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1 2 3

^?o)

$iou$e of Commons debates

FOURTH SESSION -SIXTH PARLIAMENT.

SPEECH OF HON. EDWARD BLAKE, M.P.,

ON THE

JESUITS' ESTATES ACT.

WEDNESDAY, 30th APKIL, 1890.

Mr. BLAKE. I cannot say, Mr. Speaker, that
it was any source of gratification to me to le.irn
that such a motion was to l)e made iis that which is
now attracting the attention of the House, nor am I
certain, that any good results will flow from a re-
newal of the discussion upon the Jesuit (juestion.
In the observations I am about to make, altliough
as hon. members will perceive, I am obliged to
differ from some of the views which have just been
expressed by the hon. Minister of Justice ; and I
dare say also, to differ from some of the views of
gentlemen with wliom I usually act ; I do not
desire to say a single word, in a sense which might
aggravate any feeling of bitterness which may
exist throughout this country with reference to
this subject. I have felt from the beginning,
that the question should be treated by those on
cither side who take opposing views, in a spirit,
which I am sorry to say luis not animated a great
many of those wlu) have acted on the lines of tlie
non. member for North Norfolk (Mr. C^harlton).
I have felt that it was a question which was preg-
nant with grave and important issues, and I do
not deny in the slightest degree, the right, and
even the duty, of those who feel as tliis gen-
tleman did, to raise and to agitate it ; I believe,
however, that it should have been raised and
agitated in a diflf'erent tone and in a different
si)irit from that which many of them ha\'e evinced,
ir any good results -were to ensue ; nay, rather,
if great calamities were to be averted. The ques-
tions which are immediately before us do not,
I think, justify any severe motion of censure on
the (lovernment, nor do I think the motion of the
hon. member for North Norfolk (Mr. Charlton) is
to be considered as such a motion of censure, but
ratheras an expression of opinion adversi; to tlie view
which the (iovernment adopted in tliis matter.
Although I do not think the circumstances would
justify a severe motion of censure, yet there are
questions of higli consequence involved, upon
which there well may be differences of opinion,
both upon an important constitutional point
which the hon. Minister of Justice has advanced
to-night — as he advanced it before in some of the
State papers which he has produced upon this sub-

V?<^X^

ject — and also upon a point which is certainlj' dis-
putable, but I think, also, of greater practical im-
portance. That is the (iiiestion of political exiiedi-
eney, in the high and proper sense of that term, tlie
((uestioii of policy, wliicli is at issue between the
hon. member for North Norfolk (Mr. Charlton) on
the one hand, and the Administration on the other.
Now with reference to the constitutional point.
I am unable for my part to accede to the full
extent, to the argument made by the hon. Mii<ister
of Justice, as to the effect of the action of the Exe-
cutive during the currency of the twelve months
within which the power of disallowance may be
exercised, or to his view that this power cannot,
after a declaration of a contrary opinion, be exer-
cised during the twelve months with reference to a
Provincial statute. The hon. Minister of Justice does
not indeed deny that what he calls the bare power
of disallowance continues. It would, I think, be
absolutely impossible to affirm that that power liad
been blotted out. The law gives tlie power to the
Executive to disallow at any time within twelve
months from the receipt of the authentic announce-
ment of the sti'uUte, and the power is therefore ex-
ercisible, at any period short of the expiry of the
twelve ■ onths. There is no power whatever to allow
a statute. The I'rovincial statute derives its force
and vitality from the assent of the Lieutenant
(iovernor of the Province. It is, if in the power
of the Province, valid, operative and living from
the hour of that assent, and it requires no other
allowance in order to give it operation. There
is no right in the Executive of Canada to assume
to allow it at all. The right of the Executive
of Canada is purely of a destructive order : it
can destroy, but it (-annot give validity ; it can
obliterate by exercising the power of disallow-
ance, but it cannot vitalise by its approval. If
tliat be so, and if the Constitutional Act awards
to the Executive an authority to exercise their
jiower up to the expiration of the twelve months,
no prior expression of opinion on the part of
the Executive, however positive, as to the valid-
ity of the Act, as to its expeiliency, as to its being
such as ought not be disallowed, can alwplii|o1v take
away all right and authority to dijjiifow wiOfWthe

PROPERTY
OF

LAKEflEAO
^UNIVERSITY,

twelve months wliich the law ami the eonstitixtion
give. Sir, 8apj)oL,e (luring a meeting of Parliament,
while the people's rep.-"""" Natives are here assem-
bled, the twelve months not having yet expired,
that a motion is placed in your hands, Mr. Speaker,
or on the Notice paper, for an Address to His Ex-
cellency paying liim to disallow a particular local
statute ; and suppose that during the debate, or be-
fore i,ho notice is reached, the Executive, anticipat-
ing the period of or the termination of the debate,
should exercise their rjght to pass pn Order in
Council declaring that in their opinion the Act ought
to be left to its operation ; could such a course as
that thwart, annul or affect the power of Parliament
to express its opinion by Address, requesting His
Excellency to exercise his power to disallow ? Why,
the very circumstance that there are twelve
months within which this power can be exercised,
and that there must be, according to the law, a
session of Parliament withiii twelve months,
secures always to tliis Parliament its right, if it
chooses, to intervene effectively in these matters.
The Parliament of the country has a power not
merely to approve and to condemn, but it has also
a more important power with reference to every
political and executive act — it has a power to
advise. An approval may be gratifying to some, a
condemnation may be gratifying to otliers, but
neither the approval nor the condemnation of an
accomplished act serves any purpose save that of
criticism. The power of advice is the great power
of Parliament, a power to be exercised with re-
serve, but to be maintained in efficiency ; and to
preserve effectively that power, it is necessary that
we should deem that it has not passed beyond the
domain of Parliament to advise within the twelve
months, no matter what the Plxecutiv^e may do,
whatever action in the opinion of Parliament,
the interest of the country requires. It is of
very little use for Parliament to say to
Ministers, who have decided that they tliink
an Act ought to be allowed : " Gentlemen, we think
you are wrong ; we condemn you ; we censure you. "
Are we to be told that if the twelve months still
remain unexpired, we may condenm the Adminis-
tration, forsooth, but the Act must remain opera-
tive ; that we cannot make our advice effective ;
that we cannot take a step which will cause that
to be done which the great council of the country
decides in the interest of the country ought to be
done ? The power of Parliament itself would be
thwarted by the proposition of the hon. Minister
of Justice. I admit that there may be cases in
which a great local convenience may be demon-
strated to exist in favor of an earlier expression of
opinion on the part of the executive as to the
character of a local act ; tliere may be such cases
of public convenience as distinguished from party
convenience. I have known a good many curious
things to happen in connection with this question
of disallowance. I have known a case in which,
from motives of party convenience, a Lieutenant
Governor held back a Provincial Act for months —
aye, I believe for years — just in order that its fate
might be left in doubt, it being inconvenient
for the Federal Executive at tlie moment to deal
with it as it intended ultimately to dea' with it.
I have known, on the other hand, a case — I was
myself an actor, I may say a victim, in it^in
which while a motion was on the Order paper for
an address to His Excellency, for strong reasons

assigned, praying tluit he would not exercise the
power of dis-illovance with reference to a Provin-
cial statute, that motion being, for some little time,
delayed by the exigency of otiier business, a day or
two before it was reached, the Executive acted and
disallowed tlie statute ; and when I rose, instead of'
making my motion, I had to say; " This motion
luis been anticipated by the Executive doing in
tlie interval, between the time the notice was
placed on tlie paper and the time when it
could come on, the act which I proposed wo should
pray His Excellency should not be done ; and,
tlierefore, I have no motion to make. " S') I sjiy
we have seen strange tricks played with reference
to the exercise and non-exercise of tliis power of
disallowance, for the purpose of party conveni-
ence. ]}ut I admit that jmblic, as distinct from
party convenience, may indicate that early action
is important ; and where it does ; and when the
Executive takes the re8ponsil)ility of coming to
a conclusion in advance of the expiration of the
time, I admit that tlie utility of coining to such a
conclusion would be greatly weakened if it were
understood that after all the conclusion meant just
nothing at all — if it were understood that the ex- .
ercise of the power of the Executive after that time,
within the twelve months, should be absolutely free,
should be deemed proper, otherwise than under
very exceptional ciioumst.',nces. But I hold tliat
the hand of the Executive is not so absolutely
bound, but that the occurrence of some exceptional
circumstances, the development of some new state
of facts, the creation of some new ilescription
of policy, a change of the administration, per-
chance, with all its effect upon the politics of the
country, should entitle the Executive, under special
circumstances, to execute tlie duty and power of
disallowance for which the constitution gives
twelve months, at any time within that period.
The power remains. In this particular case. Sir,
the decision was reached at a very early time,
absolutely and relatively. The hon. gentleman has
said, that in looking over the records of the past
twenty-three years, he finds some twenty cases in
which the power was exercised earlier. As com-
pared with the total number of cases in which
the decision of the Executive has been reached,
twenty cases are almost an iniinitesinial propor-
tion. In this case, I think it would have been
wiser to liave deferred the decision. I agree that
that is a question on which opinions may differ.
But my own opinion was, as it is now, that it
would have been wiser to have deferred, at any
rate not to have anticipated it. The first mutter-
ings of the storm were even then audible ;
the Lodges were even then moving ; some peti-
tions had been sent in ; other petitions were cir-
culating ; the public ferment had commenced and
was increasing ; and Parliament was about assemb-
ling ; when the acticm was taken. It was possibly
taken in the hope that such decisive action, as it
is now 8t,ated to be, would quell the incipient agi-
tation ; that the Government supporters, at any
rate, throughout the country, would no longer,
seeing the matter was decided, press their objec-
tions ; and that many people would say, to quote a
homely proverb, "it is no use crying over
spilt milk." If that were the idea, it turned
out to be a very mistaken idea, because it
was not the conception of the pepple at
large that within the period of twelve mouths

tho

this decision was final or fatal. It was their con-
ception that circumstances niiglit still he brought
forward which wouhl render it ])roper for the
Executive lo take, and at any rate for Parliament
to advise, that action which the Executive had, so
far, tliought fit not to take. I thought, then, and
I think now, that it would have been the wiser
course to have waited, and to have allowed the
subject to be ventilated more fully and freely be-
fore taking action. The ventilation has taken
place, notwithstanding the action ; and it has
taken placeall the more violently for the attemi)ted
re])re-tsion ; and in a way and at a time which nave
greatly coinplicated the difficulties of the country.
So much with reference to that point, and to the
various positions which appear to be taken by the
hon. Minister of Justice upon it. Without attempt-
ing a criticism in detail of tliose papers of his, to
which I iuive referred, Imaypoint out one blemish in
the hon. gentleman's statement, which, I think, he
himself will concede exists, in that part in which
he is adverting to this point, and is accunudating
objections which he conceives to exist to tlie pro-
position that the right of disallowance may be ex-
ereis' i after the announcement that the Act is
thought unobjectionable. He says, that on that
assiunption even the Supply Hill of a Province
could not be safely acted on until the expiration of
the year, by which time the supplies Wfuild
have lapsed. The hon. Minister of Justice foi'got
for the moment that the effect of disallowance is
only to annul the Act from the time of the disallow-
ance, and not from an hoxjr earlier, and that what-
•ver may have be(!n done under the Act up to that
time is well done. He forgot that moneys can be
paid under a Supply liill with peiiect safety up to
the hour of disallowance, and that tlicre is not
the slightest difficulty in acting upon a Supply
liill, even although in every case the Administra-
tion of the Dominion were to determine that tliey
would never pronounce upon a Ir.cal Act luitil the
expiration of the twelve months, c.d were then to
disallow the Supply Bill ; and I will prove the
case to you. In an early year in the Puvinceof
Ontario, a Supply Bill was passed >v\iich contained
one objectionable provision, invo^'ing tlie payment
of a permanent extra allowance to the judges of
the Superior Court of Ontario, of some thousands
in all. The hon. the Minister, of Justice of that
day, the present First Minister, decided that that
provision was so objectionable that it nnist go,
The then Attorney General of Ontario, a toler-
ably firm, not to say an obstinate man, as the
First Minister knows, decided that it shoidd
not go by his consent. What did the Minister
of Justice of that day do ? He stayed his hand;
he allowed all the supplies to be paid ; he waited
. until after the lapse of the twelve months, of
which the Minister of Justice of this day speaks ;
and when all the supplies had been paid, the
Act remaining vali(l all that time, then he
disallowed it. And that clause which contained
the provision for the payment of judges in future
years, went with the rest of the Act. But the
payments were all made, and well made ; and the
trifling inconvenience w'.iich the Minister of Justice
of this day suggests would arise, is found by
practical experience to have no existence what-
ever. The hon. gentleman suggested that we are
to suppose the case of an Act autliorising the bor-
owing of njoney. I say if there is an Act authoris-

ing the borrowing of money, and if money is
borrowed under that Act, an<l if, after that borrow-
ing has taken place, the Act is disallowed, wliat
had been done under it remains valid. Tlie Kirst
Minister shakes his head, but it is ])crfectly plain
I am right. Su))i)f ^e a Provincial Act, authorising
a loan, suppose the bonds of the l*rovincc given for
it and the money received, will anybody seriously
ct)ntend that the act of the Minister of Justice and
the Privy ('ouncilof the Dominion, occurring later,
annulling tliis Act, woidd render the loan void ?

It would destroy tlie

Sir JOHN THOMPSON.

security.

Mr. BLAKE. No ; the security is in existence ;
it is made ; it has passed ; it is issued ; and I
deny that the disallowance of the Actw(ml<l destroy
the security. I admit, however, that if there be an
Act authorisin'r the constructi(jn of public works,
of which, as i- a'most all cases, cnly a part can be
accomplished witliin the time, the disallowance of
the Act would theoretically cause inconvenience, as
people might be averse to inidertake such contracts,
not being (juitc sure whether they woidd be allowed
tofinish tlie work. But such inconveniences are more
theoretical than practical ; for, in the vast bulk of
cases in which there is provincial legislation, there
never is any (jucstion, or risk, or doubt, about dis-
allowance at all. It is <<nly in view of excepticnuil
cases that the doubt and difficulty — the sluulow of
doubt — as to disallowance at all exists. In the
great and increasing bulk of cases, and I hope and
trust the nund)er and proportion will swell more
and more as the years go by, an Act, when passed
ijy a I'rovincial Legislature is and will be felt to be
at once as sound and free from attack by the act of
the Executive of the Dominion as if the twelve
months had elapsed. Therefore, I maintain that
the power of disallowance remains ; and may, if the
good of thiscountrj' renuires that it should be exer-
cised, be exercised at any time witliin the period of
twelve months, and that no jiremature determina-
tion of the Executive, as to what they think is
right or politic, can alisolutely divest them or
their successors, or the Parliament of the country
from the obligation and the power to do right,
until the jieriod given by the statute ffir action has
expired. These conditions, I conceive, existed on the
present occasion, a;.d it was (juite competent to this
Parliament to rexiew the decision of the Executive,
and to come to a conclusion, one way or the other,
as to whether this Act should orsliould not be dis-
allowed, notwithstanding the Order in ("ouncil.
I aver that this Parliament retains within the
twelve months that power, even after the Exe-
cutive has acted ; but I agree that it is a power to be
exercised only under exceptional circumstances.
As to the princii)les upon which the power of dis-
allowance should be exercised, with reference to
statutes which are n/tra riri'i, on the ground
that they are n/fra rires, I stated my views only
the other day, and I pointed out that, although the
cases might be rare, cases there were in which it
was agreed that nlfra rives Acts might properly be
disallowed on that ground, and I have thought
always that this statute came within that category,
and that, if n/fra riren, it sho\ild have been disal-
lowed. I do not enter on the constitutional objec-
tions which have been taken to the statute in times
past, and which have, to some extent, been re-
peated to-day by my hon. friend from North Nor-

folk (Mr. C'luu'ltoii). Indt'od, after his frank
statciiKiiit, ])i!rliai)8 iiot highly c()iiij)liiiH'ntai'y to
tliiH ('liaiiil)fi', that tlicre were not to he founil
in it twenty men who eoulil deeide reasonahly well
whether the statute was constitutional or not, I
came to the conclusion tiiat it would lie of very
little use to argue this (juestion, and I came to this
other conclusion, I must admit, that wliatcvcr else
my lion, friend might have established, oi' failed in
cstahlisliing, he had satisfactorily ))i'oved this at any
rate, that he was not one of the twenty. I say that I
do not enter into these constitutional objections, of
which, one was the (juestionwhether theActoH'cnded
against the OSrd section of the Hriti.sh North
Amei'ica .\et — an objection Svhich I thought not well
founded, and which, if any weight attac'lied to it at
any time, has been, as the lion. Minister of Justice
has said, solved. I thought, and still think, that
the other objections were cijually unfounded. If
I had thought diircrently, I certainly would have
voted diil'erently from the way in which 1 voted
last Session ; but, thinking as I did, and as I do,
that the Act was intra rircs of the Legislature,
I would, under like circumstances, repeat the
vote I gave last Session, I gave that vote in the
belief tliat it was a sound vote in defence of the
Canadian constitution, and in defence of Pro-
vincial rights and liberties, a vote which in my
opinion was eminently safe and beneficial for all
the Provinces, and especially safe and beneficial
for, however unpopular it might be amongst, my
own fellow-countrymen of the Province of Ontario.
Hut, while this was and is my opinion, I also
thought, before that Session closed, that there
ought to have been, under the circiim.stanccs, an
cflf'ort made to refer to judicial authoi'ities the
decision of these legal points. I did not believe it
was well that we should, in the conditions of this
question as they existe<l during that Session, and as
they became more obviously a])pan-entas the Session
went on, assume to conclude this (jucstion finally by
our own judgments. I referred the other day —
and, I admit, with reference, with obvious refer-
ence, to those very ccmditions — to that state of pub-
lie opinion and to those agitati(ms which, in my judg-
ment, would render it highly proper and expedient
to refer legal (juestions of this kind to a judicial
tribunal. Those conditions, I believed then,
and I believe now, existed in this case. As I
stated the other day, it is not necessarily decisive
against such a reference that the Executive or the
Parliament, or both, should be of the opinion that
the law is intra riren, and tiiat they should even have
decided, that pending the reference, they will
treat it as intra virKn. I'liat state of things does
not at all necessarily preclude you from adopting
the view that it miglit be wise, and politic, and
expedient, and in the public interest to obtain a
judicial solution of the legal (|uestion. I think that is
very obvious ; and I conceive that it is not necessary
now to do more than to refer to certain precedents
wliick have occurred. In the New Brunswick
school question, what was the course pursued ?
The Executive decided that the New JJrunswick
school law was infi'a vires of the New Brunswick
Legislature. This Parliament decided, by a very
large majority, that it was intra riren of that
Legislature. In that case, then, you found the
Executive and the I'arlianient both declaring that
it was iiifi'a fires, and both declining to exer-
cise the power of disallowance ; but at the

same time, you found the Legishiture deciding,
and the Executive concurring, in the decision to
olitain tho view of high judicial a.ithorities as
to whether that Act was intra rires or iiJtra riri's,
I read, the other day, the views expressed by lion,
gentlemen opjiosite, then in otiicc, though the
decision was arrived at aniler a moti<m of my hon.
friend from East York (Mr. Mackenzie), as to the
piopriety of referring that (picstion to the .Judicial
(/'ommittce of the Privy Council or the law ollicers.
At that time, I need hardly say there was no
Supreme Court. Then, again, in the case of the
Li((Uor License Act, there was an Act passed by
this Parliament under the aus])ices of gentlemen
opposite. The Executive believed it to lie a legal
Act ; the House believed it to be a legal Act ; and
expressed that view by large majorities. The
House supported the Executive in the view that it
Vins a wise and beneficial as well as valid Act. Yet
the Executive proniote<l at the instance of the House
a measure to refer that A ;t, which was believed
both by the Executive and the Hou.se to be legal, to
the judieialauthority to ascertain whether it was legal
or no. So I prove by these two cases, by the ])rac-
tice and the views of lion, gentlemen ojiposite, that
it does not follow that, because the Executive be-
lieves thelaw to be intra rirts, and the House, follow-
ing the lead of the Executive, believes it to l)e intra
rirrs, and because both act nieanwhile on that view,
you are j)recluded, if the j)ublic interest in any
view re(|uires it, from seeking further light,
either to settle the question or to quiet public
apfirchensions. No doubt the machinery at that
time provided was inadecjuate and the results
were less satisf.ictory than they might have
been, but even tlien, as in the case of last
Session, tlu; machinery might have been improved,
and, even though the machinery was unimproved,
it was betttr than nothing, and good results for the
immediate ijuestions were obtained in the public
interests — excellent practical results in the New
Brunswick schoo' case and also in the liquor license
case. If such a decision had been obtained in this
matter, I believe it would have been generally ac-
cepted, and an agitating (piestio.i in some of its
most agitating elements would have been so far
settled. Therefore I deem it by no means incon-
sistent with my expression, if not by voice yet by
vote last Session, contemporaneously with the
expression of other hon. gentlemen which was con-
curred in by me, that this Act was intra vires of
the Legislature which passed it, to say that I
thought, as I did think, that we held ourselves free,
if the circumstances of the case required it, to seek
and obtain that further light to which I have
referred. And so liolding, it was, further, my view,
last Session, that it was our public duty, as far as
possible, to elimimate from this controversy the
legal questions, and to provide for their disposition
in some way by legal authorities ; and it was my
opinion that, as in the New Brunswick school case,
and I may add the Liquor License case, the Govern-
ment might well, at the instance of the Legislature,
assent to and promote legislation or parliamentary
provision which would have secured that result.
Uiuler these circunist!' 'ces, having been unable,
owing to circumstances, to take part in the debate,
and having been obliged to leave my place here, it
became more and more clear to my mind that a
great public good would flow from the adoption of
that course by this Parliament ; and in the hope

thai if. iiiij^iit bo donu at tlic iiiMlanco of the Execu-
tive i>f the ilay, and having; rej^ard to tlio N|)ecial
(ni'cuiiiHtaiiceH of tlie t:ase, I thoiiglit that I was not
iniduly takinj; a lilmrty wlien, (hiring last Session,
1 made a eoniinunii'ation to a leading geiitlenian on
tlie other side of the Ffonse, anil to a leailing
gentleman on this side of the Koiise. On tlie '2()th
Ajii'il, 1S,S!), 1 took the liliei'ty of telegra])hing to a
leading gtnitleman opj)osite in these terms :

" Allow nio to KiiRgoat that the jxihlic interest would bo
promoted by parliamentary provision for early ret'erenco
to hiKhest available antliorities, of validity of Jesuits'
Estates Act. Easily accomplished by arrangement. I

have not coinmnnioatod to any one. Please let seo

this immediately."

1 telegraphed to a leading gentleman on this side
of tlie House, and wrote to Turn later on the same
day as follows : —

" It has for some time boon prcs.sing itself more and
raoro upon my mind that some of those who aro ongaged
in tlio tomuntation of the present agitation are taking an
undue advuntago by their plan of presenting, as a main
elomentof the di.'icussion, their views of the legal ques-
tions on the validity of this legislation. They intlamo
the public mind in various ways ; and they invite that
tribunal so highly inllamed, and at the same time so im-
perfectly informed on the legal issues, to adopt their
opinions on the latter, and to reach conclusions on tho
whole subject largely based on those opinions. In the
case of the New Brunswick School Act we recognised tho
strong feeling and the deep interest of a substantial
minority of the population as a reason for goverminital
and parliamentary action towards obtaining an authori-
tative settlement of tlie legal question. In the case
of tho Temperance Act wo did the same thing, and
there aro other precedents. I tliink we might now act
with great public advantage on the same lines. Had
the complaniants invited sueli action by a motion,
I, for one, would have supported it. They have now
had every opportunity to invite it ; it has become
plain that they do not intend to do so, 15nt their
inaetion does not disentitle us to act so as to atl'ord re-
lief to the public anxiety they aro creating; nor does it
relieve us of our responsibility. There is a special reason
for early and unusual action m the shortness of tlie time
now remaining before the term for possible disallowance ;
though this is not a governing consideration. The aim
should be to got tho decisicm, upon nrgunicnt,of the Judi-
cial Committee. I know there are difficulties ; but I think,
that the representations of the Government, based upon
parliamentary action, may over-rule them. At any rate
the eftbrt will be useful, Should it fail, there remain
tho Supremo Court and tho Imperial Law Officers. I
cannot seo any harm that can result from an honest at-
tempt to procure a speedy solution of the legal questions ;
I see ^reat harm to result from tho continuance of tho
situation with these questions unsolved. There is no
impropriety in our calling for an authoritative solution,
even though we have opinions of our own. The Govern-
ment acted on this view in the New Brunswick School
case. Assuming the sinceritjf of all the agitators (iind I
believe many of them to be sincere) they will all be glad
that this question should be put in a train for easy
and rapid solution ; though some of them may be sorry
that they did not propose tho plan, and may accordingly
decry it. My only object is to contribute, if in tho least
deproo I can, towards the settlement of questions, whoso
agitation, in the temper and spirit now shown in many
quarters, seem to mo most lamentable. There are diffi-
culties, great enough in our future, difficulties which wc
must meet, not shirk. But they demand treatment in a
very different spirit from that now frequently evinced, if
a. fortunate solution is to be reached. For the moment,
it seems to me, the best we can do for our country is to
grapple with that part of the present problem, capable of
solution by the machinery wo can set in motion. I do
not apprehend that tho great body of the Roman Catho-
lics, remembering how we acted in the ease of tho New
Brunswick school law, would be so unjust as to decline
acquiescence in the present proposal. But even in the
face of opposition from that Quarter, I would earnestly
urge its adoption, in the confident expectation that second
thoughts would reconcile them to it; and in tho belief,
that whether they think so or not, it is for tho general
advantage."

That was the view which I took leave to state in
the only way which was open to me at that time, a

view, I may add, which I have ever since enter-
tained, and which I believe siibse(|ueiit events have
rendered more clearly evident to be the tine one.
Now, the Minister of dustice has adverted to a
sjiecialty attending the application which was made
by a [irivate individual, 1 think (iraliam by name,
for a reference to the Supreme Court, a specialty
in respect of which 1 conceive that the; Minister
of .justice was entitled to Hpeak--that it was a jiro-
positioii to refer the ((uestioii to the Supreme Court
after the jieriod fii' di.sallowance had expired. 1
consider that tlio point of tinu! may make a very
.siiiious ditJereiice between an earlier and a later pro-
position. There are also some other observations
made by the Minister of .fustice with reference to
that jiarticular proposition from which I do not jiro-
pose to dissent. I uo not understand this motion to
1)0, ii/ certainly does not read as being, based ujiou
the (juestion of Mr. (Jraham's ajiplication ; it is a
general statement as to what, in tin; opinion of this
House, the (tovernment should have done. In my
o])iiiion, as you will have just learned by what I
have read, they slnnihl luivc; done even more than
what thin motion calls for. I think, as a (|Uestion
of political exjxidieiicy in the true .sense of that
term, as a (luestion of policy, it would have been
well to invite the Hou.so to take action in the way
of seconding, and facilitating, and eU'ectuating the
reference, in the way, as I put it last Session,
of making parliamentary j)rovisioii for such refer-
ence. Having failed to do that, the next best
thing, in my o]>inion, was to have rciferred it to
the Supreme Court, and in referring it to the
Supreme (Jourt, in the circumstaiice.M in which
the country was placed, and for the piii'[;osc of
obtaining further light within the period renuiiii-
ing for disallowance, 1 believe they would have
done well, though I think they would have done
still better to have adopted the parliamentary
course to which I have referred. The lion, gen-
tleman has adverted to a report of mine upon
an application from New Urnnswick with refei'ence
to a local Act, in which the })roposition was from
the authorities of New Brunswick, that we should
use this particular power to obtain an opinion frcnn
the Supreme Court as to the validity of that Act,
not at all with reference to the question of disallow-
ance, nor for any purpose of the Federal Kxecutive
at all, but in order» to obtain a short and easy cut
to a decision, by the appellate court, of a (|ues-
tion perfectly easy of solution in the ordinary way.
So far from the Civses lieing parallel in any respect,
they differ in almost every respect. I ha,\'e stated
the character and object of that New Brunswick
application. But as to this case now in hand, I
have pointed out to you that during last Session,
and after last Session, the reference of which I
speak might have been made by the Executive, of
its own motion, or at the instance of ]*arliament,
for the purpose to wdiicli I have referred, for the
purpose of enlightening them as to the course they
should take. And as to the possibilities of there
being an easy and rapid mode of obtaining a judicial
decision on the case in hand, the Minister of Justice
confined his observations, as far as I could gather
his argument, to the question of the validity of the
Jesuits' Incorporation Act and did not touch the
other questions which are suggested. He said
that as to that Act there was a method ; that the
Attorney General of the Province of Quebec might
have been called on to deal with that question,

and that tho Hnciety of JesuR itnelf in a lihol Huit,
while it did not riiitiu tho (jueHtion uh to itH iucor-
])oi'atir)n, wiiH yet resisted hy the defendimt who
did nuHe it. Hy this time I oelieve, within a (hiy
or two, we have had the first decision of a single
judge in tlie court of first instance on some ])i'e-
liminary stage of the trial of that «ase ; and the
decision is in favor of the incorporation ; hut the
end is not yet ; and after all that has been done,
and all the time which has elansed, the other (jues-
tions which have been raised, oe their weight what
you jilense, remain untouched by that decision and
nicapable, so far as I can see, by any easy process
certainly, and not by any process at all that I am
aware of, «)f being ever touched. There are several
classcH of cases in which provincial legislation
may be xdtra virex, and in wliich it is difficult or
impossible to prescribe a mode by which the (lues-
tion can be tried in the courts, and I believe
some of these questions are of that description.
Then the hon. Minister of Justice says, tiuit the
application to the law officers of tlie Orown has
been improperly criticised. I think the phrase
wliich the hon. mendier for Noith Norfolk (Mr.
(Jharlton) used was not justified by anything I
have heard ; I do not understand very well the
relevancy of the phiuse clandestine on which the
hon. Minister anunadverted. I suppose all that
was really meant was, that there should have been
a puldic announcement of the fact that this refer-
ence was being maile, which, I agree, would pro))-
al)ly have l)cen better. I think it would have been
l)etter not to have made any mystery about it ; but
if the word clandestine is applied in any invidious
sense, I am not disposed to concur in that applica-
tion. ]Jut, I want to call your attention, Mr.
Speaker, to the ground up(ni which the Minister of
i] ustice himself says, that it was well and wisely done
to get tliat legal advice of the law officers, to which
he attaches such high importance, on this (jnes-
tion. What was that ground ? It was the state of
public feeling, and it was on that account that it was
thought important to fortify the P]xecutive by an
opinimi. I agree. But, I argue, also, that this
very con<lition existed during the Session, and it
existed after the Session, cand that its existence is
the justification for the proposition that the public
interests required the Executive itself to act, to
act early, and to act by a reference whicli I think
would have been more proper and more valuable
than the reference which was made to the law
officers. I do not well understand the attitude
which the hon. gentleman assumed upon two points
in this connection : first, with respect to this same
application to the law officers ; second, with respect
to the reply of His Excellency to the deputation
which he met. I am quite aware that the Governor
(Jeneral of (^anada occupies a sort of double posi-
tion, and that there are certain conceivable cases
in which it may be alleged, perhaps, that he is act-
ing as an Imperial officer, and that his advisers,
the Queen's I'rivy Council for Canada, have no
responsibility for such acts. It may be so. I
liecline to enter into a definition of those occasions.
I hold it to be the duty of any representative of
the Canadian people to narrow to the utmost pos-
sible extent the classes of cases to wliich the prin-
ciples of responsible government shall not be held
to apply, and I will only add that I perceive no
circumstances whatever existing in this instance
which should induce us to abandon for one moment

this day, the development of the principle of
ish (Constitutional ( Joverninent. 1 ake the ace

tho fullest application of tho principles of roBpoii-
sible government to the action to which I refer.
I am not condemning the action. I only say that
it is an action in resnect of which the Ministers
cannot constitutionally siielter theniHolves under
any suggestion tiiat they are otherwise than abso-
lutely and fully respoiiHible for it, and we speak of
it as their action, because we insist it must be
advised by them. So witli respect to the address
of His Excellency in reply to the deputation. I
maintain that no formal words, such as those
used by the hon. Minister, "of course I assume
all the responsibility that constitutionally devolves
upon ine," answer the exigencies of the occasion.
There is a real responsibility, there is more than
the formal and technical responsibility implied by
the hon. gentleman, and hon. gentlemen opposite
would have been deserting their <luty, if they had
done otherwise than advise His Excellency as to
the answer which he slumld give to that deputa-
tion, and they aro deserting their duty to-ilay if
they ask us to treat that answer in every word and
letter of it as anything else than an answer given
under their advice. It is not necessary to trace at

i Brit-
accounts

of what happened in the course of the reign of the
last William ; take the interviews that took place
even with peers ; take the answers to addresses on
much more innocent and less important questions
on which the monarch expressed with some free-
dom his opinion, and you see that even at that
stage of the develojiment of the principles of re-
sponsible and constitutional government, the First
Minister of the day felt bound to renumstrate with
the sovereign, ami jioint out to him that he must
have power to advise, and that without his advice
such observations must not be made. The First
Minister felt tliat h.c v aS responsible. So I say
that this answer, which I v.m not for the moment
criticising, is, in no formal or technical sense, but
must fje taken to have l)een really and substantially
given under the advice of theMinisters of theCrown.
This action then has been taken under that advice,
and so taken, this action, which recognises on
the part of Ministers the existence of that con-
dition of puldic opinion to which I have adverted,
it recognises the importance and propriety of tak-
ing notice of that condition of put)lic opinion, and
of fortifying the Executive by the assistance of
dispassionate aid and advice as to the legal ques-
tion. The hon. gentloitian says the law officers
have been treated by the hon. member for North
Norfolk with some degree of disparagement. The
law officers are law officers, and it will not be
pretended that they are always of the same calibre.
I am afraid that I would fall under the condemna-
tion of the Minister of Justice, and tliat he would
treat me as a very old offender, as one whom he
would subject to the severer penalties to which
habitual offenders are regularly exposed, in this
regard. Not that I deny for an instant the up-
rightness, the honor and the transcendent ability
of many, of almost all those who have filled the
high positions of Attorney General and Solicitor
CJeneral of England. As a rule they win that
position by force of merit and they hold it by force
of merit, and those who hold first places at the
English bar, and who fight their battles in the
face of day with tlie most eminent advocates in
that country and in the halls of Parliament as well.

nniHt ho, iiH a rulu, inun of ^ruat weight and mark.
But wliat I Hay iH tliia, that thvno ai'u 1)UHy men iih
well ; aiul that it in not thoir regular liusineHM to
Ret judieially at all ; tliat they are txilitical peruon-
agea ; that their oniuions expresHeii on theHO oeea-
BioUH are not entitled to tlio name weight an the
opinionu of ji'<lgeH ; and I add tliat oueii luiH been
the experieneeof the hon. gentleman opinmite when
it Huited him to seek the advice of the law otHcei-H,
and that han not been very Heldom. I eould go
over IV long head roll of easea, if it were not pi'etty
late in the Seuuion and in the evening, in which
tiie right hon. gentleman found it convenient to
Bliunt off a ditlicult (luestion by Hcnding over to the
law otticers and gettnig their opinion, and Home of
tho8o opinions have been placarded as great autho-
rities when it suited him to do so, while other
opinions were obtained from lime to time to which
he paid less regard and gave less prominence. I
say that of the three possible sources to whicli we
might apply, the law otticers are umjuestionably
tiio third. I hold that the Judicial Committee of
the I'rivy 0)uneil and the Supreme Court both
stand in rank of suitability tor that purpose
higher than the law otticers. Tliat is enough for
nie. I do not condemn the application to the law
officers, but I mii'ntain it would have been more
exjicdient and more in the interests of the country
to have applied to the Supreme Court. Now, the
Minister of Justice has declared that these views
are in fact old High Tory views, and I suppose
that was rather based once again upon tlie idea
that we are being called upon to vote something in
the nature of condemnation of the Executive, for not
complying with Mr. Graham's application. The
hon. gentleman brought into the arena the court of
high eonunission and the old ecclesiastical courts,
and he told us of these extraordinary tribunals,
with inciuisitorial powers created by the supposed
prerogative of the Crown in eai'lier and more evil
days, denounced for years, found to be productive
of great abuses, in the end wiped away from
the institutions of the land by an indignant Par-
liament, which prohibited their re-erection by
prerogative — though, of course, tliat Parliament
which had annulled them, could of itself have re-

erected them. The hon. gi^ntleman told us that
tiiose who Hii|)ported this motion were advocating
tin; doing something of the same sort, as I he erection
of these courts. What was the niiscliief of tlicse
courts ? It was their coercive jurisdiction. They
were unusual tribunals, out of the ordinary coui'se
of the law, by wliich the subject was to be vexed
an<l aggravated, ly winch he was to be har-
assed in person and in estate, and that was tlie
main objection to them. Ihit tiie proposal which
is made to-day is of another character. The hon.
gentleman objected to this projiosal at one time
just because it was not coercive. He said tiie de-
cisiim does not bind and you cannot make it bind-
ing, and, therefore, you should not get it at all ; so
that first of all he objects because it does not bind,
and then he says it is like the court of high com-
mission which was bad, because it did bind. No,
Sir, the object in this ease was not to vex and ag-
giavate the subject. Tiie object was, 1 think, a
worthy object ; it was to relieve the apprehension
of the subject, by the opinicm of an authoritative
tribunal upon a legal tjuestioii ; ujion which Iciuite
agree a great majority of this House took a
different view from that of the hon. member for
North Norfolk (Mr. Charlton). We, of the
majority, thought, as I believe we think still, tliat
the objections which were taken to this Act were
objections which would not be found to weigh in
the balance. We thouglit they were c)bjections
which would not be maintained in tlie courts. But
some of us at any rate — of whom I have shown
you that I was one — thought, even during hist
Session, that the circumstances of the case were
such, that we ought not to set up our judgments
as absolutely conclusive upon this question ; but
that we might well resort to higher, to purer, to
calmer, and to clearer light for a decision, whicii if
given in the way we expected it would be given,
would settle the (juestion, so far as the agitators
and those wlioiii they were seeking tf> agitate were
concerned ; and whicii, if given in tlie other way,
would furnish a just foundation for the exercise
of that power of disallowance for which those
agitators called. ,

OTTAWA : Printed by Brown Chamberlin, Printer to the Queen's Most Excellent Majesty.