March 12, 1902 (9th Parliament, 2nd Session)


Benjamin Russell



govern the laws of all the provinces with the single exception of Lower Canada are the same, although there may be divergence in details, and it is gratifying to find on the part of the lower provinces a general desire to join together with Upper Canada in the matter and to procure as soon as possible an assimilation of the statutory laws and the procedure of the courts of all those provinces. At present there is a good deal of diversity. In one of the colonies, for instance, they have no municipal system at all. In another the municipal system is merely permissive and has not been adopted to any extent. Although, therefore, a legislative union was found to be almost impracticable it was understood, so far as we could influence the future, that the first act of the future government should be to procure an assimilation of the statutory law of all those provinces which has as its root and foundation the common law of England. But to prevent local institutions from being over ridden, the same section makes provision that while power is given to the general legislature to deal with this subject, no change in this respect should have the force and authority of law in any province until sanctioned by the legislature of that province.
If I had any fear that the project outlined in the motion now before the House should seem to any hon. member to wear an utopian aspect, that the discussion of such a motion should seem to have an air of unreality and visionariness, I should point to these words of a statesman, who, whatever may have been thought his failings and shortcomings, was never accused by his bitterest enemy of the crime of visionariness or undue ideality. Far from it, Sir, he was a politician of a practical character, as we all know, and, that, in the intenser meaning of the term. When so practical a statesman as Sir John A. Macdonald used the language I have quoted, he most undoubtedly anticipated that among the very first measures of the Federal parliament would be an Act to carry into effect the wise provisions of this section for securing the uniformity of our provincial laws. These were no mere idle words inserted in the statute to indulge the fad of some visionary dreamer, nor was this provision intended or expected to remain upon the statute-book sterile and unproductive for more than thirty years. Sir John A. Macdonald expected to see it acted upon among the first enterprises of the newly constituted union. AVhy has it remained for so many years a mere unrealized dream ? Why, is it that, so far from seeing it fructify in a useful and serviceable body of legislation, we have seen it remaining for so many years-the good third of a century-as lifeless in appearance, yet, happily as capable of being clothed with life and vigour, as those seeds we have all heard of that were found in the hands of the Egyptian mummy.
Well, it may be that the reasons are not so difficult to find. During the earlier years of our history as a union, there were many problems to challenge the attention of our public men and many tasks awaiting their

busy and weary brains. There were sectional claims and aspirations to be satisfied or appeased. There was a recalcitrant province to be pacified. If there were not racial antagonisms to be reconciled there were racial suspicions to be removed. There were vast material interests clamouring for recognition, an Intercolonial Railway, the seal and bond of union, to be constructed, canals and waterways to be deepened and enlarged, conflicting views of fiscal policy to be adjusted, and all the vast and varied concerns of a nascent political community to be harmoniously regulated and directed to a common issue in the welfare of the new Dominion. No very great effort of the historical imagination is required to enable us to understand why this subject was under such circumstances allowed for the moment to sleep. But I venture to hope that the time has at length arrived when we may at least begin to think seriously about the matter, and to that end I will ask the House to permit me to set forth in order the advantages that in my judgment may be expected to follow the accomplishment of this task. I may not enumerate them in their logical order or even in the order of their importance. I will present them in the order in which they have occurred to my own mind.
First, then, by rendering our legislation uniform we may avail ourselves to the fullest possible extent and on the widest possible scale of the improvements in legislation that have been effected by the mother country in recent years. Let me amplify this proposition by reference to an illustration that has been already used for another purpose. A number of years ago Mr. M. D. Chalmers, as he then was, attempted to I draw out and present in the form of a digest, a series of plain, perspicuous, intelligible propositions, embodying the legal doctrines and principles relating to the subject of bills of exchange and promissory notes-principles and doctrines which he deduced from the decisions of the courts extending over several centuries, running up into the hundreds and covering pages in the law reports that might be numbered by the thousand. In fact he has told us himself in an article in the * Law Quarterly Review ' that for the purposes of his work, whether the digest or the code that was subsequently founded upon it, I am not quite certain which, he read twenty-five hundred cases in the law reports and seventeen statutory enactments. His digest was subjected to the fire of professional criticism and was found to be an adequate and satisfactory statement of the law on the various points with which it dealt. After a trial of several years its various propositions were embodied in the form of an Act entitled ' An Act to codify the law relating to bills of exchange and promissory notes.' This was passed by the English parliament in 1882. It was, I believe. the first experiment in codification ever made by the Imperial parliament. It
was not absolutely perfect. It did not even approach as nearly to perfection as legal knowledge and skill in the lucid expression of legal principles might have made it. It had to run the gauntlet of two Houses of parliament, each containing a number of members who considered themselves better authorities on the matter than Mr. Chalmers, who had made the subject his specialty. But nobody could deny that it made the law more accessible and more certain, that it set at rest a number of debated questions and was on the whole a luminous exposition of the legal doctrines and principles relating to the subject with which it dealt. That it was not perfect has been admitted. It must be confessed that one of its sections gave rise to a protracted litigation that could not have arisen if it had never been passed, but the amount involved was enormous, the litigants were wealthy and the result of the litigation established a general principle applicable not only to this piece of legislation but to all similar codifying statutes that may from time to time be adopted in any part of the empire. It was as to the particular section in question in the case referred to that the draftsman of the statute was frank enough to quote against himself the remark attributed to Lessing when one of his disciples questioned him as to the meaning of a passage in one of his lectures. ' My young friend ' said the great philosopher,
' when I penned that passage, only God and myself knew what it meant, and now only God knows.'
The Bills and Notes Act was passed in England in 1882. Some years after it had been in force in the old country attention was directed to it in a series of letters in tlie ' Toronto Mail,'-the parentage of which modesty forbids me to disclose-and the government of Canada was urged to simplify and clarify the law for us in this country bv enacting the statute here. The inference from post hoc to propter hoc is not always conclusive and I have no means of knowing whether it would have any validity in this particular case. It is sufficient to say, and it is the only material thing for us to know that within a twelvemonth from the appearance of this publication the statute was introduced here and passed in 1890, with some very slight modifications to make it more in accord with the mercantile and banking usages that had grown up in this country. It has been accepted by the banking institutions as a great boon and the public spirit and unselfish scientific instinct of the legal profession has welcomed it with equal cordiality, although rendering the law more simple, ascertainable and accessible it has to that extent taken away their usefulness and reduced their emoluments.
Since the passing of the Bills and Notes Act, other experiments in codification have been made by the Imperial parliament. The law relating to Partnership and the law

relating to the Sale of Goods have been embodied in codifying statutes drawn by the most competent hands, and which before being adopted by parliament have gone through very much the same ordeal by which the Bills and Notes Act was tested and proved. The Sale of Goods Act was introduced in the Imperial parliament in 1888. It remained in process of incubation for five years and was not enacted as a statute until 1893. It also is not perfect. One of the most competent judges pronounces the Act as in parts by no means easy to interpret, and occasionally very obscure, but in justice to the learned draftsman he adds that the difficulties for the most part if not in all cases have sprung from additions and emendations introduced into the Bill in its passage through parliament. But in spite of its defects, which this parliament, with the ten years experience of the working of the statute could very easily avoid, it remains a useful and convenient statement of an important branch of the law of personal property. Now there are precisely the same reasons for the enactment of this statute in all those portions of the Dominion where the common law prevails that there was for the enactment of the Bills and Notes Act for the Dominion as a whole. None of the provincial legislatures, so far as I am aware, has yet adopted this enactment. It may be confidently predicted that several of them will sooner or later do so, and it may be eventually accepted by them all. Let us anticipate for a moment what in that case is most likely to happen. In every legislature there will be found some hon. members who deem themselves competent to improve upon the work of Mr. Chalmers. Some will amend one set of provisions, some another, and some a third. In place of a uniform code of law applicable to all the provinces in which the common law prevails and in relation to a contract as to which no conceivable reason can be suggested for any differences in treatment in any of those provinces, we may expect to see a variety of different statutes creating wholly unnecessary confusion in respect to a body of legal principles which might throughout the greater part of the Dominion so easily be made uniform, simple, intelligible and accessible to all who have occasion to apply them to the transactions of daily life.
My friends from the province of Quebec will, I know, be the first to realize the importance of the considerations that I have just referred to. Their studies enable them, better than many of us can, to understand the inconveniences of an anomalous jurisprudence and to appreciate the advantages that flow from its uniformity and simplicity. Their ancestors in the old land enjoyed in fullest measure the blessings of a jurisprudence untouched by the meddlesome fingers of the law reformer. They will re-catf the conditions described with such amplitude of learning by my hon. friend the Mr. RUSSELL.
member for Gaspe (Mr. Lemieux) in his work ' Sur les Origines du Droit Franeo-Canadien.' They will remember that Voltaire, referring to those conditions remarked, in his accustomed vein of satire that the traveller in France had to change his laws as often as he changed his horses. Sir Henry Maine has told us that at that time * France was smitten with the curse of an anomalous and dissonant jurisprudence beyond every other country in Europe. One great division ran through the country and separated it into 'Pays de Droit Ecrit' and 'Pays du Droit Coutumier,' the first acknowledging the written Roman law as the basis of their jurisprudence, the last admitting it only so far as it supplied general forms of expression and courses of judicial reasoning which were reconcilable with local usages. The sections thus formed were again variously subdivided. In the ' Pays du Droit Coutumier,' province differed from province, county from county, municipality from municipality in the nature of its customs. In the ' Pays de Droit Ecrit ' the stratum of feudal rules which overlay the Roman law was of the most miscellaneous composition.' I hope my friend (Mr. Lemieux) will, in the course of this discussion, show us how this condition of things has been improved upon by the labours of French jurists in the old country and in this, for I am well assured that such an exposition will powerfully reinforce the argument that I have been endeavouring to present. I cannot imagine that our friends from that province who have been lifted out of the horrible pit and out of the miry clay of an unreformed jurisprudence will permit their neighbours to continue floundering in the same Serbonain bog of * anomaly and dissonance.' They will sympathize with our aspirations after uniformity, consistency and simplicity and when we call for so easily accessible a boon ns a law to regulate throughout our provinces the formation, authentication proof, operation and discharge of a contract of such every day occurrence as the contract for the sale of goods, I will be surprised and disappointed if we do not have their cordial assistance and co-operation.
But the Acts that I have mentioned, the Bills of Exchange Act, the Partnership Act, and the Sale of Goods Act, do not exhaust the possibilities of improvement in the form of English law. A bill has been introduced for the purpose of codifying the law relating to marine insurance. It has not yet been passed and it ought not to be passed without the most mature consideration, but we may be well assured that a bill on this subject from the hand of Judge Chalmers or some other equally competent will eventually be enacted and that other branches of the law will from time to time be taken in hand and subjected to the same treatment that has been applied to the subjects that have already been so dealt with. Now,

it is of the highest importance in the interest of scientific jurisprudence, it is of the highest importance in the interest of simplicity, lucidity and certainty in the statement of tlie law that we should be in the best position possible to avail ourselves of the labours of the jurists of the mother country in this field, and that wherever a codifying statute has been proved by experience to present a lucid, correct and orderly statement of the law, we should be in a position to make it applicable to all those portions of the Dominion to the circumstances of which it is adapted.
But there are subjects upon which we do not need to await the action of the British parliament or to be dependent upon the labours of old country jurists. Consider such a matter as the constitution of joint stock companies, the rights of their individual members, the powers of the governing body, the protection of minorities, the authentication and proof of their contracts, the provisions for putting them out of business when they should no longer be cumbering the-ground, in other words their winding up and the distribution of their assets among their, creditors or stockholders as the case may be. Bet me ask the House if it would not be an inestimable boon to this country that upon these subjects there should be one simple, just and uniform series of provisions applicable not merely to companies incorporated under Dominion legislation, but to all companies throughout the Dominion so far as legislation by the combined action of federal and provincial authority can be adapted to the accomplishment of that result. On this and other subjects to which I shall not refer in detail I am entirely unable to anticipate what possible objection can be made to the proposal.
X have dwelt long enough on this aspect of the question. Let me refer to another of the advantages to flow from the adoption of this resolution. The wider the area over which a statute Is operative the sooner its meaning becomes settled and understood. No matter with what degree of precision the terms of a statute are drawn, its provisions must of necessity be more or less in need of interpretation. It is impossible for the draftsman of a statute to foresee all the possible cases to which its provisions are meant to be applicable, and equally impossible to anticipate with certainty the meanings that will be attributed to the form of words he has used. The meaning of those terms can only be settled by the results of the litigation in which the statute is invoked. Doubtless the original framers of the statute for the prevention of frauds and perjuries imagined that they were passing an Act the terms of which were plain, clear and intelligible, drawn up in language which, if not understanded of the people would be easily comprehended by the class of trained interpreters who would be called upon to advise upon or interpret its provisions. If these were indeed their expectations, how have they not been falsified by the event. If it was no exaggerat ed praise of that statute to say as one luminary whose name I cannot at the moment recall is reported to have said, that every line of it was worth a subsidy, it was certainly a valid retort to answer that every line of it had cost a subsidy.
If you will examine such a work as Professor Langdell's selection of cases on the sale of goods, a subject to which one of the sections of this famous statute specially refers, you will find, what I believe is equally applicable to every other important section of the statute, that there is not a single significant praise contained in it that has not given rise to at least a score of cases in the courts, and that some of its terms have required for their interpretation not less than sixty or seventy cases. It is upon facts like this that the objectors to codification base their arguments in opposition to that project. But in the absence of a statute the case is to say the least no better. The law of contract in its general outlines has been more free from the operations of the legislature whether for good or evil than any other branch of the law. Examine then if you please, some such work as Langdell's select cases on contract, and note how many years of litigation it required ; how many decisions of the courts were necessary to settle so apparently simple a question as the precise point of time at which a contract by correspondence becomes complete and binding on both parties by the communication of an offer, and its acceptance. You will find no less than twenty-nine cases massed by that learned writer upon this one topic. Those cases range over a period from 1789 to 1876, and after a hundred years of litigation Mr. Langdell was unable to answer one of the most obvious questions that could be asked and a question with reference to a contingency that might be expected to happen any day in the week. Even at this day, although one question that he could not answer has been settled since his publication by a later decision, two of the simplest questions that could be asked remain unsettled yet. It is not, according to the best text writer on the subject, regarded as absolutely certain that the rules developed for the regulation of contracts by correspondence apply in their entirety to communication by the telegraph, and two of the most widely accepted and authoritative text books present diametrically opposite opinions on the question whether the acceptance of an offer once committed to the post office can be recalled and cancelled by telegram before its actual communication to the person to whom it has been addressed. It is difficult to see on what grounds such a method of constructing a legal system can claim any

very clear superiority over tiie much abused expedient of codification. But the advocacy of this motion does not necessarily involve the difficult question of codification, and I should be sorry to have its success dependent upon my convincing the House of the feasibility and utility of codification. The point is that whether you depend for the development of your system of jurisprudence upon its evolution by the unaided operations of the judiciary or seek to hasten and give direction to its development by wise and sane legislation, you are still dependent to a greater or less degree upon the accidents of litigation for the principles of law that it will embody. The debt that jurisprudence owes to the individual litigant has never been adequately acknowledged. The quarrelsome citizen who goes to law with his neighbour may imagine that it is for himself, that he is spending his own money and destroying his neighbour's peace. Let that be his delusion. Or to speak more wisely, let him console himself whether successful or not in the immediate object that he may have in view with the consciousness that he has done the state some service, and more especially if he is a defeated litigant let him pocket his disappointment and allow his lawyer to pocket his fees, well knowing that he has made a contribution to the jurisprudence of his country, that far outweighs in its importance any momentary disappointment to which he has been subjected. In the vivisection controversy I remember having seen somewhere a reflection on the satisfaction that it might be conceived to afford to a dog that was being stretched upon the table of the vivisector were he only rational enough to understand and altruistic enough to appreciate the boon that his torments were destined to confer upon the human race in the alleviation of suffering and the prolongation of human life. The litigant who is stretched upon the table of the vivisector in this case is rational if not always altruistic and he should know the full extent of the consolations of which he may avail himself. The blood of the martyrs we are told is the seed of the church. In the same manner may we not say that the tears shed and the taxed costs paid by successive generations of suitors have been the gentle showers and stimulating manurance that have enriched and beautified that admirable jurisprudence in whose shadow we securely dwell.
But, perhaps the subject does not lend itself to either humorous or poetic treatment. Let me return to plain prose and cold-blooded common sense. The point I am endeavouring to make is that the wider the field over which a statute is operative, the more frequent the cases that arise calling for the interpretation of its terms, the more quickly the meaning of those terms is reduced to certainty, obscurities are cleared up. ambiguities are removed, and amendments adopted where found to be Mr. RUSSELL.
necessary for the elimination of inelegancies and the removal of Inconsistencies. Instead of each little jurisdiction groping about in darkness and uncertainty because of the variant provisions of the statutes and the impossibility of borrowing light from one another, you have the light of all concentrated upon the same difliculty, the learning and the wisdom of all directed to the same problem and a jurisprudence evolved which must of necessity be characterized by higher wisdom, broader learning and more perfect consistency and lucidity than it would be possible to attain in the absence of the uniformity of legislation towards which this resolution is directed.
Let me refer to one more advantage that I contemplate from the adoption of this proposal. A large part of the body of positive law actually operative in this country and administered by our courts of justice consists of principles of the common law of England which as colonists we are supposed to have brought with us to this country, and statutes passed by the Imperial parliament before we had legislatures of our own. But all the common law of England has not come with us to this country. Some of it has been ad judged unsuitable for exportation whether because it was too good for us, or because it was not good enough, it is not necessary now to inquire. And so as to the old statute law of England, while some of it has been held to be in force in the colonies, some of it has been held to be inoperative here. Conflicting decisions have been made in different provinces as to the extent to which it is operative on this side of the ocean. In my own province it has been decided that while the whole common law of England is in force there, excepting such parts as are obviously inconsistent with the circumstances of the country, no part of the old statute law will be received unless it is obviously applicable and necessary. Other provinces have adopted substantially the same criterion. But the question must always present itself how are you to determine and by what lights are you to determine whether a given statute is or is not obviously applicable to the conditions of a province of the empire. Every ten years or thereabouts some enterprising practitioner makes discovery of some ancient statute of the realm which he contends is applicable to the circumstances of the province and the rights of suitors are thrown into a state of uncertainty until the merits of the contention are determined. Let me be permitted to say that this condition of things is not worthy to be dignified with the name of law. It is not law. It Is the absence, the direct negation, of law ; nay, more, it is the antithesis of law. It is not cosmos but chaos. In the province of Ontario they have done better. They settled the question once for all by a statute, 32 George III., and I observe that a compila-

tion has been recently issued under tbe authority of the Ontario government, presenting among other things in black and white in authoritative terms all the statutes of the parent country which are in force in the province of Ontario. In so far as these statutes relate to property and civil rights,
I see no reason why the other provinces should not gladly follow the lead of Ontario.
I am convinced that so far as my own province is concerned we would thus clear up many doubts and solve some questions that have hitherto been simply insoluble puzzles.
A still further advantage that would without doubt result from the adoption of this resolution .would be the removal of anomalies and the correction of mistakes that occur to a greater or less extent in the laws of all the provinces. I would not care to detain the House with details in illustration of this point. I have had occasion in an essay that has been in print a number of years, to mention some illustrations under this head, and it will not be necessary to elaborate the matter further. It must be perfectly obvious that the moment a serious attempt is made to enact in the form of a statute a body of laws relating to property and civil rights for any considerable group of provinces, errors and anomalies must be brought to light which under our present system may go undiscovered for many years until some unfortunate suitor makes shipwreck of his estate and property because of their accidental discovery. The law relating to the consolidation of mortgages, for example, as settled by the jurisprudence of the equity courts, presented a case of possible injustice and surprise which called for .the intervention of the Imperial parliament in the Conveyancing and Law of Property Act of 1881. This amending Act has therefore been in force in England for over twenty years, but some of the provincial legislatures have not yet discovered the fact of its having been passed, or if they have discovered the statute have thus far failed to realize the dangers against which it was meant to provide. There are without doubt similar cases in several of the provinces that would be brought to light the moment a serious attempt was made to grapple with the subject.
One further consideration and I shall have concluded my presentation of the case. I should consider it far from being the least of the benefits that would flow from the adoption of this resolution, that it would help to eliminate from our jurisprudence one cause of conflict between Federal and provincial authority. The cases on the British North America Act are full of instances which go to show how difficult it is to draw the line with precision between the legislation with reference to property and civil rights which is within the competence of the provincial legislatures and that which trenches upon the legislative authority of this parliament. Several of our provincial legislatures have undertaken to pass laws which seem for all the world to resemble a bankrupt law. They have certainly been sailing very close to the wind, and although the statute has been sustained by the Court of Appeal in Ontario, it is not absolutely certain that the last word has been said. A generation that has witnessed the game of see-saw that has been played between the courts on this side and on the other side of the Atlantic on such subjects as the Manitoba school law, the liquor license question and the question of the fisheries, will not be too sanguine as to the finality of any settlement until the highest court has spoken, and after the last word has been spoken by the highest court it seems that the services of the interpreter may still be called for. In any event, it would surely be an obvious advantage that in as many cases as possible where the legislative authority is debateable the question should be set at rest, as it would be under the provisions of this section by the combined action of the Federal and provincial legislatures on all questions of property and civil rights throughout the provinces to which the provision applies.
I trust I have been able to convince the House that there is at least something to be said in favour of the motion of which I have given notice. I have not exhausted the subject, whatever effect I may have produced in that kind upon the House. I have not stated even in outline all the arguments that could be presented in favour of the motion. To sum up the question in a few words, there were, speaking broadly, three classes of subjects of legislation which by the British North America Act were to be parcelled out between the Federal parliament and the various provincial legislatures. On one of these classes of subjects the requirements of all the provinces are precisely the same, the legislation is properly uniform, and for that reason the authority to legislate is committed exclusively to this parliament, saving, of course, the veto of the sovereign. As to another class of subjects, it is conceivable that each and every province may require provisions peculiar to itself, either because of exceptional conditions or for the reason that in respect to them it is deemed advantageous to the public good that the direct and immediate control by the provincial legislatures should be retained. As to this class of subjects the plenary authority to legislate has for one or other of these reasons been committed, subject to the right of disallowance, to the provinical legislatures.
Between these extreme classes there is a middle class of subjects with respect to which one province and possibly more than one may call for exceptional treatment, while as to all the others there is no reason whatever in the nature of things why their^egis-lation should not be precisely the same. It is to this class of subjects that the provisions of section 94 refer, under which power

is given to this parliament to legislate for the purpose of rendering the system of laws of those provinces uniform, with the proviso that no such legislation shall be operative in any province until it has been ratified by the legislature of that province. Tne exercise of this power was confidently anticipated and assumed as a matter of course by some of leading spirits in the conference at Quebec. It was desired more especially, Sir John A. Macdonald has told us, by the lower provinces, which are the smaller provinces, and which one might have been inclined to fear would be a little jealous of their independence and inclined to retain it. The exercise of the power would, as I have shown, improve the body of our laws by giving us the benefit of those enactments upon which the law-reforming zeal and intelligence of the mother country have been engaged. It would render our system more certain, more intelligible and more accessible than it can ever otherwise become. It would result in the correction of dangerous mistakes and the removal of awkward anomalies. It would obviate a number of embarrassing questions of conflicting constitutional authority, and finally by conducing to the production of a harmonious and consistent body of jurisprudence, it would tend to realize that fitness for universal application which is the essential characteristic of anything that can be properly dignified with the name of law.

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