jurisdiction to that court over matters exclusively within the powers of the Provincial Legislatures, by the British North American Act. On the contrary, he believed that having once constituted and organized the court, and that court being maintained by us, they had nothing more to do, and the legislative powers were exhausted. It remained then with, and belongs to the Provincial Legislatures to determine in their respective Provinces what class of cases under civil law can be submitted to that court. Any other interpretation of the British North American Act seems to me a serious interference with their Provincial rights. He submitted these remarks in justice to his Province, but in a most friendly spirit, and with all the respect he owed and the confidence he reposed in the hon. framer of the Bill, the Minister of Justice. He (Mr. TASCHEREAU) trusted that the hon. gentleman would give them the consideration which he thought they deserved. Mr. MILLS said he purposed to invite the attention of the House to the provisions of this Bill relative to the appelate jurisdiction to be given to this court. It was proposed to embrace many things which in his opinion it should have no jurisdiction over. He said this with considerable diffidence, because not only the Minister of Justice, but his right hon. predecessor, entertained a different opinion. It seemed to him (Mr. MILLS) that under the section in the constitution relating to this question, no such jurisdiction could be conferred. In a preceding section provision was made for the constitution of the various courts, not only for the administration of the laws of Canada, but also for the administration of the laws of the Provinces. In this section provision was made for the administration of the laws of Canada if it should become necessary to establish courts specially for that puopose. The word Canada occurred three times in this section. In the first it referred to the Parliament of Canada, and no one would suppose that the term included the legislative functions enjoyed by the Provinces as well as the functions exercised by the two branches of the Legislature here. The word was used the second time in reference to a Court of Appeal for Canada, and the third time it referred to the better administration of the laws of Canada. What was to be understood by Mr. Tusche'eau. this expression? Did the "laws of Canada" include not only the laws enacted in the Federal Parliament but also those of the Local Legislatures? It seemed to him no one would for a moment say it could have that meaning. The word Canada was used in every instance for the purpose of defining some other word or expression. It seemed to him that this expression "a general Court of Appeal for Canada" meant a Court of Appeal having cognizance of questions arising under the legislation of this Parliament and not on any question that might arise under the jurisdiction of any one of the Provinces. What was the design of this section? Under a Under a sort of partnership arrangement the Local Legislatures constituted the courts and defined their jurisdiction and the Government of Canada had the power of appointing Judges. There might be such a thing under this arrangement as Local Legislatures refusing to make provisions for giving effect to the laws of Canada, and the power was retained to Canada, notwithstanding the previous provisions of this Act to establish besides this Court of Appeal such additional courts as might be necessary for the better administration of the laws of Canada. What was the object of the Court of Appeal? Was it that the laws in New Brunswick should have precisely the same construction as those of Ontario? Not at all! The New Brunswick law did operate in Ontario. people of New Brunswick were satisfied with the construction put upon the laws of that Province they would administrate them as construed; if dissatisfied their Local Legislature would change the law to suit their wishes. Therefore there was no propriety in giving to the law in New Brunswick precisely the same construction given to the local law in Ontario or any other of the Provinces, but that did not apply to the law of Canada. It was of very great consequence that the laws of Canada operating over the entire Dominion should receive the same construction in all the Provinces. In order that they might receive an uniform interpretation, where interpretations were given, it was necessary there should be a court of final resort for determining the construction of Canadian Acts of Parliament. It seemed to him for that this court was intended. It was said by the Minister of Justice If the with that declaration. He thought they would admit it was a sound interpretation that wherein any fundamental law a general principle was laid down, and there were exceptions to that principle, the general principle should receive a large construction and the exceptions should be strictly construed. Mr. FREEMAN said :— On Two requisites seem necessary to constitute separate existence vanishes." that if it was intended to make this Court of Appeal for Canada alone, the word "general" would not have been embraced. Without this it might have been in the power of a Government dissatisfied with the administration of the laws in a particular Province to establish a Court of Appeal for that particular Province. This section prevented that, and provided that any Court of Appeal established must be general. It could not be a Court of Appeal for a particular class of cases in New Brunswick, and not a Court of Appeal, for a similar class of cases in every other Province as well as New Brunswick. In this respect it was the same as the third article of the United States Constitution. There it was stated the United States should have power to vest judicial functions in the Supreme Court, to embrace matters affecting the States as well as the Federal Government. This was construed to apply over the entire territory, and cases growing out of legislation, either of Congress or of particular States, should be appealed to that court. But this was a special provision of the Constitution of the United States. There was in our Constitution, however, no special arrange-antagonism to this general principle. He ment by which a particular case growing out of the Provincial law could be brought before this court. This was a court not for the Provinces, but a general Court of Appeal for Canada, and it could not be seen in this section how the word Canada was used. It was meant to embrace the entire Dominion; but only those subjects lying within certain limits. It no more applied to the existence of legislative functions of the Provinces, than if the Provinces and the powers which they possessed had no existence whatever. The preamble of the British North America Act declares that our union is to be a union on a Federal basis. As some hon. gentlemen had charitably accused him of too great attachment to American authority, he would not quote an American authority but a very high English authority-Mr. FREEMAN. It would be remembered that although the United States might serve as an example of Federal Government, it was not the only Federal Government in existence; and when our constitution said the union was to be on a Federal basis a construction must be put upon it that would render it consistent r. Mills. considered the Federal principle of the general principles and particularly to depend upon those who have decided cases before them. If a court were called upon to decide under a law, with the administration of which it was not familiar, it would as a consequence lay down general principles the bearing upon which it did not foresee. This would be precisely the position of this Appelate Court. It would be established at Ottawa, and composed of members of the bar, some of whom would have no pratical knowledge of the administration of the laws of the courts; and before them would come lawyers who were in the same position. Then there was another objection as to which members of the bar could speak more accurately than he could, but he believed that Judges that had little to do would become rusty in their profession, and would be precisely in the same position as a retired lawyer. Those courts had ever been the most successful in the administration of the laws who had constantly to interpret, construe and give effect to them. Under this Bill cases would be taken from local Judges, who knew all about them, to Judges who did not know anything about the circumstances and principles of the administration of their laws; and on this ground as a matter of politics and pratice, it was objectionable. Let him suppose an ejectment case taken in appeal from the Court of the Queen's Bench at Toronto to the Supreme Court at Ottawa. Would they be likely to be more competent in construing the law than the Ontario Judges. If they overturned the decision of the local courts, and if the country agreed with the view of the local courts, sympathy would be felt at once, and there would be an endeavor in Ontario to amend the law and to give it the construction that had been put upon it by the courts of their own Province. It was of very great importance to the country to have cheap and speedy notice. We should not put it into the power of the rich man to worry the poor man with constant appeals, but that would be done by this Bill. It would be better that there should be an occasional misinterpretation of the law than that its administration should be made slow and expensive. He thought they ought not to give appellate jurisdiction to this court with regard to local matters, because in doing so they would seriously interfere with the speedy administration of justice. He would Mr. Mills. beg to call the attention of the House to a few observations on this matter by a very high American authority during the discussion of the question of the establishment of their courts. Mr. WEBSTER said : "In the first place, it appears to me that such an intercourse as the Judges of the Supreme Court are enabled to have with the profession, and with the people, in their respective circuits, is itself an object of no inconsiderable importance. It naturally inspires respect and confidence, and it produces a reciprocal communication of information through, all the branches of the judicial department. This leads to a harmony of opinion and of action. The Supreme Court, by itself is in some measure insulated; it has not frequent occasions of contract with the community. The bar that attends it is neither The numerous nor regular in its attendance. of counsel, come for the occasion, and depart gentlemen who appear before it, in the character with the occasion. The profession is occupied mainly in the objects which engage it in its own domestic forums; it belongs to the States, and their tribunals furnish its constant and principal theatre. If the Judges of the Supreme Court, therefore, are wholly withdrawn from the circuits, it appears to me there is danger of leaving them without the means of useful intercourse with other judicial characters, with the profession of which they are members, and with the public. But, without pursuing these general reflections, I would say, in the second place, practice the operation and effect of their own that I think it useful that Judges should see in decisions. This will prevent theory from running too far, or refining too much. But further, Sir, I must take the liberty of saying, that, in regard to the judicial office, constancy of employment is of itself, in my judgment, a good and a great good. I appeal to the conviction of the whole profession, if, as a general rule, they do not find that those Judges who, decide most cases decide them best. Exercise strengthens and sharpens the faculties in this more than in almost any other employment. I would have the judicial office filled by him who is wholly a Judge, always a Judge, and nothing but a Judge. With proper seasons, of course, for recreation and to his official duties; he should be omnis in học. repose, his serious thoughts should all be turned There is not, Sir, an entire revolution wrought in the mind of a professional man, by appointing him a Judge. He is still a lawyer; and if he have but little to do as a Judge, he is, in effect, a lawyer out of practice. And how is it, Sir, with lawyers who are not Judges, and are yet out of practice? Let the opinion and common practice of mankind decide this. If you require professional assistance in whatever relates to your reputation, your property or your family, do you go to him who is retired from the bar, and who has uninterrupted leisure to pursue his relf to him, on the contrary, who is in the midst readings and reflections, or do you address yourof affairs, busy every day, and every hour in the day, with professional pursuits? But I will not follow the topic further, nor dwell on this part of the case. of This will give suitors all the Provinces the right to appeal to the Supreme Court here, but in the larger Provinces they could first go through their own courts of intermediate appeal, giving them an additional Court of Appeal. He con These were the opinions of a very high Council. authority, which were in perfect accord with the views that have been expressed with regard to the policy of this law. He thought it would be a very great mistake for the Minister of Justice to persist in retaining in his Bill the provisions conferring upon this court appellate jurisdic-sidered it a fatal feature in the Bill, that tion in local matters, and taking away from those daily engaged in the construing of such law, and who had been trained to it, and putting the cases under the final supervision of those who did not belong to that system, and who were utter strangers to it, and like lawyers out of practice. Sir JOHN A. MACDONALD inquired if the hon. member for Bothwell held that if a Provincial Court decided inter partes in a local question, whether that question arose under a Dominion or a Provincial Statute, whether it should be based on a Provincial Statute. Mr. MILLS said that if based upon a Dominion Statute there would be an appeal. Mr. IRVING said the question was one that was surrounded by peculiarly complicated features, but still he thought it was one which should be discussed by practical men, who were endeavoring to give to the country such a measure as it required, though owing to its importance nobody supposed that a question which had engaged the attention of the Imperial Parliament for many years could be satisfactorily disposed of by us in one session, and even when it had finally passed this Parliament he thought experience would show that many changes and amendments would be necessary. The thought the result of many years' study of this question in England had been that if possible there should be one set of courts of primary jurisdiction and one of final and conclusive appellate jurisdiction. There were other features which to his mind which should be embraced in the plan and which might ultimately be attained, and which he thought were great points to have in view. One was to leave to to the Provinces their own courts of primary jurisdiction, and after that we should build up a Supreme Court, while the Provinces shonld be content to abandon and abolish their own courts of intermediate appeal. The two larger Provinces stood alike in regard to courts of intermediate appeal, but he believed the other Provinces had no such courts, and from those courts there was an ultimate appeal to the Privy Mr. Mills. For it did not compel the courts of any of the Provinces to come to this court but left it optional with them, or to go direct to England—a course which he thought would not be satisfactory to the people. It would simply be making additional expense by giving an additional Court of Appeal if it were not made compulsory to come to that Court. Then, with respect to the extent of business. Suppose that the Supreme Court of Appeal could attract to it the appellate business, wholly irrespective of the intermediate Courts of Appeal, it still would not have sufficient business to occupy the whole year. the past four or five years the average number of days during which the Court of Error and Appeal in Ontario had been occupied was twenty. In some years the number was fifteen, in others as high as thirty-one or thirty-two, but the average, including days on which the court sat to gsve judgement, would not exceed twenty days. In Quebec he was told by the hon. member for Jacques Cartier that the average sittings of the Appeal Court was fortyfive days-so that the whole appeal business of those two Provinces would not occupy more than sixty-five days. He did not now refer to the other Provinces whose business was necessarily small. But the Supreme Court could not draw that business. The only business which we expect to find attracted to this court was that which at present goes to the Privy Council in England which was a mere bagatelle. a mere bagatelle. In Ontario during the last four or five years only two cases had been carried to England and looking back on the last twenty-five years the hon. member for Cardwell would not be able to count more than eight or ten appeals to England from Ontario. the Provinces of New Brunswick and Nova Scotia, taking the evidence given by the member for St. John there was scarcely ever an appeal to England. In the Province of Quebec he admitted that the case was otherwise, but was the sole object of creating a Supreme Court to hear the few In we had already courts which were doing the business of the country very efficiently, we should to some extent, auxiliarise that judicial strength in order to launch the Supreme Court. We were all very much in the habit of praising our own possessions; but he believed it was conceded that the bench of Upper Canada, running over the last thirty or forty years, had been an extremely successful bench, one originated almost by a handful of men who by great ability, assiduity, and great knowledge of their profession had earned for the bench of Ontario a character and weight which it would take many years to efface, even should the bench fall into weaker hands, which he did not anticipate. Even though the hon. members for Quebec did not speak always in terms of eulogy in regard to their bench, still he thought he had sufficient knowledge of it to say that there are men on that bench who would be an ornament to any bench of any country, and whose services the Dominion might well enlist on cases which would otherwise be sent to England? If so the business would be very trifling. And we did not even yet know whether we would be able to catch all the business that now crosses the Atlantic, for it would be almost as easy to go by stcam vessel over to England as to come to Ottawa. Then it was proposed to establish a court with six Judges who were all to reside at Ottawa. He would not speak further as to the amount of work that would have to be transacted, he would only say that the extract read by the hon. member for Bothwell represented very clearly his ideas on the subject. He could not, however, imagine a more dismal spectacle than would be afforded by six melan choly men living in this city endeavoring to catch an appeal case, which, but for this Act, would have gone to England. They would become rusty and relapse perhaps into a state of barbarism; they would lose their professional knowledge and the result would be that the court would be such a one as not to command the confidence of the bar, or respect of the people generally. an occasion of this kind. He had now given his objections to the It would be prudent to limit the number jursdiction of the court as a Court of Ap- of Judges appointed to one or two, who peal, and he would now venture to point would be Judges of the Supreme Court out his objections to the constitution of only, and certain Judges of other Prothe court. He agreed partially with the vinces should be utilized in assisting these remarks of the hon. member for Bothwell Supreme Court Judges. He would not with respect to the necessity of the Judges particularise the Judges of any particular being in constant intercourse with the bar Province; but in order to deal with the we cannot have a bench unless we have a bar. question in a statesmanlike manner, when The hon. member for Cardwell and other there was no business to begin with for the leading members of the Ontario bar, the Supreme Court to transact, he thought the hon. member for Jacques-Cartier, the Government ought to take into it all the hon. member for St. John and others, judicial talent and ability of the country, would come to Ottawa by one train, argue even if it could only be done in a tentative their cases, and leave by the next train. way for a few years. If that idea should The bench would not be known to the meet with the approval of the House, he bar generally, ard it was absurd to sup- had no doubt the Minister of Justice pose that the members of the bar would could elaborate a plan which would prove congregate here. The leading members of acceptable to the House generally. He the bar were to be found at Montreal, objected to jurisdiction being given to a Toronto, Halifax and St. John; and it Court of Exchequer. There was no neceswas impossible to attract men to towns sity for it, no quantity of business likely to where there is no businsss. While the be brought before it; and as the Provinhon. member for Bothwell pointed out ob- cial Courts already discharge those duties, jections to the Bill, he did not offer any it was desirable that the Provincial Courts solution of the difficulty. He (Mr. IRV- should be strengthened by making as much ING) did not know whether he would be of them as possible, by confirming to them able satisfactorily to do so, but he would the jurisdiction that attaches to them, and make the attempt, as the hon. Minister of not remove from them any part of the Justice had invited the co-operation of business, such as Excise, Customs, or Post hon. members with a view to obtain a | Office. He objected to the Exchequer perfect measure. His view was that, as Court-the name was an objectionable Mr. Irving. |