF ASSEMBLY FOR 1866. 31 in point: In Missouri an order had  the been issued that no clergyman should attempt to preach until he had taken the oath of allegiance. No man disputed but what it was perfectly right to take the oath, but the case was this: A Gen eral acting for the State had taken the right to license parties to preach after administering the oath of allegience to them; but many respectable clergymen submitted to imprisonment sooner than accept of such terms; and several clergymen of Catholic and other denominations took the same view. They said they were commissioned to perform certain functions by authority supreme to the State, and they claimed the right to preach the Word of God, and administer the Sacraments, without interference from the State. They takethis ground, they would take the oath at once, but when they tell them they cannot peach with out taking the oath; then they say you attempt to stand between us and the person we think are commissioned from. Therefore, he thought if any person did not choose to hand over the 50 cents the clergyman should not be prohibited from marrying him if he chooses to do it out of kindness or charity. He did not think they ought to reduce the license fee at all, and before they touched what might be a difficult matter, they had better let the present law stand, although it was not exactly what it ought to be.
MR. HILL would go for the reduction of the fees, for he considered them far too high. It appeared to him that that section which requires a certificate of registration from the Clerk of the Peace, before a clergyman is entitled to solemnize marriage, will cause inconvenience. In one-third of the marriages in his County the parties come from the State of Maine, in some instances they come one hundred miles and are married at St. Stephens, and having to get a certificate would put them to a great inconvenience. It should be provided in the Bill that they could get a certificate from the Issuer of Marriage Licenses.
Progress was then reported.

AFTERNOON SESSION

ADJOURNED DEBATE

MR. GILBERT said the hon. member from St. John (Mr. Wilmot) had expressed a wish not to speak upon this debate, until the Leader, and members of the Government, were in the places, as he considered his veracity was attacked by the Government; therefore, as he claimed the privilege of addressing the the House in the presence of the Leader of the Government, and it would be an act of courtesy to the hon. member to adjourn the debate under these circumstances.
HON. MR. HATHEWAY stated that it was very doubtful if the Attorney General would be able to be in the House for two or three days, as he was very ill. There was no necessity for adjourning the debate, for any other hon. gentleman could speak upon it.
MR. GILBERT said he was in the same situation as the member of for St. John, and he did not wish to go on with the debate when the Leader of the Government was not in his place.
MR. NEEDHAM moved that the debate be adjourned until 11 A.M., tomorrow.
MR. CORAM remarked that he supposed their ammunition had run out; he hoped they would come prepared tomorrow to carry it out.
MR. WETMORE said their ammunition was quite sufficient to storm the Government, and the were no difficulty about firing at all. The Hon. Mr. Wilmot declining to address the House in the absence of the Attorney General was an honorable proposition, as he had matters to discuss with him.
The motion for adjournment was then carried.

A BILL TO ABOLISH IMPRISONMENT FOR DEBT

MR. NEEDHAM in moving that the House got into Committee on the above Bill said, I will endeavour to explain to the House the nature of the BIll, and the reasons that induce me to spend time in endeavouring to frame it. In doing which I do not pretend that that Bill is perfect in all its pats, for it is almost impossible for one man, engaged in a matter of such vast moment, to perfect a Bill in which, when it comes to be carried, there will not be found some imperfections. I have been perfecting this Bill from the time we last met here down to within a few weeks of the present Session ; this being the tenth copy from the original draft. I have also submitted it to two or three Judges of the land, and those Judges approved of it in almost every particular. In reference to the guards I have thrown around the Bill. I asked them to make any suggestions which they thought would be a benefit to it. They replied they did not see that anything more was required, but we all know that when a case is to be tried ; before a court of adjudication they would see errors, which they do not see in reading the Bill. The Bill does not provide against imprisonment for debt in cases where they have been already contracted, for these debts have been incurred under certain restrictions, providing certain rights for the creditor, and these rights are not to be disturbed at all. This question of imprisonment fo debt is a subject which has occupied the attention of great statesmen. The abstract principle is, that it is a barbarian custom which has been long disgraced the statute book of a civilized country and ought not to exist. You imprison a man for a felony, and for a debt, thereby making the debtor a felon by turning the Jailor's key upon him. While I admit there are a great number of people in the world who have run into debt recklessly, and have failed when they ought not to have failed, I have yet to learn that there is more evil than good in the world. Honesty and wrong are comparative. It is not every man who runs in debt and does not pay is a rogue, but the rogue is the man who runs in debt and will not pay. When a man gets trusted for goods by falsely stating he is worth so much property, he should be dealt with as a felon, you should not jail him, but you should put him in the Penitentiary. Why should the unfortunate poor man suffer for rogues. (Mr. Hatheway, did you ever know an instance of the kind?) The same law is made for both. This Bill is made to ¬† protect creditors and honest debtors, and to punish dishonest debtors. If the hon. gentleman will suggest any improvement I shall be glad for I want to make it as perfect as possible. It has been conceded by the statesmen of England, and acknowledged by the United States, that imprisonment for debt is at variance with the pinciples of the day, and had its origin in the dark ages of antiquity. Unless we are only fit to live in those times we will adopt the principles of that Bill. I purpose in this Bill to abolish imprisonment for all debts that may be contracted after a time be fixed by this House. Some people may fancy that by doing so the whole credit system of the country will be abolished, and the lawyers will not have so much to do. I do not believe it will have this effect at all. In a great number of instances when a debtor is incarcerated, he not only loses, but the creditor also. I am not willing to take away any privileges from the creditor without giving something in lieu of it. In lieu of imprisonment for debt, I substitute an attachment law. Some have said this was of American origin, so it is; but that is no reason why it is not good or why we should not adopt it. Americanism is itself of British origin, and their common law is the same as our law. This principle of attachment, if it works well in America, will work as well here as there. Some men are afraid of it, because they think it will give one man the power to come down and take all the debtor has got, and the other creditors get nothing. This is not the case, for the very moment all the man's property is attached, his business is subject to investigation by a Jury who shall have power to compel the debtor to produce his books, and any documents relating to his business transactions, and to examine witnesses under oath, to see if he has conduccted his business in a fair way, and that his failure has not been occasioned by fraud, but has been by acts over which he had no control, in which case the verdict of the Jury sets the man free, and his property goes to his creditors; but if it is shewn that the debtor has been guilty of fraud, the law provides he is deemed guilty of fraud, and on conviction, is liable to punishment. It is a very extraordinary thing that we should be the only Province or State on the whole North American Continent that has not a Bankrupt Law. (A member.‚ÄĒ We have had three, and they have been repealed) Those Bankrupt Laws were made for the occasion ; they were made to swindle creditors, and as soon as they had accomplished their object they were repealed. All the debtor had to do was to get two-thirds of his creditors to accept a penny in the pound. I have put a good many through thate law. A man once came to me, and wanted me to put him through the "Unfortunate Debtor's Law." I put him through the operation, although, at the same time, he owed me ¬£50. I got his creditors to consent to take a penny in a pound, and for that the man got clear of all his debts. The cost of putting him through was ¬£10, and he turned round and offered me ten pence for my cost. Served me right. He did not even think to offer me the half-dollar for the ¬£50 he owed me. That is the way you left us lawyers with your Bankrupt Bills. This ¬† 32 DEBATES OF THE HOUSE OF ASSEMBLY FOR 1866. occurred, although I have no doubt that a great majority of the men that took advantage of thatAct were honest men, for it does not follow that because a man went through that Bankrupt Court that he was a rogue. It is one thing to charge a man with being dishonest, and another thing to prove him a rogue.
" Who steals my purse, steals trash ; 'tis something, nothing, 'Twas mine, 'tis his ; has been slave to thousands! But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed."
  It is a very easy matter to give a debtor a bad name, which he will find it a hard matter to get rid of, when he does not deserve it. We should protect the poor unfortunate honest man, even if some rogues get the benefit of it. You hear judges, lawyers and ministers quote : " It is better that ninety-nine guilty persons should escape, than that one innocent person should be punished." The Judges, in laying down the principles of the law, in addressing the Jury, say : " If you have a reasonable doubt concerning the guilt of the prisoner, give him the benefit of that doubt." There are forty- one of us here, and we say in our own strength, we are the assembled wisdom of New Brunswick. The law says so, when it commands the Sheriff to return wise and discreet men, and they have returned those men who sit here. Therefore, if we are the assembled wisdom, let us show our wisdom, not only by our conduct as men while here, but by our acts as legislators, which will prove to the people of this Province that we have not been sent here in vain. Let us legislate for the poor as well as for the rich. If we cannot feel for the poor, some of us cannot feel for ourselves. This Bill has long been called for, and somebody had to take what is called in Parliamentary language, the initiative. I have done it, but I am perfectly willing for any other member who has a better Bill, to strike out this Bill from the beginning to the end, and introduce other sections in lieu thereof. I would not care if it was cut up so I would not know it, so long as it contained the principles of this Bill. I should rejoice to think that though my Bill should sink, I had been the means of bringing forth a Bill that would have the desired effect. But if you have no better, don't go against this because it is a new thing. You have tried Bankrupt Bills, and they have proved a failure. Try this, and you will never repeal it. Is it a new principle ? We came here to legislate on new principles. What is the use of men sitting down here and originating no new thing at all ? When the Sheriff returned " Mr. Needham" as the most wise in all York, why should he tell the Sheriff by his acts that he told an untruth ? I want to show them they did not make a mistake. Are you afraid of all new things ? If so, the world would soon come to an end. It is a new thing for a man to get married, and if all men were afraid of new things, men would never get married. It is because people are afraid of new things that makes so many bachelors. The same thing might be said regarding the Canadian volunteers, who were dragged from under the beds, and brought up to the mark at the point of the bayonet. It is no wonder they wanted to get the Bluenoses to fight for them.
  Mr. FRASER said that, under this Bill, a creditor could attach nine-tenths of his debtors' property, not allowing the other creditors to share in it.
  Mr. NEEDHAM. My impression was, that when the whole of a man's property was taken, it was an act of bankruptcy, but if a less amount was required to constitute such an act, I would have no objection. My object in guarding the Bill in this way was, that I did not want to give the debtor a chance to become bankrupt until he ought to be. Therefore, I put in that all his property must be attached before he could take advantage of the act. There never was a time in the history of the country, when it was more necessary and essential that something of this kind should be done. We have had seasons of depression in consequence of the war across the border, which has caused our trade to be depressed, but now we are looking up a little. The little cloud which, when it commenced, was about the size of a man's hand, has rained the last drop upon the top of Mount Ararat, and times of great prosperity are coming. I do not prophecy it ; but any man looking at the past, and from the past, judging the future, will say, there are seasons of prosperity coming over this little spot called New Brunswick. Commerce is going to rise, business is increasing, deals are up, and it is only when men are enjoying prosperity, that they will go into large operations, expecting large returns ; but all at once a crash comes, and then the honest man is bowed down to the dust. Therefore, let us prepare for the unfortunate time to come afterwards ; and in our prosperity make a law which will not only benefit the debtor but the creditor, and, by so doing, show to the world that our aim and object is to make such laws as shall reflect credit upon ourselves and do our duty to the men who sent us here.
  Dr. THOMPSON said he could not agree with the principle of abolishing imprisonment for debt. If they wanted to keep men honest, they must make them amenable for every dishonest act. If a man does not pay his debs, and has no wish to pay them, he ought to be punished, and under the present law we have the power over him to punish him. Under the proposed law a poor man could not get along ; if he could not get his wages people would not trust him, for by abolishing imprisonment for debt, they would have no power over him. There was no great quantity of debtors put in jail, not more than one out of a hundred. They had better let the 99 excape as heretofore and let this law alone. If a man who gets into difficulty is an honest and civil man, they would not find one man out of ten thousand who would incarcerate him. He was going to vote against the bill, for they had had too many bankrupt laws already ; by one of them he had already lost thirteen hundred and some odd pounds. " A burnt child dreads the fire." They had better not put temptation in the debtor's way. We pray to be delivered from temptation, and he would add, deliver us from this Bill.
  Col. BOYD thought a Bill of this kind was very desirable. If a man owed them sum of money, they had a chance by this attachment to secure themselves ; and if the man owed more than his property was worth, the creditors all shared alike. He had sued a man a few days ago who gave him notice that he would swear out. He had property, but he swore he had none. The Justice had almost come to the conclusion that he must discharge him. He (Mr. Boyd) offered him one dollar a day to work for him, and would pay him half his wages every Saturday night, the other half to go to his credit ; but he would not work. If there had been an attachment law, he would have paid himself out of that man's property.
  Mr. WILMOT said he differed from his hon. friend who said that an honest man never would be sued. As far as he had watched the course of events in St. John, the only plan for an honest debtor was to run the country. The idea of locking a man up in jail, he looked upon as one of the relics of barbarism. He knew an honest man in St. John who had given all his property up to trustees, but had been kept on the limits for four years by one man, and that was not the only case of the kind. The only way for them at present is to run the country. He did not think it was desirable to drive men out of the country because they met with losses over which they had no control. In England they had abolished all bankrupt laws and imprisonment for debt, and had some very simple law instead. Imprisonment for debt was also abolished in the United States. Whatever would do away with the credit system would be beneficial to the country. There is plenty of property in the country, but there is a want of a circulating medium. When times get bad, there is no money to represent the property, and in consequence property becomes depressed in value, therefore difficulties will arise. What we want is less credit and more cash, and then we would have less debt.
  Mr. NEEDHAM thought it advisable that the Bill should be referred to a Select Committee, to take into consideration the suggestions thrown out by hon. members for its improvement. He would therefore move that they report progress.
  A conversational debate then took place concerning how the bill should be improved in the hands of the Committee, and progress was reported.
  House adjourned until 10 A.M. to-morrow.
T. P. D.

Source:

New Brunswick. Reports of the Debates of the House of Assembly. St. John: G.W. Day, 1865-1867. Microfilm copies provided by the Provincial Archives of New Brunswick.

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