260
PARLIAMENTARY REPORTER. 1873
Mr. L. H. DAVIES did not think it
would be conducive to the ends of
justice that the appointmetnt of the
Judges of the new Courts should be
made by the Local Government. The
appointments of this kind, in the Dominion, are made by the Governor
General, and as the new Courts will
not come into operation till the first of
July next, there was no occasion for
any haste in making the appointments.
HON. ATTY. GENERAL said that it
was the duty of our Local Government
to constitute the Courts and appoint
the Judges.
HON. LEADER OF THE GOVERNMENT said he would prefer to have the
appointments made by the Governor
General of the Dominion, but it was
the duty of the Lieutenant Governor
in Council to make them. He did
not think the Governor General would
act upon a local statute in a case of
this kind.
Mr. L. H. DAVIES said it would be
much more preferable to have the appointment of the Judges vested in a
party having no party bias, or local
interests to serve ; but at the same
time, he did not not mean to say that
the Judges appointed by the local
Government would not be men of
ability, honesty, and integrity. He
was afraid party politics would have
something to do with those appointments, and for that reason thought it
highly improper that they should be
made by our local Government. If
the Governor General is to have the
power of making such appointments
after Confederation takes place, why
not vest in him the power to do so
under our present circumstances ?
Why should not the Governor General have the appointment from the
beginning, as well as the filling of
vacancies afterwards ?
HON. Mr. SULLIVAN thought it perfectly right that our Lieut. Goveror in Council should have the appoint
1873 PARLIAMENTARY REPORTER. 261
ment of the Judges of those Courts as
long as we remain a separate Province. The present Act comes into
force before this Island forms part of
the Dominion, and there is no reason
why we should not transact our own
business till we enter the Union.
After we become a part of Canada,
her Government will pay the salaries
of the Judges, and make all new appointments that may be necessary.
HON. ATTY. GENERAL said that the
Courts could not be established till the
Judges were appointed. When the
present Act does pass, the Courts are
not established till they are constituted
by the appointment of the Judges.
If we wish to reap the advantages of
the terms now offered this Island by
the Dominion, we must establish the
Courts by the appointment of the
Judges. Future appointments will
rest with the Dominion Government.
as, when Confederation takes place, it
will be a matter legally belonging to it.
Mr. L. H. DAVIES said that the
question for that hon. Committee to
consider, was, whether our local Government was more liable to be biased
by party motives in the appointment of
the Judges than the Governor General
in Council, in Canada, was. He was
of opinion that it would be a difficult
matter to get good, well-qualified men,
to accept those appointments. The
consequence of this would be that
gentlemen would be appointed who
are not as eligible as might he wished
for. He would, for the reasons he
had given, move that the words " Lieut.
Governor " be struck out, and the
words "Governor General of Canada"
be inserted in lieu thereof.
Mr. CALLBECK felt inclined to support the amendment. The Dominion
Government has rendered itself liable
for the payment of the Judges' salaries,
and, therefore, there was some reason
why they should have the appointments in their hands. Beside this, he
was of opinion that an appointment by the Governor General would be more acceptable
to people, because more free from party bias. Gentlemen connected with the Bar in
this Island, are not likely to be neutral in politics, and it is probable it will
always be so. The new Judges will have no paltry duty to fulfil, and should, therefore,
be well qualified for their work. Large sums of money will be adjudicated upon by
them. Gentlemen of high standing, good natural talent and ability, and quite free
from party bias, should be appointed to fill such responsible positions. There was
no necessity to appoint these Judges until we enter the Dominion ; the appointment
could, therefore, be easily vested in the Governor General, as it should be.
HON. Mr. HOWLAN said that the
Governor General had no control over
the Bill now before the Committee,
and no legal right to appoint the
Judges of the new Court, till we enter
Confederation.
Mr. LAIRD thought the Governor
General should have the appointment
of the Judges of the new Courts,
as the Dominion would have to pay
their salaries. The Judges should be
men above local politics, to a certain
extent, and not mere partizans, chosen
by the local Government for the time
being. It is just as well to begin
right as to end right. He noticed, the
other day, that the Bill provided for
their appointment by the Lieutenant
Governor in Council, but thought it,
at the time, a mistake on the part of
the framer of the Bill. It now appears
that this matter is to be snatched out
of the hands of the Dominion Government before the first of July comes
round. This is most unfair, just on
the eve of union with Canada. It is
not probable that the local Government would have thought of establishing these Courts
if we were not about
to enter the Dominion. It is now
262
PARLIAMENTARY REPORTER. 1873
only a matter of form to complete the
union with Canada.
Hon. LEADER OF THE GOVERNMENT.—The hon. Leader of the 0pposition thinks the Governor General
should have the appointment of the
Judges, because the latter should be
free from all party bias, and almost
angels, no doubt. What difference
would the fact that they were appointed by the Governor General of the
Dominion, make in the individual so
appointed ? The Government of New
Brunsmck appointed their Judges
just before entering Confederation, and
when the union took place, the Dominion Government paid the salaries.
The Governor General may decline to
act upon our Local Statute if he
chooses to do so. As far as his (Mr.
P's.) own feelings were concerned, he
would sooner see the Governor General make the appointments, but it
was the legal duty of the Local Government to do so. The latter had
supporters among legal gentlemen
just as competent and able to fill
places on the Bench as any one who
supported the Opposition. The lawyers who support the present Government are not greater
partizans than
those who support the Opposition.
One would suppose from the remarks
made by the hon. member for West
River, just now, that any lawyer who
did not support the present Government was an angel, without question.
The Government conceded everything they could reasonably concede to
the Opposition in the division of the
districts and location of the Courts,
and supposed that in return they
would receive their fair and honest
support in reference to the other
matters contained in the Bill, instead
of a factious opposition, such as they
had given. If the Opposition chose to
prolong the discussion, he was prepared to sit there till the Bill was
passed.
Mr. L. H. DAVIES said that the
Bill could not be carried as brought
down by the Government, as there
was just as much opposition given to
it by hon. members on the Government side of the House, as by the
Opposition. There was no intention
on the part of the Opposition to offer
a factious opposition to the Bill.
Mr. LAIRD said there was no need
that the Bill should go into operation
immediately, as had been intimated by
some hon. members on the Government side of the House ; because the
country should have some warning of
the change about to be made. There
was no need for haste in reference to
this matter on the part of the Government, except to suit some particular
party purpose they may have in view.
As we were so near Dominion Day,
the appointments should be vested in
the Governor General, in order that
they might be made independent of
local politics altogether.
Mr. CALLBECK thought it would
be quite time enough to set the new
machinery in motion when proper
Court Houses were erected in the
several districts, The Act was not
likely to give satisfaction till some
preparation was made for working the
new system.
HON. COL. SECRETARY was
of opinion that it would be unconstitutional to invest the power of making
the appointments of the new Judges in
a Government that has no control over
the Island. The Governor General
would not be bound by any Act this
House might pass before going into
Confederation, in reference to this
matter. It would be all very well for
the Governor General to make the
appointments if we were in the Dominion ; but nothing the House could
now do, would bind His Excellency in
Council to make them before we become a part of the Dominion.
1873 PARLIAMENTARY REPORTER. 263
Mr. LAIRD considered that unless
the Island went into Confederation, it
would not be desirable to put the new
Courts into operation at all. If anything occurred to prevent our forming
a part of the Dominion, he would not
like to see the Bill become law. Immediately alter we enter the Union,
the Governor General would have the
power of making the appointments if
they were not previously filled. There
was no need to appoint the new
Judges before the first of July.
HON. MR. HOWLAN asked whether
it was to be supposed that the Governor General knew more about our
Barristers, or was in a better position
to make a good selection from their
ranks for the new Judgeships than
the members of our local Government. If the power to make the appointments were vested
in His Excellency the Governor General, he would
require information from some source
before he could make them. To find
a Barrister of five years' standing who
has not taken a part in party politics
would not be an easy matter. Where
is the lawyer of five years' standing
who has never made a stump speech ?
It was only fair to presume that the
local Government are, at least, in as
good a position to select a good Judge
as the Governor General and Dominion Government. The former are
better acquainted with gentlemen of
the legal profession in this Colony.
The whole action of the Opposition,
with reference to this matter, is a complete farce from beginning to end.
HON. Mr. SULLIVAN thought the
amendment proposed by the hon. jun.
member for Murray Harbor was as
absurd as anything that could be imagined. The hon. member thinks the
Governor General in Council should
have the appointment of the new
Judges before they have any power
over our Colonial affairs ! It would
be altogether illegal for them to make
them, and the result of vesting the
appointment in them would probably
be that they would treat it as a nullity.
The Courts must be established before
we enter the Dominion, in order that
we may reap the advantages to which
we, as a Colony, are entitled; and to do
this, the Judges must be appointed.
The question was then put, and
the amendment lost. The original
clause was agreed to. The next clause
was then read.
Mr. L. H. DAVIES said that in all
similar Bills in the other Provinces
and Great Britain, Barristers of seven
years' standing were required to fill
the positions of Judges. In fact, this
was the lowest standard. The
principle was a good one, and would
commend itself to every hon. member
of the House. He would, therefore,
move that the word "five" be struck
out of the clause, and the word "seven"
inserted instead.
Mr. LAIRD seconded the motion,
and said that he could not understand
why the standard of qualification for
the office of Judge should be made
lower here than anywhere else.
The question was then put and the
amendment lost.
After some further consideration,
other clauses in the Bill were adopted
without debate.
The Speaker then took the chair,
and the Chairman reported progress,
and obtained leave to sit again.
House adjourned till ten o'clock today.
I.O.
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