The following Bills were read a third time, passed the House, and were sent to the
Legislative Council for their concurrence therein :
" A Bill to incorporate the Richibucto Boom Company. "
" A Bill further to amend the Law relating to the Poor House in the City and County
of St. John, in respect to Vagrants and Beggars. "
" A Bill in addition to the Act to provide for the Relief of the Sufferers by the
late calamitous Fire at Indiantown, in the Parish of Portland. "
" A Bill relating to Firemen in Mill- town, in the Country of Charlotte. "
" A Bill to enable the Corporation of the City of St. John to make certain improvements
on the Streets of St. John, on the Western Side of the Harbor. '
The Bill was agreed to.
The Bill was agreed to.
COUNTY COURTS.
Hon. Mr. FISHER moved the House into Committee upon a Bill to establish County Courts.
Mr FISHER.- This Bill will recommend itself, and it is not necessary for me to make
any lengthy remarks upon it. It has long been the desire of the country that there
should be some more expenditious way of collecting small debts, and a less expensive
way of administering justice ; therefore, to meet this want, this Bill has been prepared
to establish County Courts, so that causes may be brought to a more speedy issue,
diminish the amount of business in the Supreme Court and get rid of the Court of Common
Pleas. They will try a large proportion of the Criminal business, which is now a great
expense to the country from persons being detained in jail for a length of time, in
consequence of the infrequency of the sittings of the Supreme Court in some Counties.
If we feel that there County Courts are necessary, we will all feel anxious that its
provisions should be made as perfect as possible, and we invite the assistance of
hon. members to attain that object. A question has been asked as to whether this House
has the right to legislate upon this subject.
If I did not believe we had a perfect right
98 DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867.
to legislate upon the subject I should not have brought forward this Bill. The Delegates,
when they discussed the Union Act, came to the conclusion that we should have the
privilege of establishing these Courts, which they had in full operation in Upper
Canada, and the salaries of the Judges, as well as the Judges of the Supreme Court,
should be paid by the General Government. I think it was understood, though not stated
in so many words, that the establishing of these Courts would form part of our arrangements
necessary to be made before we went into Union. I could talk a long time upon a law
Bill, but I shall not take up the time at present, for the great point is to settle
the principle of the Bill. If we agree that it would be an advantage to establish
these County Courts, the other matters will be mere matters of detail, and the House
can appoint three, four, five or six Judges, as they think proper. I think we will
all agree that it is desirable to make the practice in the Courts as simple as we
can. We have tried to incorporate all the provisions in this Bill that are applicable
to the Supreme Court, either found on our Statute Book or rules and practice of that
Court, and then Barristers will know what law they are administering. There is a provision
in this Bill that the preceedings and evidence in this Court can be sent to the Supreme
Court, and they will pass judgment upon the matter. Should the principle of the Bill
pass, I shall have a number of amendments to propose. I have now briefly pointed out
the main objects of the Bill. It has been long required in this country, for the present
state of things must be to some Counties where Judges go but once a year a denial
of justice ; but under this Act we send these Justices to the different Counties as
often as it is necessary for them to go.
Mr. SMITH—I was somewhat disappointed in the speech of the Attorney
General, and 1 think almost all the
hon. members on both sides of the
House will agree that he has not put forward that statement which we believed he would
do, for according to what he says our rights are depending upon some vague understanding.
He tells us he things there was some kind of understanding.
Hon. Mr. FISHER.—I mentioned it in regard to our moral right to legislate upon this subject.
Mr. SMITH.—It is not a question of moral right. It is a question of constitutional right, and
not dependent upon what was said or agreed upon in this conference. Our constitution
does not rest upon a foundation so uncertain. He says he talked about it outside the
conference, and he asks us now to pass this Bill, because these Courts were
talked of outside the conference. We have to see what is in that Act of Union and
what our constitutional rights are under that Act. I appealed to the Attorney General
yesterday, and I appeal to him to-day, to know what our rights are.
Mr. SMITH.—What does he mean, then, by moral right—a moral right to pass a law ? I trust our
liberties do not depend upon anything so uncertain as that. I waited with anxiety
to hear him say whether our criminal administration would be under the New Dominion
or under the Local Legislature, but he has shirked the question and will not give
us this information. Have we not a right to call upon him for an answer, as he was
one of the authors of the Confederation Bill and spent months in its preparation ?
He is keeping us in the dark as to whether the criminal jurisprudence of the country
belongs to us or to the Federal Parliament. I claim from him as answer. This House
has a right to know his opinion upon this point. I think that before proceeding with
this Bill we ought to be enlightened upon this point. Is it his business to prosecute
criminals after the first of July, or is it the business of the Attorney General of
the Federal Parliament. I appeal to the country if that is not the information we
ought to have. The Attorney General declines to give us this information, therefore
we will have to argue the question unaided by him. Yesterday he promised to answer
the question to-day—
Mr. SMITH.—I think in answer to my question he said he would consider the matter, and give
his opinion to-day. Have we a right to legislate, or are we to be kept in the dark?
He cannot conceal this information any longer from the House. If he will not give
it to us I will present my views to the House in reference to this point. He has an
advantage which I have not enjoyed, for he has been one of the framers of the law,
and should know what the law should mean. We have to look at the Act as it is and
see what it says. In my opinion the criminal business of the country is given to the
General Government. I will call the attention of the House to a paragraph in this
Act ; when he proposes to put some of the jurisdiction of the criminal law in this
County Court he is violating the principle he has acceded to. We find in the classification
of the powers assigned to the different Parliaments that—
It shall be lawful for the Queen, by and with the advice and consent of the Senate
and House of Commons, to
make Laws for the Peace, Order and Good Government of Canada, in relation to all matters
not coming within the classes of subjects by this Act assigned exclusively to the
Legislatures or the Provinces ; and for greater certainty, but not so as to restrict
the generality of the foregoing terms of this section, it is hereby declared that
(notwithstanding anything in this Act) the exclusive Legislative Authority of the
Parliament of Canada extends to all matters coming within the Classes of Subjects
next hereinafter enumerated, that is to say—
1. The Public Debt and Property. 2. The Regulations of Trade and Commerce. 3. The
Raising of Money by any Mode or System of Taxation. And goes on enumerating a variety
of subjects, which shall exclusively belong to the Parliament of Canada, and among
them we find—
And goes on enumerating a variety of
subjects, which shall exclusively belong
to the Parliament of Canada, and among
them we find -
" The Criminal Law, except the constitution of Courts of Criminal Jurisdiction, but
including the Procedure in
Criminal matters."
I ask what that means? Does it mean
the administration of the Criminal Law
of the country? I think it covers the
whole. I find also that they have the
establishment, maintenance and management of Penitentiaries. If they had
not the administration of the Criminal
Law, why take charge of the Penitentiaries? Therefore I think the Federal
Parliament take charge of, and settle the
Criminal jurisdiction of the country.
We find among the subjects given exclusively to the Provincial Legislature :—
" The administration of justice in the Province, including the constitution, maintenance
and organization of Provincial Courts, both of Civil and of Criminal Jurisdiction,
and including Procedure in Civil matters in those Courts."
The Local Legislature seems to have the power to constitute the Courts of Criminal
Jurisdiction, but the prosecution of criminals in that Court seems to be in the General
Parliament. I would like to have the opinion of the Attorney General on that point,
but I suppose he will answer that question as he did the other, by remaining silent.
Not having information from him we are to a certain extent groping in the dark. We
just act upon our own convictions in the matter. The Attorney General told us in igtroducing
this Bill that he intended to supplement it with another Bill called the Divisional
Court Bill. Both these Bills should be before the House before we pass this one. I
ask the Attorney General now to bring forward that Bill, for this is only half a measure,
as these Bills were to run together concurrently. I do not see that this Bill before
the House will be calculated to be productive of much advantage to the country. There
will be five more Judges' salaries to pay, at from $1000 to $2,600 per annum. The
question seems to me to be not whether we have the power to fix the salaries of
DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867. 99
the Judges, but whether the Government has the power to appoint them. I doubt whether
we have this power. I think it would be very inconsistent for us, according to the
reading of this law, to make appointments to the Court of Common Pleas, because that
comes under the General Government. The Court of Common Pleas may be considered a
County Court, and the Judges of that Court require to be paid by the Federal Government,
therefore I think it would not be right for us to appoint them. It would be better,
instead of passing this Bill, to make some change in the Court of Common Pleas and
alter the practise in the Supreme Court. I would suggest if you want to cheapen litigation,
to increase the summary practice in the Court of Common Pleas, and in the Supreme
Court, to ÂŁ50. I find the fees are more under this Bill than they are in a summary
suit. In a summary suit the costs, exclusive of the execution, would be $7.20 ; but
under this Bill I think a summary suit would be $8.60, this includes the cost of the
execution, which is $1, thus the cost under this Bill will be 40 cents more than the
costs under summary suits are now. These County Courts are to have jurisdiction on
all debts up to $200, but there is no limit the other way ; no provision which says
that when an action is brought for an amount below $20 the parties shall not be entitled
to costs. Under this Bill a man could bring an action for one dollar, and according
to the process prescribed here, the costs on that would be $8.23. I do not think this
is very desirable, unless you wish to increase the expense of litigation and all the
costs of of suits. In regard to the Criminal jurisdiction we will have each one of
us to act according to his own judgement. We know the Counties of York, Carleton and
Sunbury have Municipal Corporations, and the Court of General Sessions of the Peace
exercise certain functions in those Counties in regard to its local affairs. Certain
duties are imposed upon the Grand Juries in regard to fiscal affairs. These fiscal
affairs must be submitted to the Grand Jury, because they cannot make an assessment
upon the County unless the Grand Jury recommennd it to the Court of Common Pleas.
The General Sessions have a certain jurisdiction over certain descriptions of crime,
such as larceny, misdemeanor, &c., and the whole machinery of the Court is complete,
and both these Courts sit at the same time, and the same Jury answers the purpose
of both of these Courts. They have a Grand Jury and a Petit Jury, and if a Bill is
found against a man for larceny instead of his being contained in Jail, perhaps for
three months, waiting for the sitting of the County Court, he can be brought to trial
at once, for a Bill has been found, and the witnesses are there, and they have all
the machinery necessary to give him a trial.
It may be urged that the Judges of
these County Courts will be paid by the General Government. We will have to contribute
our part in paying our share of the salaries of the Judges of the whole Dominion,
including these County Court Judges. If the interests of the people would be subserved
by establishing these Courts, it is very desirable to appoint them, but I think differently.
If you want to cheapen litigation we can prepare a Bill to extend the summary practice
of the Supreme and Inferior Courts to $200. The Inferior Court of Common Pleas cannot
grant a new trial, but the party may appeal to the Supreme Court in each County. I
would suggest that the Judge appointed to preside over the Court of Common Pleas should
be a legal man, and I would leave the jurisdiction of the Court as it is, for it is
well defined and understood. The salary of the  Judges could be fixed at from $400
to $800, and these salaries would be paid by the General Government. You would then
have an efficient man to preside over the Court of Common Pleas, and he could at the
same time be Judge of the General Sessions. I would give the Court of Common Pleas
the power of granting a new trial, I would give an appeal to the Supreme Court, I
would make the judgment binding upon lien as in the Supreme Court, and I would let
lands be levied upon under an execution prima facie. These are all the changes you need to enable you to have a convenient and cheap
Court. You would then have a Court in every County, and a Judge residing either in
the County or the adjoining County, instead of having a Judge floating about over
three Counties. There is no provision made for the Judge to reside in a particular
place ; therefore if he holds three or four Courts in different Counties there would
be a great difficulty in finding him when you wanted to get a summons. I will call
the attention of the House to another provision in the Bill which will be very inconvenient
:
" When any tenant shall, after the expiration of his tenancy, or on due notice to
quit, refuse to deliver up possession to the landlord, such landlord may apply to
the Judge of any County Court where the premises are situate, and having made oath
before him that such tenant has held and occupied the premises designated in the affidavit
for a certain period then expired, and that due notice to quit, when necessary, has
been given, such Judge shall, upon good cause shewn, issue a summons, giving at least
six days notice, to be served with a copy of the affidavit on the tenant, or by leaving
the same with some adult person of the household on the premises to shew cause why
he holds over."
This power is now given to two magistrates, and I think no practical inconvenience
has arisen from this jurisdiction being exercised by these Magistrates. The Magistrates
are living nearby, and you can approach them at any
time, whereas the Judge of this Court will be racing about from County to County,
and you will not know where to find him. This will cause a great delay, for the affidavit
has to be sworn to before the Judge of the County Court. I think it would take all
the lawyers throughout the country to find a more convenient way of ejecting a man
from a premises than we have now. You can now, by going before two Magistrates eject
a man from a premises in the course of a week, and if the tenant feels that injustice
has been done him, he can appeal to the Supreme Court, therefore, I say, so far as
that is concerned, the alteration proposed here, instead of being a benefit, will
be a great evil.
Another section of the Bill says:
" If the Judge shall be satisfied, by either party, in a cause in his Court, that
such cause can be more conveniently or fairly tried in some other County Court, he
shall order that the venue be changed, and that the cause be sent for hearing to such
other County Court ; and the Clerk of the Court shall forthwith transmit, by post,
to the Clerk of the Court to which the cause is sent, a certified copy of all papers
and proceedings in the cause on file in his office, and a certified copy of the order
for changing the venue, which cause shall be dealt with in such Court as if originally
brought therein."
In a trial before this County Court the Judge may charge the Jury according to his
idea, and the Jury, influenced by his charge, may bring in a verdict against the evidence
; the aggrieved party wil then have to apply for a change of venue to the Judge who
decided against him, and he in ordering the venue to be changed will have to decide
against his own opinion. There is the power provided to grant a new trial if he appeals
to the Supreme Court :
" In case any party in a cause in any of the said Courts is dissatisfied with the
decision of the Judge upon any point of law, or with the charge to the Jury, or with
the decision upon motion for a non suit or new trial, or in arrest of judgment, or
for judgment non obstante veredicto, he may appeal to the Supreme Court, and the Judge, at the request of such party,
his Counsel or Attorney, shall stay the proceedings for a time not exceeding twenty
days, when, if the party wishing to appeal, give a bond, with sureties to the satisfaction
of the Judge, conditioned for the payment of all the costs of the appeal awarded by
the said Supreme Court, if the judgement or decision of the Judge be affirmed, then,
at the request of the party appellant, the Judge shall certify under his hand to the
Supreme Court, the pleadings in the cause, and all motions, rules or orders, made,
granted or refused therein, with his own charge, judgment or decision thereon."
100 DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867.
Is not that absurd? The Judge has to furnish a certified copy of all the rules, motions
or orders, whether they relate in the slightest degree to the case or not.
Instead of adopting this Bill I would suggest these alterations in the Court of Common
Pleas ; that the summary practice be increased to fifty pounds, that an execution
be levied upon lands, that they have power to sell property, both real and personal,
and have power to grant a new trial.
I would ask the Attorney General whether the appeal from the Supreme Court is to a
Court of Appeal in the New Dominion. We find a section of the Imperial Act says :
"The Parliament of Canada may, notwithstanding anything in this Act, from time to
time provide for the Constitution, Maintenance and Organization of a General Court
of Appeal for Canada, and for the establishment of any additional court for the better
administration of the Laws of Canada."
We have understood that the Court of Appeal was to be a court of Appeal for the various
members of that confederation ; but according to the language of this law, it is not
a Court of Appeal for our Courts, but only for Canada. We are to be a portion of the
Dominion of Canada, but we are separate and distinct from them in regard to regulating
the Civil practice in our Civil Courts. But in regard to the Criminal Law, I think
when a man is convicted for crime it is incident to our position that he should appeal
to the Court of the New Dominion. I have failed to ellicit anything from the Attorney
General in regard to the intention of the framers of the law as to the construction
and interpretation of it. I will now appeal to the hon. member for Northumberland
(Mr.Johnson) as he was one of the Delegates sent to England to frame that law, and
he must surely know whether the Criminal Law is incident to the General Parliament
or to our Local Legislature. In my judgement the Criminal Law is under the control
of the General Government, even down to the smallest crime, for why should they take
the control of the Penitentiaries unless they undertook the control of the Criminal
Law. The object of this Bill is to create offices, but I believe we have no power
under the Imperial Act to fix the salaries of those officers. You are creating a new
Court, and you limit the maximum power of the Court to actions not exceeding $200,
but you ought to restrict it to a minimum. I understand the Attorney General to say
that he intended to introduce another Bill which would provide substitutes for the
jurisdiction of
Magistrates, and I asked him about it, but he continues silent. If he intends to bring
it we should have it before the House now, as it is connected with the administration
of justice. I have always in this House advocated the propriety of increasing the
jurisdiction of Magistrates to ten pounds. There may be one or two Magistrates in
each County who are trading men, but then you can have a Jury, and unless they are
packed you are very apt to get justice done. If you can get rid of these trading Magistrates
I doubt whether you could improve the method of collecting these small debts. Those
Magistrates are all over the country, and a man does not have to travel very far to
find one to issue a summons for him. We had better keep the jurisdiction of our Courts
as it is, for the lawyers are now accustomed to it, and appoint a lawyer as Judge
of the Court of Common Pleas, and then we will not be violating the Imperial Act.
I do not think it was the intention of the parties who framed that law that we should
have the power, at this session, before the Proclamation of Union takes effect, to
create new Courts and re-cast the whole Judicial jurisdiction, and create new Judges
with salaries of ÂŁ650 a year. I do not thin we are justified in doing it, and I do
not think the interests of the people of this Country will be improved by it in the
slightest degree.
Mr. WETMORE.—My hon. friend referred to a section of the Act of Union, which provides that "the
Parliament of Canada may, notwithstanding anything in this Act, from time to time
provide for the constitution, maintenance, and organization of a General Court of
Appeal for Canada, and for the establishment of any additional Courts for the better
administration of the Laws of Canada." I understand him to say he had very serious
doubts whether or not the Court of Appeal in Canada would be the Court of Appeal for
our Province. I will direct his attention to the third paragraph in the Act of Union,
which says :
It shall be lawful for the Queen, by
and with the Advice of Her Majesty's Most Honorable Privy Council, to declare by Proclamation
that, on and after a Day therein appointed, not being more than Six months after the
passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall
form and be One Dominion under the name of Canada ; and on and after that Day these
three Provinces shall form and be One Dominion under that name accordingly.
I will also direct his attention to the latter part of the fourth Section and the
fifth :
Unless it is otherwise expressed or implied, the name Canada shall be taken to
mean Canada as constituted under this
Act.
Canada shall be divided into four Provinces, named Ontario, Quebec, Nova Scotia, and
New Brunswick.
Mr. SMITH.—I am aware that ehse
four Provinces are to constitute what is called Canada, but we have a distinct and
separate jurisdiction from Canada. This Court of Appeal, as it must be interpreted,
means a Court of Appeal in those matters which the whole of Canada has the power to
legislate upon. Certain powers are taken from us and transferred to the General Government,
and certain powers are left us. The Court belongs to us, and we have power to change
its constitution, so far as its civil powers are concerned, and no one has a right
to object to it, therefore that paragraph applies to the Courts of Canada, and does
not apply to the Courts of New Brunswick.
Hon. Mr. FISHER—I refused to answer my hon, friend's questions, because it is unparliamentary to
interrupt a gentleman when speaking. It is unparliamentary to put questions at that
time ; the proper course was for him to finish his speech, and then for me to answer
him. When I opened the debate I made very few observations, but I thought I made myself
intelligible. My intention was to bring the Bill before the House, and not to make
a speech upon it. I think my hon. friend must certainly have Confederation on the
brain. He complains that I did not answer his questions yesterday, but had promised
to do so today, and had not done it. I did not promise to answer all his questions
to-day. I said I believed we had the power to establish three Courts, and I went on
to show there was no impropriety in doing it. In regard to the Criminal Law, my opinion
is that the administration of the Criminal Law devolves upon us, but the General Government
have power to regulate criminal procedure and criminal law, so at a man may not be
punished one way in Nova Scotia and another way in New Brunswick. The Criminal Law
will be uniform in the whole Union, but the administration of it belong to us. Unless
the question affects something before the House, it is unwise to answer all sorts
of questions arising out of this Union Act. I have told him what my view of the law
is. One thing I did omit in regard to this Bill. I stated the other day that we intended
to bring in a Bill to provide for divisional Courts, and we did intend to do so, but
we afterwards concluded not to prepare it. This Bill was prepared before we came to
that determination. We intend to ask the House to pass this Bill, and we must make
the appointments subject to the action of the General Government.
DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867. 101
In regard to this Court of Appeal, if it
is ever established, it will be a last resort of question for adjudication, and will
obviate the necessity of going to the Appeal Court in England.
If the House is in favour of the principle of the Bill, that we should establish these
County Courts, the appointment of Judges and the other machinery are mere matters
of detail, and all I desire is that they shall be assimilated as nearly as possible
to the practice of the Supreme Court.
Some hon. members have doubted whether we have the right to fix the salaries of the
Judges. I think we have the right, and I propose to fill the blanks with the just
such sums as are in the Canadian Act. After the Union takes affect, as soon as the
Parliament meets they will be revised, therefore there cannot be much harm done in
regard to salaries, for before nine months the Parliament of Canada will legislate
upon the subject. I do not wish to shrink from answering any question that necessarily
arises from this Bill being before the House, and if we carry the principle of the
Bill I hope all the hon. members will unite with us in making its practice as simple
as possible.
Mr. JOHNSON.—I cannot agree with my hon. friend from Westmorland (Mr. Smith) in some of his arguments,
but I do not wish to go into details, because I have one objection to passing this
Bill, which to my mind is almost insuperable. I feel as one of the Delegates that
agreed to the Act of Union, that we have entered into a contract, and we cannot establish
these Courts without violating the spirit of that contract. While I think the Judiciary
of the country can be improved, I do not agree with my hon. friend when he says he
would appoint a Lawyer of the Country as a Judge in the Court of Common Pleas. The
difficulty is this : a man who lives in the community and transacts business for persons
in the Supreme Court, cannot try a case where the same parties are concerned without
being suspected of aiding those who were his clients in the Supreme Court. I go to
the Supreme Court one day as counsel for my clients, and the next day I sit as a Judge
of the Court of Common Pleas where the same parties are concerned. There is a weakness
about this that I cannot get over. I shall not go into the details of the Bill, but
I must express this opinion upon our right to pass the Bill. I conceive we entered
into a contract with the people of Canada and Nova Scotia to carry out the law that
was then passed, and that law was passed under certain conditions and circumstances,
and to seek now, when the law is going into operation, to vary those conditions, is
a position we ought not to as
sume. When it was proposed in Quebec
that the salaries of the Judges should be paid by the Local Governments, while the
General Government should make the appointments, I took the ground that the salaries
must come from the same Government in which the patronage lay, and I take the same
ground now. If I had not been on the delegation I might have felt differently, but
I now feel that all those for whom we acted are bound by the conditions of the bargain
we made. When we entered into that contract we had certain Judgeships with certain
salaries, and it is only the General Government which should establish additional
Courts, and they will do it if necessary. I would go for passing a low of this kind
if I was satisfied we were doing it right in contemplating making these appointments
now. Is it fair to give the patronage to the Local Government and let the General
Government pay the salaries? I have thought over this matter, and tried in my own
mind to get rid of the difficulty. I desired and do desire that improvements may
be made in the Judiciary of the country, but I feel I would not be acting fairly if
I supported this Bill. I mention this that hon. members who were on the delegation
with me may have the opportunity of convincing me. If I am only convinced that it
would be right, I would go for the Bill to the best of my ability. We made that contract
of Union when the country was in a certain condition, and if we seek to increase the
number of Judges we put an additional expense upon the General Government outside
of that condition. It was universally expressed, as well in Canada as at the Conference
in London, that the Judges ought to be appointed by the General Government. The reason
for this was, that the General Government would be less influenced by local prejudice,
and therefore a better class of men would be appointed tot he Bench. It was agreed
that until the laws should become assimilated the local Judges should be selected
from the local Bar, except for Quebec, where they must continue to be local, because
they are governed by a peculiar mode of procedure, but the common law should be the
same over the whole Dominion, and the same offence should amount to the same crime,
and meet with the same punishment in the various parts of the Dominion. The mode of
procedure must be different in Quebec, and that was one reason we could not advocate
a Legislative Union. By the Treaty made at Paris the Lower Canadians have certain
rights reserved for them, that is in regard to their language, law proceedings and
institutions of the country, and these rights they themselves cannot give up, and
while twenty men in Lower Canada demands
these rights it becomes a question not
between the Provinces,but a question between France and England. They cling to their
mode of procedure, but are willing to submit to have the General Legislature make
the law in regard to crime the same over the whole of the Dominion.
In regard to our power to legislate upon this question, it cannot be doubted that
we have the power until this Proclamation declares the Act to be in force. We have
the same power to legislate now as we had before we agreed to this Act of Union. The
point is not whether we have the power, but are we in a position properly to exercise
that power? Having agreed that those Judges should be paid by the General Government,
are we doing what is fair between man and man in taking the patronage of those appointments
to ourselves when they have to pay the salaries? If any of the hon. members can convince
me by any arguments they can conduce that we are justified in taking this patronage
out of the hand of the General Government, I shall be very happy to see if I cannot
improve the Bill and assist them in any way, but until I am convinced of that, I am
not in a position to consider the matter at all.
Hon. Mr. WILMOT.—In the old Quebec Scheme the Judges of the County Courts for Western Canada alone
were to be a charge upon the general revenue. When the question came up for discussion
before the Delegates I made a proposition that as County Courts having worked well
in Western Canada, and being a cheap and expeditious mode of getting small debts collected,
they should be extended to other parts of the Dominion, and it was agreed by the Delegates
that they should be so extended.
Mr. JOHNSON.—I am not aware of any agreement ; there was a suggestion made that these Courts
should be extended, provided the General Government approved of it.
Hon. Mr. WILMOT.—The salaries of the Judges of the County Courts of Western Canada are paid out of
the general revenue, but the Act brought in was to establish County Courts through
the other Provinces, and the General Government were to pay the salaries of the County
Court Judges.
Hon. Mr. TILLEY.—My hon. and learned friend from Northumberland (Mr. Johnson) says if we can convince
him satisfactorily that his co-delegates have any justification in departing from
a contract entered into with our colleagues representing Canada and Nova Scotia, then
he is prepared to support the Bill I assert here boldly that there
102 DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867.
is nothing can justify on our part a departure in the least degree from a contract
made there. If I entertained the opinion for one moment that the Bill now under the
consideration of the Committee was intrenching upon any portion of that contract,
I would give it, as one of the Delegates, my most determined opposition. I hold that
under the provisions of this Bill we are acting in honesty to our co delegates. My
hon, friend from Norhumberland says that at Quebec he took the ground that the salaries
must come from the same Government in which the patronage lay. It was agreed, no doubt,
that the Judiciary should be paid by the General Government, and if paid by them they
should make the appointments —a discussion took place, and a speech was made by a
member of another branch of the Legislature, and there was scarcely any difference
of opinion upon the subject. That provision has not been departed from even in the
London Conference or in this Act. Then in regard to fixing the salaries, it is only
after the Union takes place that no salary can be fixed without the assent of the
General Parliament. All salaries may be fixed now, and appointments made to the Bench,
but they are all subject to modification and change by the General Government. If
my hon friend was right in saying we should not make these appointments, he might,
with equal justice, say, if a vacancy occurred on the Bench of the Supreme Court,
that it was under the control of the General Government alone, and we should not appoint
a Judge for that Court. He takes two positions, first, that it is a violation, to
a certain extent, of good faith with our co-delegates, and next, that we have not
the power.
Mr. JOHNSON.—I said we had the
power, but the property of exercising it was a different thing.
Hon. Mr. TILLEY.—I understood him to say we had a right to pass the Act, but had not the power to
appoint a Judge.
Mr. JOHNSON. — No. no. I said most distinctly that we had the right to pass the Act until the
time the Proclamation brought the Act of Union into operation ; that our power was
not limited until that Act was in force.
Hon. Mr. TILLEY.—Then my hon. friend takes away one of the objections. I thought he admitted that
we had the power to pass the Act, but did not think we had the power to appoint the
Judges or fix the salaries. The right, so far as the salaries are concerned, is a
matter to be dealt with after Union takes place. We may think the country requires
four or five more Judges,
but they may say two Judges are sufficient, and they can deal with the number of Judges
and the amount of salaries as they see fit. The salaries of our Judges are to be the
same as the salaries of the Judges of Upper Canada, that was arranged at Quebec. It
was brought up and discussed fairly there, and the whole subject was entered into
in reference to the property of extending to the different Provinces the same privileges
given to Upper Canada. The resolution passed at the London Conference shows clearly
the nature of the agreement entered into:
" The General Government shall appoint and pay the salaries of the Judges of the Superior
and District and County Courts in each Province, and Parliament shall fix their salaries."
This section was put-in by chance,
but the question was well argued, otherwise it would not have been put in. We discussed
the whole Quebec Scheme, and the question was argued in reference to paying the Judges
of the County Courts in Canada, and we secured for New Brunswick the same privilege.
Mr. SMITH.—There is a distinction
between the resolution passed in Conference and the law.
Hon. Mr. TILLEY.—I will read them together. I will first read the resolution passed at the Conference,
and I will then read the law framed by the Attorney Generals of the different Provinces,
assisted by a legal gentleman who drafts the Imperial Acts for the Imperial Government.
First.
" The General Government shall appoint and pay the salaries of the Judges of the Superior
and District and County Courts in each Province, and Parliament shall fix their salaries."
The law framed from that says :
The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and
County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and
of the Admirality Courts in cases where the Judges thereof are for the time being
paid by salary, shall be fixed and provided by the Parliament of Canada.
This says except the Courts of Probate, which we told them were paid by fees. Why
was it necessary to make a provision to pay the Judges of County Courts unless we
contemplated establishing than ? I think every hon. member in the House will see that
it is the spirit of the agreement that these Courts should be established, if we did
not contemplate doing this, why did we ask for this change in the Quebec Scheme ?
My hon. friend says this patronage should not be exercised by the
Local Government, but by the General
Government. Suppose these Judges are appointed in the meantime, they are appointed
by the advice of the Local Government ; and if they were appointed by the Central
Government, would it not be after advice had been given by the Local Government ?
We have the power to establish these Courts, and I believe it is perfectly in accordance
with the contract entered into with our co-delegates, and not a violation of it. If
it was, I would not stand here and support this Bill, I am not supporting it for motives
of personal interest, for I cannot be a judge.
Hon. Mr. TILLEY. —I should like to know from my hon. friend, with his experience in this respect,
what he thinks of the patronage. I do not think he would desire a very large amount
of patronage, especially in the appointment of Judges.
Mr. SMITH.—It will help you to go to Ottawa.
Hon. Mr. TILLEY.—In making these appointments, there will be five enemies made to one friend. I have
no doubt it there are four Judges to be appointed, there will be found twenty willing
to take the office for the members of the profession are very patriotic, and they
would make a great sacrifice to prevent a situation of this kind from going a begging.
I am not a lawyer myself, and therefore cannot expect to be a Judge, so I cannot be
charged with supporting the measure for that purpose. If I was looking forward to
Ottawa, I think it would be threatening my position rather than strengthening it for
me to stand here in my place and advocate the passage of a Bill at variance with the
wishes of the gentlemen in Canada with whom I would be associated. When I was lately
advocating the introduction of a section into a Bill to authorize the Government of
Canada to take possession of the Bay Verte Canal, I was told I was advocating the
cause of Canada, but now the tables are turned, and I am accused of dishonestly wanting
to get into the public chest of Canada. It is not very consistent to say first I am
working for Canada, and the next day say I am working against Canada. We are perfectly
jusstified in doing what we are, and the only question to be considered is, how many
Judges are you justified in appointing or employing for these duties ? If you appoint
more than are necessary, you are not justified, therefore you should appoint just
as many as are necessary and no more.
Mr. SUTTON.—I think this Bill will take from us certain rights and powers,
DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867. 103
which we now possess, but after due consideration, I have made up my mind to support
it.
Mr. CHANDLER.—I thought from the length of time the hon. member for Westmorland (Mr. Smith) spoke,
we would have heard more from him regarding the principle of the Bill. In the first
place, he said he was going to discuss the principle of the Bill, and was not going
to enter into details ; but he said very few words about the principle, but spoke
about the defects of the different sections of the Bill. It has been said that we
have not the power or right to legislate upon this subject at all. I say until the
Union is consummated we are clothed with all the powers we had. Has not this Legislature
the power to establish or abolish any Courts of Law ? I say our legal right to do
so cannot be doubted. Then if there is a legal right, we must consider whether it
is necessary. Let us look at the state of the law as administered in the country.
My hon. friend from Westmorland (Mr. Smith) has tried to put a false gloss on some
of his statements ; he refers to the jurisdiction of the Supreme Court, and says in
a summary action the costs would be $7.20, but under this Bill they would be $8.60
including the cost of the execution. That is for sums below ÂŁ20, but if you bring
an action for sums of from ÂŁ20 to ÂŁ50 in the Supreme Court the costs are ÂŁ8 or ÂŁ9
; therefore, when he compared the costs under this Bill and the costs in the Supreme
Court, he did not state the whole case. This Bill possesses the important element
of cheap justice, for causes are decided cheaply and quickly. It proposes to reduce
the number of jurors to five, thereby reducing the expense considerably. If I had
my way in this summary jurisdiction, in all causes where the mere right of the party
or debts are concerned I would not have any Jury at all. I would rather leave the
cause to an intelligent and learned Judge than submit it to a Jury, who are influenced
by paltry prejudice or who are not acquainted with the subject. In the Supreme Courts
in England and in this Province there is often a great contest between the Judge and
Jury. The Jury often go against the evidence, and then applications are made for new
trials to get rid of the wrong decisions of Juries. If the Judge in any of these County
Courts should go wrong and misdirect the Jury, the party has an appeal open to him
and he can avail himself of it. I have made a very few observations, and I shall reserve
my remarks until we come to consider the details of the Bill. It is admitted that
we have a right to legislate upon this subject, therefore
the only thing for us to consider is whether the country is in such a state as to
require the construction of this Court. If it is the opinion of the House that we
are in such a state that this new system is required, and there is no legal objection,
I shall give the Bill my support.
Mr. LEWIS.—There seems to be some difficulty between some of the hon. gentlemen who support
the Bill and some of the hon. gentlemen who hold the situation of Judges in the Inferior
Court of Common Pleas. Some hon. gentlemen have a prospect of being elevated to the
offices of Judges in those County Courts, but my hon. friend from Northumberland and
myself are not in that position—we expect to be lowered down from the position we
formerly occupied. Notwithstanding this, if this House can rightly and justly pass
this Bill, and the Dominion of Canada pay the Judges, I shall support the Bill, for
I think it is required by the country.
Mr. SMITH.—I assume this Bill will pass, for I think any measure the Government may bring forward
will be agreed to by this House. I do not think it proper for the Provincial Secretary
to state here what he would do, and what he would not do, for the purpose of making
a reputation for himself, for that will not avail in the interpretation of a statute.
What a man will do and what he will not do does not affect the construction of a law.
We have to look at this Act as it is, and not to any proposition made in regard to
it. The hon. member from St. John (Mr. Wilmot) says he made a proposition that County
Courts should be adopted in this Province, and this was agreed to by the Delegates
; but the Attorney General seems to disagree with him, for he says there was something
said about County Courts, but he does not recollect of anything being said about bringing
in a law to constitute them. The Provincial Secreatry's memory is better ; he states
that it was discussed elaborately and fully, and it was understood we were to bring
in an act to constitute those Courts. He insinuates I am advocating the interest of
Canada, while I had charged him with pursuing that course. I am not advocating the
interest of Canada, but I am giving a fair construction to an Act according to the
language employed. One hon. member says that constituting these Courts is no departure
from the agreement made, and another hon. member says it is a departure from that
agreement and we cannot justify it. This is the position we are in, and in the conflict
of these statements we must look at what the law says. Neither the spirit of the law
nor the letter gives this Legislature
authority to appoint new Judges in new Courts. It is said that the General Government
will pay those Judges, but they must not forget what the people of the country will
have to pay. You constitute four Courts, and have a Jury of ten for each Court, and
all those Jury fees will have to be paid by the country. When the Attorney General
tells us that the administraion of the criminal law will be borne by the people, I
am strengthened in my opposition. The Sessions will still continue one of the institutions
of the country, and that Court must have a Grand Jury and a Petit Jury. We will have
eight Courts in the country for the people to keep up. The payment of the Judges by
the General Government is no object, for we will have to pay the Juries and keep up
all the expenses. I believe there is no necessity for a law establishing four additional
Courts, with a panel of ten Jurymen to pay, besides travelling expenses. If there
is a failure of public justice in the country, and the people call loudly for some
change in our judicial institutions, then let us make such change, but there is no
such call for establishing those County Courts, by which additional burdens are imposed
upon the country. We have now to pay $6,000 a year as Jury fees, and this sum will
be vastly increased when we establish these additional Courts. In regard to patronage
; I suppose the Provincial Secreatry, if a lawyer, would not take one of these Judgeships,
for he has higher aspirations ;—he wants to establish a reputation for Ottawa—he expects
to get an office there with twelve hundred pounds a year. Still, he has some little
interest in this matter ; he sees friends around him who have fought with him side
by side ; he sees professional men who could undoubtedly adorn these Courts ; and,
when about to leave them, he feels it his duty to do something for them. He tells
us that for every office he has had five applicants.
Mr. SMITH.—You said what meant it. The Secretary, like myself, will probably run his election,
for we both seem to have Ottawa on the brain, and when he is taking leave of his friends,
whom he has promised so much—
Mr. SMITH.—Have you not promised them some of these Judgeships ?
Mr. SMITH.—Have you not received applications for those offices ?
Mr. SMITH.—No doubt but they were written by good men, for there are some
104 DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867.
men in our County for whom you ought to do something.
The Secretary has higher aspirations and expects higher emoluments, and he will make
this Bill subservient to his purpose ; he will make it a kind of agent to increase
his popularity. It covers a great deal of ground, and it will require the best intellects
of the country to fill those positions. I think this Bill will assist wonderfully
to keep the waters running smoothly throughout the Session. I have no doubt but the
Government will be strengthened by the fact that this Bill is before the House, because
some of their supporters see a chance of coming in for some of these offices, or for
getting them for their friends. I was surprised to hear the Secretary tell us that
he had not promised any of these offices and had but two applications for them. I
understood him to say there would be twenty- five applications.
Hon. Mr. TILLEY.—I did not say there would be twenty-five applications. I said as a general rule
there would be five enemies made for every appointment.
Mr. SMITH.—You said there would be five applications, and there being five offices that would
make twenty-five. When the Secretary talks of his desire to serve his country, I wonder
that he, having been in public life so long, should just at this present time have
discovered that it was necessary to make such organic changes in the jurisdiction
of the country. I am not going to occupy much time, for I see hon. members from the
rural districts where there is no failure of justice are going to support the Bill,
therefore I feel it is vain for me to oppose it. Notwithstanding, I will raise my
voice against it, for I want the people of the country to understand that I opposed
it. I think when you come to discuss the details of the Bill you will find them very
defective, and I may have something to say in regard to them, but I shall not now
occupy the time any further.
Mr. DOW.—I presume I cannot be accused of selfishness in supporting this Bill, as in all
the provisions of it there is no provision for a doctor, for all the offices are to
be filled by lawyers. I am not going to make a speech, as I have, for numerous reasons,
always made it my rule in this House to let legal gentlemen manage legal Bills, and
form my opinion upon the arguments used. Still, professing to have a little judgement
in regard to what the English language does mean, I do think there could be no possible
reason for the Delegates passing a resolution to pay the Judges of County Courts if
they did not expect us to establish them. I am proud to hear my hon. friend (Mr. Smith)
say, when speaking of the young men of the Province, that they by
their capacity, energy and education are
able to cope with the statesmen of Canada. I was proud to hear him say so, when he
pointed to the Provincial Secretary as going to have a large appointment there ; I
was glad to hear it, though I have no intention of "soft sawdering" the Provincial
Secretary. The ex-Attorney General put a good spoke in my wheel for supporting this
Bill when he stated the General Parliament had to pay these County Court Judges, and
they ought to have the patronage of appointing them. I am not willing to go into that
Confederation unless New Brunswick has the same advantages which Canada has. They
have District Judges in Canada, and we will have to do our share in paying those Judges,
when we have not had the patronage of appointing them ; why, then, should they have
the patronage of appointing ours ? After they are appointed, we will go into Confederation
with the same privileges they have. These Courts have worked well both in Great Britain
and Canada, and I can see no reason why they would not work well here. I believe they
will be a great benefit to the country, and will simplify and cheapen the law.
Mr. BECKWITH.—I intend to support this Bill, and I believe we have the perfect right to appoint
those Judges, and I believe it is consistent with all honor, fairness and honesty
for us to exercise that right before we go into Union. I believe from my experience
that these Courts are necessary to the proper obtaining of justice in all parts of
New Brunswick. In the Supreme Court the  Judges are overworked, in consequence of
the number of small causes that come before them. In many cases, where debts of ÂŁ15
and upwards are due, the creditors consent to suffer loss sooner than have to pay
the enormous costs in collecting them in the Supreme Court. The business in the Courts
is much greater than when the number of inhabitants in the Province was but 90,000,
and we have not increased the number of Judges in proportion to the increase of population
and the increase of business to be done. More facilities for obtaining justice are
required, therefore it is necessary to establish these County Courts, to relieve the
Supreme Court from the trouble of dealing with many of those petty causes which now
take up so much of their time. The Juries in these County Courts are to be reduced
to five, and this will reduce the expense. I see, upon looking at the Schedule of
Fees, that upon every cause entered for trial that there is a Jury upon there is a
fee of one dollar and three dollars to be deposited on entry for the trial of the
cause. This makes four dollars to go towards paying the Juries, and we know that a
great many causes are
entered that never go to trial ; therefore, this fund will defray a large proportion
of the expense connected with Juries. The Supreme Court could then take charge of
important causes which require first-class lawyers and heavy fees, and the Judges
can take the necessary time to come to an accurate decision ; but now, from the multiplicity
of causes, they cannot devote the necessary time required to do ample justice to all
classes of subjects. It is not in consequence of the measure coming from the Government
that I support the Bill, but it is because I believe it is required by the country.
Mr. JOHNSON.—It is my impression that the Judges can decide better after hearing the arguments
than they can by waiting two or three days to come to a decision. My hon. friend (Dr.
Dow) said he did not wish to go into Confederation upon worse terms than Canada. I
never wished it, either, and I did all I could to prevent it. The question is not
whether we wished to go in upon better terms, but upon what terms did we agree to
? The Hon. Provincial Secretary has failed to convince me with regard to the construction
of this, and the hon. member for Westmorland (Mr. Smith) has failed to convince me
of the impropriety of these Courts. I am favorable to District Courts and the principle
of the Bill ; the only point I want to be satisfied upon is, Can I consistently, with
my view of this contract, vote for this Bill without feeling I am violating the agreement
into which we entered? The Secretary construed it one way and I a different way, but
we are each accountable to his own conscience and judgment when voting upon a question
of this kind. I am particularly satisfied that no member of the Delegation would vote
for this Bill if he thought it was not right to do so, and I know the Secretary is
desirous of doing what is right. When I hold a conscientious conviction—for the Secretary
has failed to convince me that this agreement would not be violated—I must stand back,
for I am not accountable to his judgment ; but I am accountable to my own conscience,
and standing here as one of the Delegates I entertain a very strong opinion upon the
subject. Both the Secretary and the hon. member from St. John (Mr. Wilmot) say that
a great deal was said about District Judges ; what agreement did they come to ? If
two men discuss a matter, and afterwards put it down in an agreement, which is to
be the contract, the discussion which took place or the writing which is the result
of that discussion ? A lawyer will tell you that you cannot take what is spoken, but
you must take what is written as the agreement. What was written in this case ?
DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867. 105
" The General Government shall pay the Superior, District and County Courts in each
Province."
The Provincial Secretary reads that to mean District Courts and County Courts are
to be created, but I read it as Courts then existing ; therefore, as we had no County
Courts in New Brunswick, no power was given to establish them. When we entered into
this contract Canada agreed to give us $60,000 a year beyond Nova Scotia. Suppose
we established County Courts here and called upon Canada to pay the Judges' salaries—
amounting to $6,000, or upwards,—they might say to us, We agreed to give you an additional
bonus under existing circumstances, but as you have largely increased the amount we
expected to pay you by appointing additional Judges, you will have to provide for
their salaries yourselves. If the General Legislature consider it is for the interest
of the whole people that County Courts be established it is in their power to establish
them by law, and then they will pay them. If I was afraid that the General Government
of Canada would seek to do injustice to the Province, I would never had consented
to have gone into Confederation. I always felt that the safety of the Province did
not depend so much upon the number of the representatives as upon having a party Government.
No Government could exist in Canada that sought to do injustice to any portion of
the empire. There will always be a healthy opposition, and if the Government attempt
to do injustice to any of the Provinces there will be a combination in that locality,
and they will throw their power into the Opposition, which will cause the overthrow
of the Government.
My hon. friend from Charlotte (Mr. Chandler) said he would rather submit a cause to
a Judge than to a Jury. I do not hold any such doctrine. You cannot tell me of the
country that lost its trial by Jury that did not lose its liberty too, for trial by
Jury is the great safeguard of the country. I think if the country requires these
Courts any additional trifling expense should not be considered. I am strongly in
favor of them, but I cannot vote for the Bill for the reasons which I have stated.
Mr. LINDSAY.—My hon. friend says we have a right to do a thing and we have not a right to do
it.
Mr. JOHNSON.—I said we had the power, and not the right. You have the power to knock a man on
the head, but you have not the right to do it.
Mr. LINDSAY.—It has been a question with me whether we had the right. Two powers cannot both
have the right to establish these Courts. The General Government cannot have the right
and the Local Government the right at the
same time. It has been stated that there was an understanding that we were to appoint
them, but that is poor law if there is no writing to show it. If these Courts are
established it will be a fine harvest for the lawyers ; there will be five additional
Judges appointed for these Courts, and then there is talk of another Judge for the
Supreme Court. This will make eleven Judges in all. Then there are five clerks to
be appointed, and they must be lawyers too. The Imperial Act of Union states that
the salaries of the Judges shall be fixed and paid by the Parliament of Canada. Here
we see the General Government has the power, and still the Local Legislature retains
it.
Mr. LINDSAY.—That is to say certain parties can do certain things and subordinate parties can
do the same thing. We find it stated in the Act that the Parliament of Canada may
provide for the establishment of any additional Courts for the better administration
of the laws of Canada. Then if we have not the authority to appoint these Judges,
and the Parliament of Canada will not pass an Act to constitute these Courts, we will
have to pay them ourselves. Each Judge will be a Judge of three Counties, and a person
would have to go a long distance to make an affidavit before him, and then have to
wait for the sitting of the Court before he could collect a debt. Then there is in
this Bill about a page and a half of fees to be paid. I do not know whether they will
increase the expense of the suit or not, but I know that it is very desirable both
for the plaintiff and defendant that there should be some means of collecting debts
without incurring such a large expense. I have always been in favor of increasing
the jurisdiction of Magistrates up to ÂŁ10, in order that less expense may be incurred
in collecting these small debts. After these County Courts are established the General
Sessions will still be in existence, and a Grand Jury will have to be called and a
large number of Jurymen for these other Courts, and this will increase the expense
for the country. I think these Courts will be just a harvest for the lawyers, but
when you come to go in opposition to them it is just like getting into a hornet's
nest. I believe about lawyers as I believe about doctors—that the less you have to
do with them the better you are off. They might be useful in their place, but I would
keep them at a respectful distance. I do not believe in these law shops ; some men
want to be appointed to be Justices just to make a living out of it. If you can get
the facts of a case out before four honest men you will get more justice done than
you will at any of the Courts, for there lawyers argue for the
purpose of mystifying the Jury and each
side tries to make wrong appear right. They only confuse the minds of the Jury instead
of helping them to come to a right decision. There is nothing in this Bill to show
where the jurisdiction of this Court commences or where the jurisdiction of the Magistrates
leaves off. It is stated that its jurisdiction shall extend to $200, but there should
be some provision made that it should have no jurisdiction over sums below a certain
amount.
Mr. HIBBARD.—I see a delicacy on the part of the lawyers in taking any part in this debate ;
probably they feel they might be prejudged in the expressions made use of. I am greatly
surprised that our Delegates, after remaining nine months in England, should come
out here and differ in regard to what is implied in this Act. It seems to me if that
difference of opinion had existed before they left England, they would have had it
reconciled. I ask, have we the legal right to act in this matter ? The ex-Attorney
General says no ; the Attorney General says yes ; therefore, I conclude, it is a mere
matter of opinion, and I have a right to express my opinion as well as these gentlemen.
I have read that Bill carefully, and I think we have a perfect right to establish
these Courts and appoint these Judges. I am glad to see my hon. friend from Westmorland
(Mr. Smith) opposing the Bill, for there are many weak points in it, and as a lawyer,
feeling as he does the great necessity, if it should be forced upon us, of having
it as perfect as possible, he will do all he can to point out its defects and have
it improved. If we do adopt these Courts I do not believe the General Government will
interfere with us, unless we are act indiscretely, in the number of Judges we appoint.
The question which we have to consider is, Does the country require these extra Courts
? I think it does. In the County of Charlotte we have a Court but once in twelve months,
and a man having a debt due him of $50 might as well lose it as to attempt to recover
it in the way we now have to recover debts. There may be some doubts about the necessity
for five Judges, or some differences of opinion about the number of Courts held in
the different Counties during the year. I think after we provide the machinery of
these Courts and are satisfied that they will meet all the demands of justice, if
the staff of Judges is too large the General Government will reduce it. We are to
pay our proportion of the Judges of Canada, as well as our proportion of our own,
therefore we have a right to enter this Union with as many Judges as our wants require.
I cannot agree with my hon. friend from Westmorland (Mr. Smith) that there will be
a great deal of extra expense in Juries, for I think there will be very little more
106 DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867.
money expended in the four Courts than there is now expended in one Court, and business
can be done in one quarter of the time. In our Courts there is always unfinished business
left, making it necessary to call special Sessions, therefore it becomes necessary
some provision should be made to meet it. If the mode proposed by the hon. member
for Westmorland is best let us adopt that mode ; but if not, then let us adopt this.
I have made up my mind that the country does require these Courts, and therefore I
shall vote for this Bill. I shall not do so because it is brought in by the Government,
but I shall support it from principle. I believe they have prepared this measure because
they believe the country demands it. I stated that when they brought in those measures
which were for the benefit of the country I would vote for them, but when they brought
forward measures which I considered injurious to the country I should vote against
them. I have asked nothing from them and I do not expect to receive anything. I believe
the constituency of Charlotte will acquiesce in all the provisions of this Bill. I
believe that it will be a more simple mode of recovering debts and will be attended
with less expense. The ex-Attorney General seems to think the Bill will pass whether
it is right or wrong, but I believe the hon. members around me will exercise some
degree of judgment and will not be in fluenced by any sinister motive to vote contrary
to the conviction of their own consciences. I do not expect to get anything out of
this Bill, and am not supporting it for any such motive, neither do I think other
hon. members are, but I do believe that those who have supported the Government in
a manly way are entitled to any favors which the Government have to bestow. I dare
say some of our legal members may have friends whom they would like to have fill these
Judgeships and I can see no impropriety in their being appointed, but I believe the
distribution of these offices require the most close scrutiny, and the best judgment
must be exercised, otherwise the Government will not strengthen themselves in the
appointments, but will make some friends and a great many enemies.
Hon. Mr. TILLEY.—My hon. friend says he cannot get anything out of this Bill. I think he can get
cheap law and cheap justice out of it for his constituents. My hon. friend from Carleton
(Mr. Lindsay) seemed to have an erroneous impression about the Bill. He says that
according to the Imperial Act the Judges are to be appointed by the Central Government,
therefore the Local Government could not appoint them, for it was impossible for the
same powers to be exercised by the Local and General
Governments. That position is not correct, for there are subjects on which they exercise
concurrent legislation, but it is not necessary to go into that now. When he speaks
of this Act of Union he speaks as if it was in force to-day. We are in the same position
now as we were last year, for we are not in the Union and we have all the powers we
ever had. Every power we could exercise last Session we can exercise now, and we can
fix salaries and appoint Judges now as well as we could then ; but after the first
of July this right ceases. Let us go further. We have not only the patronage now and
the fixing of salaries, but it is provided by the Act of Parliament that the Local
Legislatures shall have this power after we enter the Union. The Act says the Provincial
Legislatures shall make laws in relation to
"The administration of Justice in the Province, including the constitution, maintenance
and organization of Provincial Courts, both of Civil and Criminal jurisdiction, and
including procedure in Civil matters in those Courts.
These powers are left to our Legislature after the Union takes place. It is also stated
in the Act that the appointment of Judges and the fixing of their salaries shall be
in the hands of the General Government ; therefore the General and Local Legislatures
have this power jointly, and there will be no conflict of interest if we pass this
Bill.
My hon. friend from Northumberland (Mr. Johnson) says we cannot act upon conversations
held, but must enforce the written agreement. I admitted that, and showed that a certain
contract was made at Quebec in 1864, and then I showed that contract was changed in
1866, and it was not simply a verbal arrangement but a written agreement, showing
that a change had been made and declaring distinctly that we had power to constitute
these Courts. Possibly the hon. member was not paying any attention to me while speaking.
My hon. friend from Westmorland says he knows this Bill will pass because any measure
introduced by the Government would pass ; he saw the arguments were too strong against
the position he took, and the Bill would be accepted by the House, and, lawyer like,
when he gets in a weak position, he breaks from the point. He then turns upon the
Provincial Secretary, and speaks of his vaunting ambition and of the position he wishes
to fill. There was no necessity for this, for I was endeavoring to show that I had
no personal interest in the matter. He says, of course, he would not take one of these
Judgeships—he seeks for something higher ; he wants to get an office at Ottawa with
ÂŁ1200 a year, and he now wishes to reward some of his supporters and friends
and gain political strength and influence by it. If our appointments to office meet
the approbation of the public it will show that they were properly made, and we will
be more fortunate than our predecessors were in exercising patronage of this kind.
Then he goes on about the great expense thrown upon the country by establishing these
Courts and the payment of Jury fees, and that was his answer to all the arguments
in favor of establishing these Courts. Suppose they did incur additional expense,
what is that compared to the sacrifice that is made by individuals, because the administration
of justice is not speedy, thereby involving an enormous expense. In St. John the criminal
business is not through, and cases where witnesses have been brought from a distance
have been put off, causing great inconvenience. I know men who have debts of ÂŁ20 owing
them who would rather lose the money than go into the Supreme Court to collect those
debts, and so it is with thousands of people throughout the length and breadth of
the country. They have debts due them, but they will not go to the Supreme Court to
collect them because of the time taken up and the expense to be incurred.
Mr. SMITH.—The Provincial Secretary thinks it rather hard that I should speculate upon the
fact that he expects to go to Ottawa. It has been put forth through the country that
he is to be Finance Minister of the New Dominion, but he seems to be reluctant to
be told of the fact. Does he not aspire to that office?
Mr. SMITH.—He considers his motives more pure than mine.
Mr. SMITH.—He says he has no interest in the matter—what is his object in saying that ? Is
it to fall harmless upon the House ? He asserts that his motives are pure in order
that the House may take his advice. Cannot I say in answer to that, True, you cannot
expect an office in this Court, but you are looking for something higher, and you
can obtain support by means of this law to attain a higher position. Is not that a
legitimate answer to counteract the effect of his statement ?
In regard to our right to constitute these Courts, we find that when some of these
Delegates find the arguments too strong for them they leave the letter of the law
and fall back upon what was understood at conference. It is unfortunate these Delegates
should come out here and disagree among themselves in regard to what was done at conference.
The Secretary says I have abandoned my position. I have not abandoned my position,
but all the arguments I have advanced have been accumulative.
DEBATES OF THE HOUSE OF ASSEMBLY FOR 1867. 107
If we pass this Bill I think it will be disallowed, for the spirit of the Imperial
Act is that you cannot recast your judicial institutions. I say many provisions of
this law are in force now. I would like to ask whether the fiscal laws can be changed
?
Mr. SMITH.— I think you had better change them if you have the power. I think we have not the
power, but the Secretary seems to speak
ex cathedra in regard to the law, while the Attorney General does not. I should rather have the
opinion of the Attorney General upon the subject.
Mr. SMITH.—They did not pass any law in Nova Scotia upon the subject, and I do not believe
we have the power to do so, because I believe a port on the Imperial Act is in force.
When the Secretary speaks of men being willing to lose sums of ÂŁ20 rather than bring
an action in the Supreme Court, does he not know they can bring an action in the summary
process in the Spreme Court at a less cost than would have to be paid under this Bill
? I believe it would be more economical, and the wants of the country would be much
better satisfied, if we adopted my suggestion and increased the summary practice to
ÂŁ50 and combined the civil and criminal jurisdiction together.
Progress was then reported upon the Bill and leave asked to sit again.
Hon. Mr. TILLEY, by command of His Excellency the Administrator of the Government, laid before the
House despatches relating to Church patronage.
Mr. STEVENS brought in a Bill relating to paving streets and sidewalks in the Town of St. Stephen.
On motion the House adjourned until to-morrow at 9 o'clock.
T.P.D.
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