Mr. MILLS (Bothwell).-Suppose a man has a right of way which he has used daily for a quarter of a century, and it is the only outlet or inlet to his property. This provision would put it in the power of the owner of the land to prevent his using the easement or obtaining access to his own property, and if he attempts ingress or egress to or from his own property, he will be considered an offender. It justifies the other party in committing an assault.

Mr. McCARTHY.-It is an easement which you are exercising over another man's property, and which he is disputing, and if you take the law into your own hands and try to enforce your rights and an assault is committed, you are liable. That is the distinction between civil and criminal law.

Mr. DAVIS (P. E. I.)—If I am the owner of a piece of land and another man is in possession wrongfully, and I cross the fence and go on the land, there cannot be in the eye of the law two people in possession of the land at the same time; and when I once enter peaceably on the land, I am the possessor. An easement over land is a right as well known in law as any other right. The hon. gentleman declares that although a man is exercising his legal right still the owner of that land can commit an assault upon him and drive him off, and the owner of the easement, who is exercising his legal right, would be considered the person who provoked the assault.

Mr. MILLS (Bothwell).-It is upon the civil right that the question of criminality ought to depend, but the proposed law is not letting it rest there, but is shifting it upon the man who has the easement and who undertakes to exercise his right.

Sir JOHN THOMPSON.-The mistake of my hon. friends opposite is that they assume the criminality depends upon the legal right with regard to ownership. That is not the principle upon which the criminal law proceeds in these matters. I may recover against you in ejectment if you hold my land; but but although I have an absolute right and title to it and can recover on ejectment, I have no right to take possession by force.

Mr. MILLS (Bothwell).—That is a different case.

Sir JOHN THOMPSON.-This is precisely the application of the same principle to an easement.

Mr MILLS (Bothwell).-No; the party is always in possession of

an easement.

Sir JOHN THOMPSON-No, not more than the holder of a deed is always in possession. If not in actual possession, the criminal law says he shall not go there by force. That is the difference. If I have an easement on the chairman's land, which he disputes, not assert my right by force, even though it be clear and capable of establishment by law. If I do, I am deemed to have provoked an assault upon myself, if an assault should occur. The hon. gentle man will find, I am satisfied, that this is exactly the common

I shall

law; with this difference, that it makes a change in favour of the person claiming the easement, inasmuch as instead of making complete the provocation in case he forcibly asserts his right,.even though he has not had any notice, it says he shall only be deemed to be guilty of provocation if he has had notice that his enjoyment of the easement is to be resisted by force. Any change there is, is in favor of the person claiming the easement.

I submit that the clause ought to pass, inasmuch as we find it reported as a statement of the common law by these eminent authorities; and if hon. gentlemen will look into the matter, and if they then find that it is not the common law, we will go back to it.

Mr. DAVIES (P. E. I.)-The hon. gentleman will see on reflexion it is not the common law. Take the case stated by himself. Supposing A brought an action of ejectment against B, and recovered on it. If he went and got peaceable possession of the land, he would be all right. It is only when he forcibly attempts to take possession that he would be committing a criminal offence. Is not this legislation entirely in favour of the rich man, by compelling the poor man, once he is notified not to go on this land, to resort to a court of law to enforce a right which he may have exercised for fifty years, and which may be his beyond doubt? If we are to lean in any way, and we should not lean to either side, we ought rather to lean in favour of poor people who are not so well able to vindicate their right in courts of justice as wealthy people are.

Mr. McCARTHY.-We are not laying down any law here but simply what is already the principle of the common law, which is that a person who insists upon getting his right in this way, knowing that it will be opposed, is the person who is guilty of the assault.

Sir JOHN THOMPSON.-What we declare, and what we are supported in by these high authorities is that a man has a right to put another off his premises because he is coming with force to assert a right to the property, and that is what the law forbids, a man taking forcible possession of his own land. Though he may have a right under the civil law, he is an offender against the criminal law, and this is in fact intended to prevent people taking the law into their own hands. In England there may be some question of rich and poor in the case of those who insist upon hunting over the lands of poor people who seek to restrain them but that does not apply here, and in fact it is not a question between rich and poor.

Mr. DAVIES (P. E. I.)—If a man is in peaceable possession of a piece of land, and the owner comes to take forcible possession of that which is in the actual possession of another, if he makes a forcible entry he is liable to be prosecuted; but, if he is exercising a right recognized by law such, as an easement or right of way over land, he is not doing anything unlawful. Take the case of a man who is the owner of a piece of land in the rear of another, and on which no water is found in the summer season. He is obliged to drive his stock every day through his right of way over the other man's property. My hon. friend says he must go into Court to establish his

right, and all his personal property might be lost or destroyed before he would be capable of exercising that right. He would be at the absolute mercy of his neighbour, although he had purchased the right of way; and although it may have been registered as part of his title, he cannot be regarded as in possession. It is incorporeal property of which he may be divested under this section at any moment until he goes into Court and establishes his claim.

Sir JOHN THOMPSON.-It seems impossible to convince the hon. gentleman, although we think this has been the law for hundreds of years. But we will let this section stand at present.

On section 63, sub-section 2.

Mr. McCARTHY.-Should not that be mutual? The wife should have a chance too.

Mr. DAVIES (P. E. I.)—There should be mutuality. If the wife protects the husband the natural law would rather oblige the husband to protect the wife.

Sir JOHN THOMPSON.-We will let that stand so as to alter it.

On section 72.

Mr. MULOCK.-The second portion of the section deals simply with cases of those, who are not themselves in the service, inducing men to desert. If you ask one who has enlisted in the Imperial army, or any one in the volunteer service of Canada, to abandon the service, you are inducing that person in a traitorous way to desert. What is the meaning of traitorous? It does not follow that the object is that he shall make war upon Her Majesty; the word "mutinous" might cover that: but the word "traitorous" is much wider and I think it ought to come out.

Sir JOHN THOMPSON.-I do not agree that the effect of this objection is to render any person liable who simply incites a soldier or sailor to desert, unless he does it in pursuance of a traitorous or mutinous purpose, and the traitorous purpose is defined by this Act. It must be for the purpose of forwarding some of the designs which are declared to be treasonable. It may be done in consequence of sickness, or wounds, or from a wrong religious opinion, and would not then, be punishable by imprisonment for life. But if it is done for the purpose of weakening the authority of the Sovereign, and preventing the defence of her dominion against her enemies, then it would be traitorous.

Mr. MULOCK.-I think you had better say treasonable instead of traitorous.

Sir JOHN THOMPSON.-It is the same thing.

On section 74.

Mr. FLINT. In regard to the Militia I think this should only apply to the time of war or disturbance. Suppose one should induce a militia man to go away to better his position.

Mr. DAVIES (P. E. I.)-Suppose a father should ask his own son to leave the force.

Sir JOHN THOMPSON.-He could leave when he wished under the law, but that is a different thing from deserting.

Mr. MULOCK.-Suppose the troops are called out for the annual drill, and an employer should threaten an employee with dismissal if he should go; he would practically invite him to desert.

Sir JOHN THOMPSON.—I do not think so, but we will look into the matter.

On section 75.

Mr. DAVIES (P. E. I.)—I understand from military men that if a man does not turn out when ordered and goes away, it is desertion in the meaning of the Militia Act.

Sir JOHN THOMPSON.-I think the provision would not apply to the case of a person asking a member of the militia not to turn out on parade day, but only when the militia is called out for active service. If this House will pass the section, I will examine it carefully, and if I find that it applies to turning out on parade, I will ask the House to review it. The Minister of Militia tells me that it is not so.

Mr. BOWELL.-A refusal to turn out on ordinary parade is only punishable by fine under the Militia Act.

On section 87.

Sir JOHN THOMPSON. -The committee were unwilling to adopt the section to its full extent as it appears here. The clause was principally applicable to the old country, where drilling was sometimes connected with treasonable designs, bu at some time it may be useful to have a provision by which unlawful drilling may be prevented and the conclusion which was finally adopted was that drilling should be made unlawful when prohibited by the Governor in Council.

On section 89.

Mr. DAVIES (P. E. I.)—I do not understand "forcible entry "as defined in this section.

Sir JOHN THOMPSON.-Where a person causes an assembly that is calculated to produce a breach of the peace, that is a forcible entry.

Mr. DAVIES (P. E. I.)-Russell's definition is as follows:

"Forcible entry or forcible detainer is committed by violently taking or keeping possession of lands or tenements with menace, force and arms, and without authority of law."

That is well understood by everybody. If a man tries to eject another from land that he claims as his, and uses force or menaces, and attempts to take possession of that property, he is guilty of a forcible entry, but here you are creating a new offence altogether.

Sir JOHN THOMPSON.-That is a very rough definition. I have carried on prosecutions myself where a person did not enter, but where the assembly for the purpose of entering was of such a character as would likely provoke a breach of the peace. This is what the Commissioners say:

"Forcible entry and detainer are offences in the common law. Section 95, we believe correctly states the existing law."

Burbridge states it thus:

Every one commits a misdemeanour called a forcible entry who, in order to take possession thereof, enters upon lands or tenements in a violent manner, whether such violence consists in actual force applied to any other person, or in threats, or in breaking open any house, or in collecting together an unusual number of persons for the purpose of making such entry."

He states authorities for that.

Mr. DAVIES (P. E. I.)—I remember a case some years ago, in which the question was thoroughly threshed out. My recollection is that the conclusion was that unless there was force and violence in the entry, you could not maintain your action, although the intention might have been to have entered by force, but the party could not see his way to do it, and the indictment failed. But here, if a man entitled to land enters on it in a manner likely to cause a breach of the peace, he is punishable.

Sir JOHN THOMPSON.-The hon. gentleman can look at these authorities, and if I am wrong, we can revise this section.

Mr. LAURIER.—I would call the attention of the Minister to the 3rd sub-section "what amounts to actual possession or colour of right is a question of law." What amounts to actual possession is certainly a question of fact which ought to be left to the Jury.

Sir JOHN THOMPSON.-As in all the sections which provide what shall be questions of law, the enactment does not refer to any disputed question of facts. The fact may be that somebody was in actual possession, it may be in a technical way by nobody else being in possession, it may be by some servant or agent being in possession, all of which facts are to be found by the Jury; but the effect is a question of law.

Mr. LAURIER.-Even that way it would simply imply nothing new. In criminal law as well as in civil law, what is done by an agent in such a case as this is done by the master. It seems to me that you are removing something to the province of a Judge which has been within the province of a Jury.

Sir JOHN THOMPSON.-That is not intended by the section, and if it were so, it would be a departure from the common law. For example, the actual owner is resident abroad, but his agent or