Legislative Assembly of Prince Edward Island, 03 June 1873, Prince Edward Island Confederation with Canada.

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.
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.


The Parliamentary Reporter of Debates and Proceedings of the House of Assembly. Charlottetown: Henry Cooper, 1873. Microfilm copies provided by the Prince Edward Island Libraries and Archives.



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