Mr. MOSS said that the provision had, ent feelings any proposal to facilitate the not been deemed incompatible with the extension of litigation on any parties who working of responsible Government in the had already obtained a decision on their Mother Country; and it was an argument, cases from our highest legal tribunalsquantum valeat, in favor of the provision tribunals which stood among the highest that it was contained in the measure intro- not only on this continent but in the world. duced by the right hon. member for Therefore there was not much publicsympaKingston. He confessed he had not been thy for measures tending to promoe additionimpressed by the arguments addressed to al litigation. The hon. member for Bothwell the House against giving the proposed in the course of his remarks thought that court any original jurisdiction. He did when "Canada He did when "Canada" was used in the Confedernot see any reason why exchequer business ation Act it did not include the Provinces shonld not be assigned to the court as pro- of Canada. He confessed that it appeared posed in the Bill. He agreed with hon. to him that Canada included all within members who had spoken during the the territory, just as much as Ontario indebate, that the proposed court would not cluded every county in it, and consequenthave too much to do. One objection made ly he could not see the force of that reason, was that the Bill would cause a change in because if the Parliament of Canada passed the practice prevailing in the different any Act that Act most certainly applied Provinces, and no lawyer liked to change to all parts of the country. the practice. But there was a tangible advantage to be gained in securing a similarity of practice in the exchequer businest. That was a class of business that peculiarly pertained to the Dominion, it was a branch in which the principles of the law were the same in all the Provinces, and, therefore it was desirable to secure uniformity of practice which could be best obtained by transferring this branch of business to the court which would be known as the Court of Exchequer. If after this debate the House should determine that it had power to pass the Bill, and that having the power, it was advis able to proceed with the enactment and constitute the court, he was satisfied that the best efforts of every hon. member would be directed to making the measure as perfect as possible.

Mr. MILLS-Do the laws of Canada mean the laws of the Provinces on the same principle.

Mr. WILKES said he did not draw that inferance, but the hon. member would find from the language of the Act that it did not say the laws of the Provinces but of the Parliament of Canada. As he read the Confederation Act, it provided that we might constitute, maintain and organize a Supreme Court; but he saw no provision in it whereby we could compel litigants to avail themselves of the court after the Dominion had provided it. We would then be in the same position as that of the famous King who provided a banquet and on inviting the guests they all, with one consent, began to make excuses. One of the advantages we possessed as British Colonists was this that, in common with Mr. WILKES said that, though a our fellow subjects in the Mother Country, layman, he need not apologise for offering we possessed an inherent right of appeal any remarks because the question of the to the SOVEREIGN. There was only one creation of a Supreme Court was one not mode by which that right could be denied necessarily Ministerial because it had been to us as colonists, or to HER MAJESTY'S proposed by the late Government, and subjects residing in Great Britain, viz :— was therefore a subject open to debate by by the co-operation of the House of Parliahon. members on both sides of the House. ment and by the Colonial Legislatures. He remembered the remark of a witty It was, therefore, within the power of the gentleman who said, that we, in Canada Dominion Parliament by legislation to had one good court, the Division Court, take away the right of appeal to from which there was no appeal. When the SOVEREIGN from her subjects in the Government proposed to establish courts of law in new Provinces and territories they had his hearty support, because it was necessary that the people throughout the Dominion should be protected. The public regarded, however, with differ

Mr. Moss.

QQ

Canada. Now, it might be said that right of appeal would remain notwithstanding the creation of the Supreme Court, but he submitted that the tendency of that court would be, in having a great deal of business before it, to encroach on

that right of appeal, and before many years, character, he always gave to it an amount were passed some Minister of the Crown might come down to Parliament and propose legislation which would deprive the people of that privilege of appeal to the British Crown. In the United States they had established a Supreme Court, and they had established one from great necessity, because they foolishly committed national suicide by their severance from Great Britain. No nation ever lost so magnificent an opportunity of developing constitutional government as the early colonies-now called the United States. What he desired to point out especially, however, was this that legislation of this kind, by whichever side of the House proposed, would tend considerably in that direction, and if it were proclaimed to the millions who would, before fifty years had elapsed, fill up this country, that the right of appeal to the SOVEREIGN had been taken away one of those links which bound Canada to the Mother Country would be broken. The establishment of a Supreme Court would entail a considerable expense upon the country, at least from $60,000 to $75,000 annually when the salaries of the Judges and other expenses have been provided for. He suggested to the Government whether it would not be desirable to retain this Supreme Court Bill for the adornment of future speeches from the Throne, which purpose it had served for many years.

Hon. J. H. CAMERON said the hon. member for Toronto Centre might as well ask the Government if they would not allow the Insolvency and the Insurance Bill to remain for the adornment of speeches from the Throne. There were some people, however, who would like to see the judicature of the Dominion placed on what they believed to be a proper basis. Every hon. member knew that the difficulties raised by the hon. member for Centre Toronto were difficulties existing only in his own imagination, and not such as were likely to interfere in any way with the Government Bill, for by an Imperial Act, passed in the 7th and 8th years of Queen VICTORIA, the right of appeal was expressly reserved to the Colonies. He regretted that the Ministers of Justice in the present and the last Government considered they had power to pass an Act of this character. When the hon. member for Bothwell discussed any question of a constitutional Mr. Wilkes.

of consideration and knowledge, and learn-
ing and judgment, that entitled him to the
respect of the House: but he (Mr. CAME-
RON) could not help thinking that his hon.
friend had gone astray on this question
when he made the admission, fatal to his
argument, that there would be an appeal
from any judgment given by a Provincial
Court on a law passed by the Dominion.
By that admission he gave up his whole
case, for he had in some way or other
mingled up matters connected with the
Federal system of the United States with
the Federal constitution of this country,
and did not see clearly the important
differences there were and the great dis-
tinction there was in the two systems, and
which had been pointed out by the late
and present Ministers of Justice in offer-
ing reasons to this House why this House
As he
had power to pass this measure.
admitted one part, he could not show any
ground that would justify the other part,
and the whole matter was placed in pre-
cisely the same position as it was in this
Bill.
Bill. It was a matter of the greatest pos-
sible importance; for questions would
arise not merely as to the constitutionality
of an Act of the Local Legislature, but as
to the constitutionality of Acts passed by
this Parliament. These questions would
come up, and had come up already before
various tribunals. We had at this very
moment two Supreme Courts of the
Dominion in two different Provinces,
giving contradictory decisions upon exactly
the same subject. The Supreme Court of
New Brunswick had decided in one way,
and the Court of Queen's Bench in Ontario
We had the
had decided in another way.
knowledge that at this moment any juris-
diction, never mind what that jurisdiction
might be, was capable of deciding upon a
law, whether that law is in the judgment
of that jurisdiction, a magistrate's court, a
higher court, or the highest court, a
matter within the jurisdiction of the
Province or not, and we ought to have
within ourselves some means of disposing
of such questions, that means as far as the
Government had been able to take it had
been adopted in accordauce with the way
in which they had adopted the English
We believe
Statute 2 and 3, William IV.
that although that Act was passed so long
ago as that period it had not been brought
into operation until it had been brought

of so important a character as 'that which might affect the title of property and the character and lives of so large a number of them. It should be a matter for the serious consideration of the Government whether it would not be advisable that further steps be taken, in order that any doubts that might exist should be clearly set at rest.

into operation for a statute passed by the Legislature of Canada. The Legislature of Canada had passed an Act twenty years ago which was reserved for the consideration of HER MAJESTY. When it came before the Privy Council the first idea was to refuse the Royal assent, and it was kept for a long time in abeyance. The Colonial Minister, and the Attorney General and Solicitor General thought that HER MAJESTY Hon. Mr. FOURNIER said he had could not give her assent, and the reason felt the force of the conviction entertaingiven was that any Minister who mighted by the hon. leader of the Opposition advise HER MAJESTY to assent would be and by his (Mr. FOURNIER'S) predecessor liable to impeachment because it interfered in office upon the question of jurisdiction. with the prerogative of the Crown. After Were there any doubts as to our wella great deal of difficulty had been experi- defined power to create such a court he enced this Act of William IV. was discov- would be the first to destroy the meaered, and the question was referred to the sure, but it seemed to him that notwithjudicial Committee, who after hear- standing the arguments of the hon. meniing the arguments of the law officers bers for Bothwell and Montmagny that it of the Crown decided that HER MAJESTY was not possible to have any doubts, espemight give her assent to the Act with- cially after reading article 101 of the out there being any danger of impeachment. British North America Act, which was The Act received HER MAJESTY's assent. sufficient to convince any one that we had and was now the law of the land in this the means for the creation of a general country as well, and large bodies of people Court of Appeal for all the Provinces. acted under it every day. We had the best The hon. member for Bothwell had made possible proof in the Judicial Committee a comparison between our Act and the of the Privy Council acting in the same Constitution of the United States, but way as the Supreme Court would, as the hon. gentleman was too apt to forget exactly the same words were placed in the many very important differences bethis Statute. By this clause the QUEEN tween our Constitution and that of the could send any question to the Judicial | United States. In the United States the Committee for consideration and report. principle was that the States were indeA difficulty arose in reference to the pendent and sovereign, whilst here the Privy Council's judgment being given Provinces were subordinate powers; and upon matters that had gone through the general and special powers that were not Courts of Error and Appeal; a very given to the Provinces, resided in the serious trouble arose upon that point. Federal Government. The 101st clause The law still stood upon the Statute stated that the Parliament of Canada. Book, and he had no doubt it would be may notwithstanding anything in this exercised just as fully as it had been Act, from time to time provide for the before. The matter now before the constitution, maintenance and organizaHouse was one upon which many persons tion of a general Court of Appeal for Canhad entertained grave doubts, and he could ada, and for the establishment of any adnot help thinking that it would be a most ditional courts for the better administraadvisable thing, in view of the entire tion of the laws of Canada. It seemed to settlement of these doubts, so that there him that this clause could not be read could be no uncertainty in the future that otherwise than meaning a Court of Appeal further power should be invoked from the from the existing courts of the time; and Imperial Parliament, either before or it would be a Court of Appeal for local immediately after passing the Act. It laws as well as for Dominion laws. If would be a very serious difficulty in the hon. gentlemen would refer to the Confederway of the administration of justice and ation debates they would not have the in carrying out our law, if any consider- least doubt in the mind as to the meaning able portion of the people entertained any of the article. The 34th clause of the reasonable doubt as to the propriety or Address to the QUEEN called for the estabauthority of Parliament in passing an Act lishment of a general Court of Appeal on

Hon. J. H. Cameron.

the Confederated Provinces.
no mention of Canada as distinguished
from the Provinces; and he considered
the right meaning was that the court
should have jurisdiction over the courts of
the Provinces. The speech of the hon.
member for Kingston at the Quebec Con-
ference clearly defined the meaning of the
clause, and the gentlemen all voted for it,
knowing that in spite of the difference be-
tween the laws of Quebec and the other
Provinces, we had the power of establish-
ing a Court of Appeal having jurisdiction
over their own special laws. At that
conference Sir JOHN A. MACDONALD said:
"There are many arguments for and
against the establishment of such a court,
but it was thought wise and expedient to
put into the constitution a power of the
General Legislature, that, if after full con-
sideration they think it advisable to estab-
lish a general Court of Appeal from all
the Superior Courts of all the
Provinces, they may do so." That

was

There was, Civil Law of Lower Canada in the esti-
mates he makes of it; but he need be.
under no uneasiness on that head. He
should not forget that if, at this day, the
laws of Lower Canada are so remarkably
well understood in HER MAJESTY's Privy
Council, it is because the code of equity,
which is a subject of deep study and
familiar knowledge among the members
of the Council, is based on Roman law,
as our own code is. All the eminent
Judges, whether in England, in the Mari-
time Provinces or in Upper Canada, are
profoundly versed in those principles of
equity, which are identical with those of
our Civil Code. Now, as to my own
personal opinion, respecting the creation
of that tribunal, I think that it is impor-
tant not to establish it until a certain
number of years shall have elapsed from
the establishment of Confederation, and
to make it consist of Judges from the
several Provinces; for this court would
have to give final judgement in causes pro-
of all the
nounced upon in the courts
sections. Neither can I tell what functions
and powers might be assigned to it by
the Act establishing it. Time alone can
tell us that; but I do hold, and the
spirit of the conference at Quebec indi-
cated, that the appeal to the judical com-
mittee of HER MAJESTY'S Privy Council
must always exist, even if the court in
question is established. He thought this
would answer all the objections raised on
this ground. Now, he believed that
when these two opinions expressed, at the
time the article was framed so clearly and
explicitly, declaring what it meant, were
on record, there could be no reasonable
doubt on the subject to-day. The hon.
member for Bothwell had argued that
there was very little necessity for having
uniformity in jurisprudence; that it
mattered not whether a case was decided
one way in one Province and a different
way in another Province. The hon.
gentleman forgot that the laws of
all the Provinces except Quebec
were almost similar.
similar. All over the
Dominion we had the same crim-
inal and commercial laws. In Quebec
the commercial laws were based principally
upon the English law, so that the laws on
most subjects were similar, and it was in
the interest of the public that there should
be but one interpretation of them, which
would be uniform. The hon. gentleman

the interpretation at the very moment the article was proposed, and it was considered sufficiently satisfactory to every one, and that it was the intention of Parliament that this court would apply to their own laws. But he believed it would take away every possible doubt as to the meaning of the clause by giving the views of Sir GEORGE CARTIER expressed in the same debate :—“Accordingly, when we have lived some years under the Federal regime, the urgent need of such a Court of Appeal with jurisdiction in such matters will be felt, and, if it is created, it will be fit that its jurisdiction should extend to civil causes which might arise in the several Confederate Provinces, because it will necessarily be composed of the most eminent Judges in the different Provinces, of the jurists whose reputation stands highest, of men, in short, profoundly skilled in the jurisprudence of each of the Provinces which they will respectively represent. Well, if this court is called upon, for instance, to give final judgment on a judgment rendered by a Lower Canada court, there will be among the Judges on the bench, men perfectly versed in the knowledge of the laws of that section of the Confederation, will be able to give the benefits of their lights to the other Judges sitting with them. I must observe to my hon. friend the member for Montmorency, that he disparages the

Hon. Mr. Fournier.

should also bear in mind that there was a special clause in our constitution for the assimilation of the laws of the Provinces. He (Mr. FOURNIER) referred to this to show that the whole spirit of the Confederation Act was to give the Court of Appeal jurisdiction over Provincial as well as Dominion laws. These were the most important objections made to the Bill. The other objections were to the details of the measure. The hon. member for St. John had objected to the procedure as being too long. That had been modified considerably. Writs of error and appeal had been dispensed with. All that was necessary was to furnish security, but security must always be given. The hon. gentleman had also objected to special jurisdiction on account of the inconvenience that would arise from it. It was true there might, in some cases, be inconvenience, but one decision would establish a precedent for hundreds which were arising in the various Provinces. The law should be the same all over the Dominion and interpreted in the same way. If we could arrive by summary proceedings at a means of settling this inconvenience we should do so. He believed the means proposed in the Bill would be found satisfactory. One of the gravest objections to this Bill was that it added another court to the tribunals of the country. There were, · however, reasons of the highest order for the creation of this court. Every day this Government was called upon to interfere in the legislation of the Provinces. Not a day passed without his being obliged to read over statutes of the different Provinces and pass opinions upon their constitutionality and legality. There was now an enormous mass of legislation which had been reported as ultra vires and unconstitutional. All these were on the statute books and would cause innumerable difficulties in the future. Parties acted in accordance with the provisions of Acts which might in future be declared void by the court when cases arising out of them were brought to trial. Such uncertainty as to what was, or what was not, the law should not prevail in our confederation. Were there only this in its favor, it would be a sufficient ground for passing this law. If we had an independent, neutral and impartial

Hon. Mr. Fournier.

court of this kind, it would prevent difficulties with the Provinces, some of which infringed on the rights of the Dominion, as the Dominion sometimes interfered with their rights. Under the present system HIS EXCELLENCY had the power to disallow the law, but could not do so without the advice of his council, whose advice was based on the opinion of law officers of the Department of Justice. The result, as might be expected, was not satisfactory. All the hon. gentleman, who had spoken on this subject, had lost sight of the importance of this Bill in that respect. He believed the Provinces would accept the court as suggested, because they entertained the same desire as this Government, to refer all cases of this kind to a tribunal whose decisions would be accepted by all parties. With reference to the objection urged by the hon. member for Montmagny, he (Mr. FOURNIER) admitted that under this Bill Quebec would not have as many Judges, as it was desirable she should. Still, the position of that Province, as the hon. gentleman had admitted, would be better under this law than by reference to the Privy Council of England. He foresaw that at a day not distant, the appeal to the Privy Council would end, and he would not be so anxious to have this measure passed. After January next, instead of an appeal to the foot of the Throne, as it was termed, we could only appeal to a Statutory Court in England. The hon. member for St. John had objected to the division of jurisdiction. He (Mr. FOURINER) was not favorable to it either. He believed it was just as well to give original jurisdiction to every court and give appelate jurisdiction to a larger number of courts. This system was adopted in the new Supreme Judicature Court of England. One branch of the court had original jurisdiction, and the other appellate jurisdiction. There was a great public interest in settling this question which had been so many years before the public, and every day they felt more and more the need of such a court.

Mr. BABY asked if the establishment of this court would have the effect of assimilating the laws of Quebec to the laws of the other Provinces.

Hon. Mr. FOURINER said he had merely pointed to the fact that there were provisions in the Confederation Act for