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 CONTEMPORARY CANADIAN

Business Law PRINCIPLES & CASES

12th
E dition

John A. Willes, QC
BA, LLB, MBA, LLM
Barrister-at-Law
Barrister and Solicitor, Notary
Professor Emeritus, Queen’s University

John H. Willes
BComm, LLB, MBA, LLM, CIM, FSALS
Barrister and Solicitor, Notary

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 viii | Table of Contents

Review Questions 467 Rights of a Landlord for Breach of the Lease 558
Mini-Case Problems 467 Rights of a Tenant for Breach of the Lease 561
Case Problems for Discussion 467 Termination 561
Shopping Centre Leases 564
Chapter 21 The Sale of Goods 472 Summary 566
Codification of the Law 472 Key Terms 566
Nature of a Contract of Sale 473 Review Questions 566
Contractual Duties of the Seller 481 Mini-Case Problems 567
Contractual Duties of the Buyer 489 Case Problems for Discussion 567
Remedies of the Buyer 489
Remedies of the Seller 490 Chapter 25 Commercial and Residential
Electronic Sale of Goods 493 Real Estate Transactions 571
Summary 494 Introduction 571
Key Terms 494 Modern Real Estate Transactions 573
Review Questions 494 Summary 583
Mini-Case Problems 495 Key Terms 584
Case Problems for Discussion 495 Review Questions 584
Mini-Case Problems 584
Chapter 22 Interests in Land 499 Case Problems for Discussion 585
Introduction 499
Historical Development 500 Chapter 26 Intellectual Property, Patents,
Estates in Land 501 Trademarks, Copyright, and Franchising 589
Registration of Property Interests 508 Introduction 589
Lesser Interests in Land 511 Trade Secrets and Non-Disclosure Agreements 590
Fixtures 517 Patents 591
Title to Land 519 Trademarks 597
Summary 520 Franchises 602
Key Terms 520 Copyright 603
Review Questions 521 Industrial Designs 609
Mini-Case Problems 521 Licence Agreements 609
Case Problems for Discussion 521 IP in a World of Technological Change 610
Summary 611
Chapter 23 The Law of Mortgages 526 Key Terms 611
Introduction 526 Review Questions 612
Historical Development 527 Mini-Case Problems 612
The Nature of Mortgages 530 Case Problems for Discussion 612
Priorities between Mortgages 531
Rights and Duties of the Parties 532 Part 6 Special Legal Rights
Special Clauses 534 and Relationships 617
Discharge of Mortgage 535
Assignment of Mortgage 535 Chapter 27 Consumer Protection Legislation 618
Sale of Mortgaged Property 535 Introduction 618
Default, Foreclosure, and Sale 538 Historical Development 619
Business Applications of Mortgage Security 541 Modern Development 619
Summary 543 Consumer Safety 620
Key Terms 543 Consumer Information 623
Review Questions 544 Consumer-Product Quality and Performance Protection 624
Mini-Case Problems 544 Consumer Protection Related to Business Practices 627
Case Problems for Discussion 544 Credit-Granting Consumer Protection 632
Credit-Reporting Consumer Protection 633
Chapter 24 Leasehold Interests 548 Summary 634
Leasehold Interest 548 Key Terms 635
Historical Development 549 Review Questions 635
Creation of a Tenancy 550 Mini-Case Problems 635
Rights and Duties of the Landlord and Tenant 553 Case Problems for Discussion 636

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 Table of Contents | ix

Chapter 28 Law of Negotiable Instruments 640 Restrictive Trade Practices 732

Introduction 640 Mergers and Firms in a Dominant Position 732
Historical Development of the Law 641 Conspiracies and Combinations in Restraint
The Bills of Exchange Act 642 of Trade 734
Bills of Exchange 643 Offences Relating to Distribution and
Sale of Products 737
Liability of the Parties to a Bill of Exchange 646
Reviewable Activities 738
Cheques 647
Offences Relating to Promotion and
Promissory Notes 650
Advertising of Products 739
Defences to Claims for Payment of Bills of Exchange 653
Civil Actions under the Competition Act 742
Consumer Protection and Negotiable Instruments 658
Summary 743
Summary 660
Key Terms 744
Key Terms 660
Review Questions 744
Review Questions 660
Mini-Case Problems 744
Mini-Case Problems 661
Case Problems for Discussion 745
Case Problems for Discussion 661
Chapter 33 International Business Law 748
Chapter 29 Security for Debt 665
Introduction 748
Introduction 665
The Importation of Goods into Canada 749
Forms of Security for Debt 667
The Export of Goods from Canada 752
Statutory Protection of Creditor Security 679
International Trade Regulation 752
Summary of Priorities between Security Interests 684
International Trading Relationships 757
Summary 684
International Contracts of Sale 760
Key Terms 685
Arbitration of International Trade Disputes 763
Review Questions 685
Enforcement of Arbitration Awards 764
Mini-Case Problems 685
Summary 766
Case Problems for Discussion 686
Key Terms 766
Chapter 30 Bankruptcy and Insolvency 689 Review Questions 766
Introduction 689 Mini-Case Problems 767
Historical Background 690 Case Problems for Discussion 767
Insolvency versus Bankruptcy 691
Chapter 34 Environmental Law 769
Bankruptcy Legislation in Canada 691
The Common Law 769
Summary 704
Environmental Legislation 772
Key Terms 704
Responsibility for Existing Contamination 778
Review Questions 704
Summary 780
Mini-Case Problems 705
Key Terms 780
Case Problems for Discussion 705
Review Questions 780
Chapter 31 Insurance Law 708 Mini-Case Problems 781
Historical Development 708 Case Problems for Discussion 781
Forms of Insurance 709
The Nature of the Insurance Contract 713 Chapter 35 Privacy Law 784
The Concept of Indemnity for Loss 718 Privacy Legislation 784
The Parties Associated with Insurance Contracts 720 Anti-Spam Legislation 791
Summary 723 Summary 794
Key Terms 723 Key Terms 794
Review Questions 723 Review Questions 794
Mini-Case Problems 723 Mini-Case Problems 795
Case Problems for Discussion 724 Case Problems for Discussion 795

Chapter 32 Restrictive Trade Practices 728 GlossaryGL-1

Introduction 728 Reference ListRE-1
Nature of the Legislation 730 IndexIN-1

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 Preface
This 12th Edition of Contemporary Canadian Business Law continues the
tradition of more than 30 years of providing students with a clear understand-
ing of the legal environment for business professionals, owners, and managers
in Canada.

This text provides students with the legal knowledge and edge they require,
matched to the course offerings of Canada’s universities and colleges. We cover
all the core topics of business law, as well as many emerging topics, allowing
instructors to design courses appropriate for the particular needs and interests of
their students and the requirements of their business program.

Covering the full span of business law in the everyday commercial world,
the text is divided into six parts. Part 1 introduces the law and the legal system,
establishing the nature of law and its system of administration. Part 2 delves into
torts, one of the oldest and most interesting areas of the law, and one that rapidly
comes to the fore when business ventures cause injury to others. Part 3 looks at
the heavy lifting of commercial relationships, the law of contract, while Part 4
examines the various forms of business organizations as well as common com-
mercial relationships. Part 5 explores the rights and responsibilities associated
with property, including intellectual property. Part 6 treats a variety of special
legal rights and relationships, from consumer protection and bankruptcy to
environmental law, international legal issues, and privacy.

Contemporary Canadian Business Law adopts a learning-goals approach to the

law, with clear learning goals leading the way as each chapter opens. In addition
to clarity in development and explanation, scope, depth, interest, and debate are
further fuelled through use of special features. These range from management
advisories and checklists to ethical questions, case summaries, and spotlighted
examples that will be familiar to many students. Tying it all together, review ques-
tions, mini-cases, and discussion cases provide not only review, but drive home
the application of legal principles and rules to business problems.

JAW
JHW

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 Preface | xi

A Student’s Guide
Contemporary Canadian Business Law, 12th edition, offers pedagogical features to help
students learn and apply the concepts found throughout the text. Each chapter is orga-
nized to enhance the learning process, and includes a concise outline of the important
business and legal principles relating to each topic. The following will help to guide you
through the text.

Part Openers
The text is organized into six parts and each part opens with a list of the chapters that
are included within the part.

Part 3: The Law

of Contract

7 An Introduction to Contracts

8 The Requirement of Consideration

9 Legal Capacity to Contract and the Requirement of Legality

10 The Requirements of Form and Writing

11 Failure to Create an Enforceable Contract

12 The Extent of Contractual Rights

13 Performance of Contractual Obligations

14 Breach of Contract and Remedies

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 could never have afforded to hire a lawyer (despite having a good case) now have a
route to being heard. Those opposed say it brings the worst of U.S. justice to Canada:
frivolous cases brought for all manner of slight injuries on slim hopes of success.
Regardless of choices between lawyers and their clients, it must be remembered that
losing a case under a contingency fee relationship does not rule out a court order of
CHAPTER 2
costs payable to the victor.

|
xii Preface
Class ActionsThe Judicial System
and Alternative
class action Some circumstances lend themselves to class proceedings (commonly known as class
Chapter Objectives
an action where a single actions) in which a single person could stand as the representative for an entire class of
person represents the similar individuals. This person usually represents a group of plaintiffs, but the law does

Dispute Resolution
Each ofchapter
interests begins
a group, who with afor
also provide lista representative
of its primary learning
of a class objectives. This useful tool
of defendants.
will share in any award.
enables students to see Considerwhata case theyof should expect act
a single negligent to that
learn in each
derails chapter.
a passenger train, injuring a
hundred persons. There is nothing to be gained through a series of a hundred trials on
the same facts, so judicial economy would be achieved by combining all the actions into
CHAPTER OBJECTIVES one. Secondly, the cost of proving a complex case (for instance, faulty research behind
a dangerous medicine) could possibly be greater than the possible damages and costs
After study of this chapter,
awarded to astudents
single person. should Thus bethe ablelargeto:collective (and then shared) damage award
makes the case worth mounting,
• Describe the development, content, and structure of the judicial system.
where otherwise no one would have stepped forward.
This increases the access to justice for all claimants. Finally, class actions remind society
• Explain the sequence
that a largeof stepsprofitinfromcourtaprocedure,
tiny wrongparticularly
done to many civil people
court is not a technique that will
procedure. escape justice, and thus hopefully prevents such opportunism in the first place.
• Identify how and why Class alternative
proceedings disputefirstresolution may be the best
require identification optionrecognition
and legal for that a class of two
54 | theR settlement
pA of more
T 1 The Legal
or business
environment
people disputes.
for Business
really exists, with issues in common that could shelter under the repre-
• Explain the role sentative
of barristersclaim. andThe representative
solicitors, the range plaintiff must be
of services someone
provided by who can fairly represent
everyone
the legal profession, with
andeffect enough time,
the concept money, and
and limitations understanding
of court costs. ifofa the issues, and not have a
and give to the action undertaken. For example, client wishes to enter into a
conflict of interest with the other claimants.
contract with another business person to sell certain assets, the lawyer will advise the
Once certified as a class, the claim moves forward much like any other litigation.
client of the nature of the sale agreement required, the tax implications of the sale, and
It can however, be difficult to assess the correct amount of damages in class actions.
perhaps the need for any special licence or permit required to sell the assets if the buyer
Introduction Accommodation exists as a result for different degrees of injury among claimants, uncer-
Case in Point resides abroad and the assets are goods subject to export restrictions. The lawyer will
tainty as to how many persons were affected by the wrong done, how many claimants
also either prepare the agreement of sale, or review the sale agreement if it is prepared
Case in Point features actually participate, in and different remedies for different claimants. Often aa settlement is
by the appear most
lawyer,chapters.
as inCase inoritPoint
protectsboxes
States,give brief
clientdescrip-
In a complex, modern society, such Canada the United the courts play
other party’s to make certain that the rights of the and
an important
reached betweenrole theinclass
the lives
and of thecitizens.
defendant.First and
Theforemost, the courts
representative decide
of the disputes
class may accept
tion of a recent legal givesdecision
effect individuals
the between
settlement,
to the that
but affects
client’s wishesthe
first(including
it must be business
in the sale. In
corporations),
approved byand world,
the
the
event that
between
court as reinforcing
the other party
individuals
being in andthe thethe lessons
fails
state.
interest of
to
complete the role
transaction, a lawyer will advise the client of his or her rights under the
learned in the text all and
the
agreement
the
Thismembers
is the court
and, The
ofthat decisions.
the generally
if retained
class. comes to mind when the function of the courts in society
to do so, will
is considered. courts have other very take the necessary
important functions legal actionason
to perform behalf
well, how-of the
client
ever.toTheyenforce
are thethechief
agreement.
interpreters of the constitution, and in this capacity decide if
Apart from
legislation passedadvising
by eitherclients on the government
the federal legal implications of business
or the provincial transactions,
legislatures exceeds
CASE IN POIN Tthefrequently
firms government’s engage lawyers
respective to assist
powers in thethe
or violates negotiation of collective
rights and freedoms agreements
of individuals.
withIn the
this labour
sense, the courtsthat
unions are represent
the guardians the of theseemployees.
firm’s rights and freedoms,
Collectiveand through are
agreements
their interpretation
A term in a cell phone enforceable
contract excluded courtof
contracts theset
constitution
proceedings
that out as may enlarge
thea terms
dispute remedy,
and or substituting
restrict of
conditions its employment
provisions.
binding arbitration
under in which
its place. Regardless, a the
subscriber
employees sued will
the carrier
work, withand the oftenintention
requireofmuch recovering certain before
discussion airtime the
charges on behalf
agreement is
of a class, representingreached.
all subscribers.
Lawyers To shutwhodown the class
specialize in action,
labour the carrier are
relations relied on the agreement
frequently called uponto gototoassist
private arbitration. Theorganizations
Supreme Court For example,
ofofemployees
Canada s. 2(b) of the Canadian
disagreed,
(unions) and Charter
in allowed
their theofclass
negotiationsRights and
action to
as well. Bothprovides
Freedoms
proceed, as justice and
employers
would not be well served by afor
unions freedom
series
call upon of
of isolated expression,
members low-profile including
of the private freedom of the
and confidential
legal profession press. Section
arbitrations.
to process disputes 1 permits
arising out of
a government to establish a limit on the exercise of this freedom if the limit is
collective agreements (CanLII). at the stage where the dispute is brought before an arbitrator or
See: Seidel v. TELUS Communications“demonstrably
Inc., 2011 SCC 15 justified in a free and democratic society.” If the government
arbitration board for a determination.
passed a law prohibiting the publication in a newspaper of any literary review of
Some
certain lawkinds
firmsofspecialize
literature, wouldin thethisareaviolate
of patents,
freedom trademarks,
of the press and under copyright
s. 2(b) of law,
and these firms assist inventors and firms that develop new products to establish patent
the Charter?
protection for their products or processes. They also assist businesses with trade names
A Question of Ethics
30
or trademarks by attending to the necessary legal work associated with the protection of
the name or mark.
This feature raises ethical In largequestions
financial centres, for discussion
many law firms with respect
specialize to particular
in providing advice and business
assis-
activities and compliance tance in thewith the law.ofA
incorporation Question
firms, the mergers of Ethics
of firms, acts and legalas aworkspringboard
associated with for
the financing of takeovers. This is often complex work, as it frequently involves not only
the exploration ofexpertise legal issues in business that are in today’s headline news and are
in the area of securities (bonds, debentures, and shares) but also taxation and,
timeless. to some extent, public policy related to restrictive trade practices.

A QUESTION OF ETHICS

Eighty-eight-year-old Edgar O’Malley, a 70-year cigarette smoker diagnosed with lung cancer, commenced legal
action against the cigarette maker of the brand he had smoked for over 40 years. Over the next three years, the
case was adjourned six times at the request of lawyers for the manufacturer, and 26 motions were made before the
court for O’Malley to produce various bits of evidence. At age 91 O’Malley died, leaving only a possible claim in
the hands of his widow, and extinguishing any possibility of O’Malley giving evidence toward the claim. The suit
was settled on undisclosed terms. What do you make of this?

Summary
The legal system is the vehicle by which the law is in nature. The earliest courts were not courts as we know
enforced. This was not always the case, however. The them today, but simply meetings of the community.
development of the legal system has been evolutionary Community pressure to support a decision was common

wil54893_fm_i-xx.indd 12 1/6/20 6:42 PM

 Preface | xiii

Court Decisions
Court Decisions convey to students the overall importance of “classic” cases in the
development of the law and their continuing relevance to business today. These boxes
are presented with commentary at the beginning and end, with the main body being
C h a p T E r 1 The Law and the Legal System | 19
excerpted from actual cases.

COURT DECISION: PRACTICAL APPLICATION OF THE LAW

CHARTER OF RIGHTS—FREEDOM OF EXPRESSION

Excerpted from: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199, 1995 CanLII
64 (SCC).

In September 1995, the Supreme Court of Canada settled a manufacturer’s challenge to the Tobacco Products Control
Act, which had imposed a virtual ban on tobacco advertising, sales displays, and displays of brand names at sporting

CHAPTER 3
and cultural events. The Supreme Court concluded that the statute violated s. 2(b) expression rights of the Charter, and
were not demonstrably justified in a free and democratic society. The test for justification was set out by Madam Justice
(later Chief Justice) McLachlin as follows:

Business Regulation
THE SUPREME COURT of Canada — There is merit in reminding ourselves of the words chosen by those who
framed and agreed upon s. 1 of the Charter. First, to be saved under s. 1 the party defending the law (here the
Attorney General of Canada) must show that the law which violates the right or freedom guaranteed by the Charter
is “reasonable.” In other words, the infringing measure must be justifiable by the processes of reason and rationality.
The question is not whether the measure is popular or accords with the current public opinion polls. The question is
rather whetherOBJECTIVES
CHAPTER it can be justified by application of the processes of reason. In the legal context, reason imports the
notion of inference from evidence or established truths. This is not to deny intuition its role, or to require proof to the
standards required by science in every case, but it is to insist on a rational, reasoned defensibility.
After study
Second, of thisitschapter,
to meet burden understudents
s. 1 of theshould bestate
Charter, the able to:show that the violative law is “demonstrably
must
justified.” The choice of the word “demonstrably” is critical. The process is not one of mere intuition, nor is it one
• Describe the effect of regulation and distinguish it from legislation.
of deference to Parliament’s choice. It is a process of demonstration. This reinforces the notion inherent in the word
• Identify andof describe the activities of administrative tribunals.
Your Business at Risk
“reasonable” rational inference from evidence or established truths.
The bottom line is this. While remaining sensitive to the social and political context of the impugned law and
• Recognize matters ofofproof
allowing for difficulties federal versus
inherent provincial
in that context, thejurisdiction.
courts must nevertheless insist that before the state can
Most chapters open
override constitutional
with
rights, of
there
abefeature
a reasoned
example that relates the chapter content to the
• Describe the elements natural justice.demonstration of the good which the law may achieve in relation to
management
the seriousness ofoftherisk in a business
infringement. It is the taskorganization.
of the courts to maintain this bottom line if the rights conferred by our
Constitution are to have force and meaning. The task is not easily discharged, and may require the courts to confront the
tide of popular public opinion. But that has always been the price of maintaining constitutional rights. No matter how
important Parliament’s goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its
Your Business at Risk
goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail.
...
Many businesses
. . . In determining are tempted
whether to gloss
the objective over
of the law or ignore seemingly
is sufficiently important to be capable of overriding a
burdensome
guaranteed administrative
right, the court must examine rulestheand procedures.
actual However,
objective of the govern- proportionality, it must
law. In determining
determine the actual connection
ment regulation between the objective
and administrative tribunals andhave
what the law power
more will in fact achieve; the actual degree to
than
which it impairs the right; and whether the actual benefit which the law is calculated to achieve outweighs the actual
most business persons realize. Failing to comply with administrative
seriousness of the limitation of the right. In short, s. 1 is an exercise based on the facts of the law at issue and the
lawoffered
proof provisions can result
of its justification, notinonimmediate
abstractions. and drastic consequences for
. . . Context and
businesses is essential
their inowners.
determining legislative objective and proportionality, but it cannot be carried to the
extreme of treating the challenged law as a unique socio-economic phenomenon, of which Parliament is deemed the
best judge. This would be to undercut the obligation on Parliament to justify limitations which it places on Charter rights.

In spite of this judgment, today there are no tobacco advertisements. How do you think government(s) accomplished
this, faced with a Charter protection of expression?
Management
Introduction Alert: Best Practice
These features illustrate risky situations in which business law principles can be used to
46 | pA R T 1 The Legal environment for Business
Mobility
avoid seriousand personal
hazards Liberty
or to seize
Administrative law,business opportunities.
broadly speaking, encompasses much more than what we normally
consider to be “laws,” because it includes not only legislative acts of all levels of govern-
An important
ments, right
but the enshrined
rules, in theand
decisions, otheris directives
Charter found in s.of
6, public
which provides
officials,that Canadian
agencies, boards,
citizens are free to remain
and commissions createdin,by
enter,
theseor statutes
leave Canada, andout
to carry to move freely within
the policies set outthein the legisla-
MANAGEMENT
country. ALERT:
Canadians
tion. Unlike BEST
have PRACTICE
legislationalways assumed
that clearly that they laws
establishes enjoyed
thatthese
are rights, but in through
enforceable the past, the
courts, administrative laws generally set out broad policy objectives of the government,
While simple actions can then bedelegate
undertakenthebyenforcement
a paralegal in of
SmalltheClaims
policyCourt,
to anthe
entity that is created
complexities of cases to
andadminister
senior the
courts rapidly require policy and of
the services ensure compliance
a lawyer. withcharge
Many lawyers it by hundreds
affected ofparties.
dollars per hour for services that
range from an hour of workThe process
to weeks is usually quite
of preparation uniform.
for trial. In person
A business most cases, a statute
must coldly is passed
analyze whethertoa create
lawsuit is cost-effectivea in the dispute
board, at hand,
agency, or whether settlement
or commission to supervise or alternative dispute
an activity. Theresolution is more
statute will also set out
appropriate. broad policy guidelines for the regulation of the activity by the particular agency. These
administrative
tribunals boards or commissions are sometimes referred to as administrative tribunals, and to
enable the tribunals to carry out their public policy goals they are generally allowed to
agencies created
The Law
by legislation to Reports and
set their ownCase Citations
procedures and rules. These may either be approved by the government as
regulate activities or an Order-in-Council, or approved by the minister in charge of the tribunal, depending
do specific things. The
uponCommon Law, as noted
the importance in Chapter
attached 1, consists of the recorded judgments of the
to the regulations.
courts. Each time a judge hands down a decision, the decision constitutes a part of
the body of Common Law. Most of these decisions simply confirm or apply existing 57
Common Law principles. However, when a Common Law principle is applied to a new
or different situation, the decision of the court is usually published and circulated to the
wil54893_fm_i-xx.indd 13 legal profession. These published decisions are called law reports. 1/6/20 6:42 PM
 Chapter 2 the Judicial System and alternative Dispute resolution | 43

xiv | Preface Hearsay example: Steve is the defendant. Terri, as witness, tells the Court: “On
Thursday, Marjan told me that on Wednesday, Steve admitted to him that he had
driven the car to Edmonton.”

Clients, Suppliers, or Operations

Hearsay problem: in Quebec
What matters to the court is what was said by the defendant,
Steve. Terri was not present on Wednesday to know what, if anything, Steve said
Businesses in the Common
to Marjan.LawSteveprovinces
may have saidthat deal
others with
things Quebec
as well firms
(for better will be
or worse), andsubject
to the rules imposedTerri knows only what
by Quebec’s CivilMarjan
Code.has Tochosen to tell her,
emphasize thiswhether true the
reality, or not.
Clients,
Suppliers, or Operations
Hearsay infix:
Quebec feature
Terri should not beillustrates how common
a witness. Marjan transactions
should be called as a witnessmay
to be
attest to what Steve did, or did not, say to Marjan on Wednesday.
treated differently in Quebec.

ChApTeR 2 The Judicial System and Alternative Dispute Resolution | 43

CLIENTS, SUPPLIERS, OR OPERATIONS IN QUEBEC

Be aware that civil law legal proceedings are conducted very differently in Quebec. In addition to significant proce-
Hearsay example: Steve is the defendant. Terri, as witness, tells the Court: “On
dural differences, civil law judges play a much more active role in the trial than their Common Law counterparts.
Thursday, Marjan told me that on Wednesday, Steve admitted to him that he had
For example, the civil law judge is active in the conduct of investigation of the facts at issue, questioning witnesses
driven the car to Edmonton.”
from the bench in both criminal and civil matters.
Hearsay problem: What matters to the court is what was said by the defendant,
Steve. Terri was not present on Wednesday to know what, if anything, Steve said
Appeal
to Marjan. Steve may have said others things as well (for better or worse), and
Checklists
Terri knows only what Marjan
If either of thehas chosen
parties to tell
believe her,
that thewhether trueerred
trial judge or not.
in some manner (such as in
42 | pA R T 1 The Legal environment
Hearsay fix:forTerri
These numbered lists
the application
Business
should not be aofwitness.
substantiate the key
the law, Marjan
points
or the admission
in Atheshould beofcalled
chapter.
certain
asevidence),
a witness an
to appeal may be
lodged with the appropriate Appeal Court. notice of appeal must be served within
attest to what Steve did, or did not, say to Marjan on Wednesday.
a relatively short time after the trial judgment is handed down. Then an appeal book
Checklist containing all material for
for Examinations concerning
Discoverythe appeal is prepared by counsel for the Appeal
Court. The Appeal Court will review the case and, if it finds no errors, will affirm the
decision of the Trial Court and dismiss the appeal. On the other hand, if it should
1. Attend the discovery with legal counsel, and keep calm.
CLIENTS, SUPPLIERS, find that the Trial Court erred in reaching its decision, it may admit the appeal and
2. Say nothing in the presence of IN
OR OPERATIONS QUÉBEC
others before or after the examination.
reverse the decision of the Trial Court, vary the decision, or send the case back for a
3. When questioned, be truthful, and tell the whole truth. Your forthrightness or
new trial.
deception are
Be aware that civil law legal proceedings willconducted
be evidentveryin the transcript
differently or at trial.
in Quebec. In addition to significant proce-
dural differences, civil law4. Listen
judges playtoa questions
much moreand do role
active not rush
in thetotrial
respond.
than their Common Law counterparts.
For example, the civil law 5. Request
judge clarification
is active of questions
A Small
in the conduct ofClaims you do
Court
investigation of not
judge really
facts atunderstand,
therefused to and request
allowquestioning
issue, a defendant to enter certain evidence
witnesses
simplification of concerning
overly her defence.
complex questions. The defendant appealed the resulting judgment against
from the bench in both criminal and civil matters.
6. Think, form your her to theand
answer, provincial Court ofYour
speak clearly. Appeal.
answerThe will
Court
beoftranscribed
Appeal dismissed the appeal.
from a tape recording,The defendant
so do notthen appealed
answer with the Appeal Court
an expression or decision
gesture;to the Supreme Court
your
oral answer must of Canada.
stand on itsThe Supreme Court of Canada gave leave to appeal, heard the appeal,
own.
Appeal
7. Speak only of facts and sent the
within case
your back toknowledge.
personal the Small Claims Court for a new trial, directing the
8. If you don’t know,court to hear
say so. Don’ttheguess,
defendant’s evidence exaggerate,
give opinions, in the courseorofestimate.
If either of the parties believe that the trial judge erred in some manner (such as in
the trial.
9. Reject attempts
the application of questioners
of the law, to summarize
or the admission or re-characterize
of certain evidence), an your appealanswers
may be
for your
lodged with theagreement.
appropriate Appeal Court. A notice of appeal must be served within the litigation
Very recently, a number of provinces have made efforts to streamline
10. Onceshort
a relatively you have answered
timeprocess.
after the the question,
trial judgment stop speaking.
is handed down.
Most have attempted to remove some Then
of the an appeal book
unnecessary steps in the
11. Lookalltomaterial
containing your counsel for guidance
concerning whenisyou
the eliminated
appeal need it. by counsel for the Appeal
prepared
pleadings process, archaic terms and the use of Latin terminology, and
Court. The Appeal Court have will
placereview
greaterthe responsibility
case and, ifonitlegal
findscounsel to expedite
no errors, trial matters.
will affirm the
decision of the Trial Court and dismiss the appeal. On the other hand, if it should
Trialthat the Trial Court erred in reaching its decision, it may admit the appeal and
find
Shaded Examples
reverse the decision of the Trial Court, vary the decision, or send the case back for a
At trial, the case follows a procedure that differs from that of a criminal action. In a civil
new trial. are shaded throughout the text to reinforce the chapter material.
Examples
matter, the counsel for the plaintiff usually begins the case with an opening statement
that briefly sets out the issues and the facts that the plaintiff intends to prove. Witnesses
are Acalled,
Smalland evidence
Claims Courtisjudge
presented
refusedto prove theafacts
to allow in the claim.
defendant to enterAllcertain
witnesses may
evidence
be subject to cross-examination
concerning her defence. Theby defence counsel.
defendant appealed the resulting judgment against
On the completion of the plaintiff’s case, counsel for the defendant may ask the
her to the provincial Court of Appeal. The Court of Appeal dismissed the appeal.
judge to dismiss the plaintiff’s case if the evidence fails to establish liability on the
The defendant then appealed the Appeal Court decision to the Supreme Court
defendant’s part. Again, if the judge does not agree with the defendant, the action will
of Canada. The Supreme Court of Canada gave leave to appeal, heard the appeal,
proceed, and the defendant must enter evidence by way of witnesses to prove that the
and sent the case back to the Small Claims Court for a new trial, directing the
plaintiff’s claim is unfounded. Defence witnesses, like the plaintiff’s witnesses, may be
court to hear the defendant’s evidence in the course of the trial.
subject to cross-examination.
Witnesses may be of two kinds: ordinary witnesses who testify as to what they saw,
heard, or did (direct evidence); and expert witnesses who are recognized experts on
Very recently,
a particular subjecta and
number
give of provinces
opinion have on
evidence made efforts
matters to fall
that streamline the litigation
within their area of
process. Most have attempted to remove some of the unnecessary
special knowledge. A medical expert testifying as to the likelihood of a plaintiff steps in the
suffering
pleadings
permanentprocess,
physicaleliminated
damage as archaic
a result ofterms and the
an injury use be
would of an
Latin terminology,
example andof
of this type
have place greater responsibility on legal counsel to expedite trial matters.
expert witness. An accountant testifying about the financial accounts or transactions of
a corporation would be another example of an expert witness.
Courts will generally insist that only the “best evidence” available be presented to
the court, so, for this reason, a court will not normally allow hearsay evidence. Hearsay
evidence is evidence given by a person that is not within that person’s own direct
knowledge. Because the statements would not be open to challenge on cross-examina-
tion, the courts will not usually admit such evidence. Consequently, a party wishing
to have the particular evidence placed before the court would be obliged to bring the
person with the direct knowledge before the court to testify about it.
wil54893_fm_i-xx.indd 14 1/6/20 6:42 PM
When all of the evidence has been entered, counsel argue the relevant points of law
 CLIENTS, SUPPLIERS, OR OPERATIONS IN QUEBEC

The Civil Code of Quebec provides the following Articles, which chiefly govern failure to create enforceable contracts
within the province:
1375. The parties shall conduct themselves in good faith both at the time the obligation is created and at the time it
is performed or extinguished.
1399. Consent may be given only in a free and enlightened manner. It may be vitiated by error, fear or lesion.
Preface | xv
1407. A person whose consent is vitiated has the right to apply for annulment of the contract; in the case of error
occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also claim damages or, where he prefers

Charts and Diagrams

that the contract be maintained, apply for a reduction of his obligation equivalent to the damages he would be
justified in claiming.

Charts
Note, in and diagrams
Article 1399, haveequal
“lesion” is roughly been included throughout the text serving to illustrate and
to “exploitation.”
clarify important concepts.
Figure 11–1 illustrates the effect of flaws on a contract.

FIGURE 11–1 Summary of Flaws in Creation of a Legal relationship

Effect on Additional Rights of
Flaw Agreement Injured Party

Mistake Void/Voidable

Innocent
Voidable
Misrepresentation

Fraudulent
aGrEEMENt Voidable tort of Deceit
Misrepresentation

Negligent
Voidable
Misrepresentation

Undue Influence Voidable

Duress Voidable

29. Kaufman v. Gerson, [1904] 1 K.B. 591.

End of Chapter Material

Chapter Summary
A summary at the end of each chapter reviews the important concepts of the chapter.

Key Terms
Within each chapter of the eBook, key terms appear as a pop-tip definition. In the print
text, there is a running glossary in the margins of the text for quick reminders. For
reference, there is a comprehensive list of key terms at the end of each chapter and a
full glossary at the back of the text.

Review Questions
These questions assist students with their review of the chapter material.

Mini-Case Problems
The brief mini-case problems allow students to apply the concepts learned in the
chapter.

Case Problems for Discussion

Each chapter concludes with extensive case material that offers students the opportu-
nity to apply the law to specific situations and arrive at their own conclusions as to how
a case should be decided.

wil54893_fm_i-xx.indd 15 1/6/20 6:42 PM

 xvi | Preface

A Note about Access to Canadian Legal Cases

Canadian courts and legislatures have recognized that public electronic access to the
full text of legal judgments and statutes is an important aspect of access to justice, and
virtually all are now available via the Internet. Of note is the work of the Canadian
Legal Information Institute (CanLII) whose website, www.canlii.org, provides free
comprehensive access to current Canadian cases and legislation. Other commercial
data banks cross-reference cases in a number of different ways to permit advanced
computer-accessible searches, with holdings that include an increasing number of
older leading cases.
JAW / JHW

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 Effective. Efficient. Easy to Use. Impact of Connect on Pass Rates
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xvii

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 xviii | Abbreviations

Abbreviations of Legislation
C.C.C. Criminal Code of Canada
C.C.S.M. Continuing Consolidation of the Statutes of Manitoba
C.S. <province> Consolidated Statutes of <province>
Edw. Edward, followed by Roman numeral, Kings of England or (later)
United Kingdom
Eliz. Elizabeth II, Queen of United Kingdom and other
Commonwealth realms
Geo. George, followed by Roman numeral, Kings of Great Britain or
(later) United Kingdom
Hen. IV Henry IV, King of England
R.S. <province> Revised Statutes of <province>, followed by year of revision
R.S.C. Revised Statutes of Canada, followed by year of revision
S. <province> Statutes of <province>, followed by year of enactment
S.C. Statutes of Canada, followed by year of enactment
Vic. Victoria, Queen of United Kingdom & Ireland
Wm. IV William IV, King of United Kingdom & Ireland

Abbreviations of Courts of Canada or a Province,

appearing in neutral citation
SCC Supreme Court of Canada
FC Federal Court of Canada
FCA Federal Court of Appeal
TCC Tax Court of Canada
CACT Competition Tribunal

ABCA Alberta Court of Appeal

ABQB Alberta Court of Queen’s Bench
BCCA British Columbia Court of Appeal
BCSC British Columbia Supreme Court
MBCA Manitoba Court of Appeal
MBQB Manitoba Court of Queen’s Bench
NBCA Court of Appeal of New Brunswick
NBQB Court of Queen’s Bench of New Brunswick, Trial Division
NLCA Supreme Court of Newfoundland and Labrador (Court of Appeal)
NLTD Supreme Court of Newfoundland and Labrador (Trial Division)
NSCA Nova Scotia Court of Appeal
NSSC Nova Scotia Supreme Court
NUCA Nunavut Court of Appeal
NUCJ Nunavut Court of Justice
NWTCA Court of Appeal for the Northwest Territories
NWTSC Supreme Court of the Northwest Territories
ONCA Court of Appeal for Ontario
ONSC Ontario Superior Court of Justice
ONSCDC Ontario Superior Court of Justice, Divisional Court

wil54893_fm_i-xx.indd 18 1/6/20 6:42 PM

 Abbreviations | xix

PESCAD Prince Edward Island Supreme Court, Appeal Division

PESCTD Prince Edward Island Supreme Court, Trial Division
QCCS Quebec Superior Court
QCCA Quebec Court of Appeal
SKCA Court of Appeal of Saskatchewan
SKQB Court of Queen’s Bench of Saskatchewan
YKCA Court of Appeal of the Yukon Territory
YKSC Supreme Court of the Yukon Territory

Acknowledgments
Text revisions require constructive comments from users as well as from others in the
academic community, and we, the authors, are grateful to many reviewers who have
provided suggestions and advice to assist us in the preparation of this new edition.
Their feedback and comments during the review process were most appreciated, and
to them we give credit for making this edition a more useful and responsive text for the
business law student.
Our special thanks also go to our researchers and professional colleagues, Demi
McGoldrick, BA, DipLP (University of Edinburgh), and Michael McGoldrick, BA, DipLP
(University of Edinburgh), both of the Bar of Ontario. Their skill, dedication, and interest
in this text, and above all, their many and fine contributions to the finished product, are
greatly appreciated.
As always, our very special thanks go to Fran Willes, BA, MPl. For all 12 editions
she has not only managed the many administrative details associated with the prepara-
tion of the manuscript for publication with unflagging dedication, but also used her
unique management skills to organize the authors and their work to ensure that produc-
tion deadlines were met. Our special thanks also go to Melissa Hudson, our Content
Developer, for her skill, enthusiasm, and professionalism in her careful editing work on
the text.
Special thanks also go to the McGraw-Hill staff: Kevin O’Hearn, Senior Product
Manager; Janie Deneau, Supervising Editor; Sarah Fulton, Copy Editor; and Tracey
Tanaka, Permissions Editor, for their kind support and encouragement in the prepara-
tion of the text for publication. Our thanks as well to Dianne Reynolds, cover designer,
David Montle, interior designer, and MPS Limited, typesetter, for their professional and
thorough work on the layout and design.

wil54893_fm_i-xx.indd 19 1/6/20 6:42 PM

wil54893_fm_i-xx.indd 20 1/6/20 6:42 PM
 Part 1: The Legal
Environment
for Business

1 The Law and the Legal System

2 The Judicial System and Alternative Dispute Resolution

3 Business Regulation

wil54893_ch01_001-029.indd 1 1/6/20 6:45 PM

 Chapter 1

The Law and the

Legal System
Chapter Objectives
After study of this chapter, students should be able to:
• Describe the sources, role, and development of Canadian law.
• Distinguish between statute and Common Law, and describe the significance
of stare decisis.
• Recognize matters of federal versus provincial jurisdiction.
• Describe the fundamental rights and freedoms set out in the Charter of Rights
and Freedoms.

Learning the Law

You are a player in the game of life, and Canadian society has its own set of rules for
playing the game. Many of these rules — laws — you know already through educa-
tion, experience, or the media. However, you probably know there are gaps in your
education and experience in this field, and the media tends to dwell on only the
sensational stories.
Together we will bridge this gap, for business law is important to business persons.
To begin with, this knowledge keeps your business out of trouble. Better yet, you can
use the law and your rights to advance your business interests. You can be sure you will
encounter people who are well aware of their rights — your customers, employers, and
investors, to name three — and they will be unforgiving if you and your business do not
know the business law applicable to your enterprise.
There are some peculiarities, however, about learning the law. For instance, you will
notice that some of the cases in this book are centuries old, while others are only a few
months old. This is not a random choice. Old cases making clear statements of the law
are the “fine wine” of our legal system. They have withstood the test of time, and are
used daily in our courts. New cases become important when the legal principles of our
society change. Thus you will find a case in this book from the year 1348 — when it was
established that it was a bad thing to throw an axe at someone. It is still a bad thing to
chuck nasty objects at people, so the case remains a valid statement of the law. You will
also find cases from today’s news, for example, a case of defamatory emails sent by a
dissatisfied customer. Old laws or new developments, we include cases that display the
current law as clearly as possible.
Clarity is important and it comes from understanding the big picture as well as
necessary details. It is nice to learn that there is a good restaurant “on the east side of
town,” but it is even more useful to get the address. Rest assured that we will provide
2

wil54893_ch01_001-029.indd 2 1/6/20 6:45 PM

 C h a p te r 1 The Law and the Legal System | 3

you with the big picture, and we will give you the details where they are important. In
fact, when we plunge into some serious detail, that is your cue to watch out for things
that can have a serious impact on your business.
One final thought on the big picture: many of our chapters have an historical sec-
tion telling you the roots of today’s law. We are not history buffs, but these sections are
included because they are sometimes the best explanation of why rather strange aspects
of the law exist today. In addition, knowing where the law has come from is a big help
in understanding where it is going — which makes this book useful long after the course
is over.

The Legal Environment for Business

In Canada, one would expect that any individual or group of individuals would be free
to establish and carry on a business activity in any manner that they see fit. This is not
the case, however. Modern business operates in an exceedingly complex legal environ-
ment. Laws govern the formation of many types of business organizations, the products
they may manufacture or sell, the conditions under which the employees of a business
may work, the relationships between customers and competitors and, indeed, between
the business owners themselves. These laws present a complicated web of rules and
regulations for the business person, and they may ensnare the unwary as well as those
who deliberately ignore them.
Very briefly, business law may be divided into a number of general areas. These
include tort law, which represents an area of the law largely concerned with injury to
others. These injuries may arise as a result of the negligent production of goods causing
injury to the consumer, careless professional service causing physical or economic loss,
unsafe operating premises, or injury to others in a myriad of other ways either directly
or through the actions of employees.
A second major area of the law is concerned with the basis of most business activity.
This is contract law, and represents the law that has, perhaps, the greatest application
in the day-to-day operations of a business organization. Contract law facilitates the
purchase and sale of goods, the employment of staff, the assignment or reduction of risk
(through insurance contracts), and some forms of organization of the business itself.
Special contractual relationships and laws that control these and other business relation-
ships include bailment, labour law and employment, negotiable instruments, consumer
protection, and the law relating to restrictive trade practices.
A knowledge of the law relating to the formation and operation of business
organizations is also important in order to determine the appropriate vehicle by which
to conduct business activities. For this reason, an understanding of partnerships,
corporations, and certain trusts is essential. Also important is a knowledge of how
a physical location is acquired for business operations. Land law, which covers the
purchase or leasing of premises or the financing of the purchase of land and build-
ings, sets out the rules for these business activities. The final areas of the law that are
of interest to business include the securing of debt in credit transactions, bankruptcy
law, international trade, environmental law, and the protection of intellectual and
industrial property. Persons engaged in business must have at least a rudimentary
knowledge of these areas of the law in order to function effectively in a business
environment.
Many of these laws simply reflect behavioural norms — how fair-minded people
would expect to be treated by others — but some laws go much further in that they
are designed to enforce or control policy. Legislation that requires the licensing of the

wil54893_ch01_001-029.indd 3 1/6/20 6:45 PM

 4 | Pa r t 1 The Legal Environment for Business

various professions or laws that control the possession or use of certain goods, such as
drugs or explosives, are examples of the latter policies.
It is important for all business persons to be aware of the areas of the law that
affect them in the conduct of their business activities, not only from the point of view
of knowing their rights at law, but to ensure their own compliance with all relevant
legislation.

The Nature of Law

The law holds a special fascination for most people. This is perhaps partly due to the
fact that the law has become so all-pervasive that we are constantly reminded of its
presence. The law is also of interest because it reflects the society in which we live. It
determines the rights and freedoms of the individual, and the extent to which privileges
may be enjoyed. At any given time the law represents the values and concerns of the
people in the jurisdiction from which it arose, and examining the historical development
of the laws of a society is much like examining the society itself, for the two are woven
together. The law touches so many facets of human endeavour that it would be difficult
to imagine how a modern society might exist without it. It has become, in fact, the
very essence of society. This is reason enough to justify the study of its principles and
application.

Definitions of “Law”
The word “law” has been applied to so many rules, principles, and statements that it
is probably incapable of exact definition. Legal philosophers have agonized over the
meaning of the term and have wrestled with its sources and nature since the earliest of
times. Part of the difficulty in reaching a precise definition is the nature of law itself.
It is very much a concept rather than an object or thing that has clearly defined limits.
Simple definitions may be attempted, however, bearing in mind that the definition may
not be precise or all-encompassing.
We could say “the law” is society’s rules and processes that try to create fair and
predictable outcomes in our relationships. This definition covers much of the law that
affects interpersonal and commercial relationships and, in particular, the Common
Law (which is simply the recorded judgments of the courts). Modern society has
prompted others to offer definitions of the law, each in an attempt to explain the nature
and purpose of the law as succinctly and precisely as possible. Salmond, for example,
described the law as the “body of principles recognized and applied by the state in the
administration of justice.”1
Oliver Wendell Holmes, the distinguished American jurist, once described the
law as “a statement of circumstances in which the public force will be brought to bear
through the Courts.”2 Blackstone, in his famous Commentaries on the Law of England,
defined the law as “a rule of civil conduct, prescribed by the supreme power in a state,
commanding what is right, and prohibiting what is wrong.”3

1. Williams, G., Salmond on Jurisprudence, 11th ed. (London: Sweet & Maxwell Ltd., 1954), p. 41.
2. Corley, R.N., and Black, R.L., The Legal Environment of Business, 2nd ed. (New York: McGraw-Hill Book Company, 1968), p. 4.
3. Lewis, W.D., Blackstone’s Commentaries on the Law of England (Philadelphia: Rees, Welsh & Company, 1897), book 1, s. 2, para 44.

wil54893_ch01_001-029.indd 4 1/6/20 6:45 PM

 C h a p te r 1 The Law and the Legal System | 5

Rights versus Privileges

Each of these definitions implies that something will happen if an individual does not
obey the rules or respect the rights of others. To understand the operation or application
of the law, then, it is necessary to know what constitutes a right, and to distinguish this
right from that which constitutes a privilege. When we say we have the “right” to do
something, we are saying that we may do the particular act with impunity, or with the
force of the state behind us. Because rights are closely associated with duties, our right
to do an act usually imposes a duty on others not to interfere with our actions. What the
law does is set out our rights and duties so that everyone will know what they are, and
to whom they apply. In a similar fashion, the law sets out actions that are not rights and
duties, but privileges.
Privileges are actions that may be taken by an individual under specific cir-
cumstances and that may be withdrawn or limited by the state. Rights enjoyed by
individuals often become privileges as a result of social pressure or public policy.
Sometimes, rights may also become privileges out of a desire by government to increase
public safety as well as increase the flow of funds to the public purse through licence
fees. Statutes relating to driver's licences or broadcasting licences are examples of laws
of this nature.

The Role of Law

The law also represents a means of social control, and a law in its most basic form is
the law simply an obligatory rule of conduct.4 The law, in contrast to a single law, consists of
the body of rules the body of rules of conduct laid down by a sovereign or governing body to control the
of conduct that are actions of individuals in its jurisdiction. It is normally enforced by sanctions. The law
obligatory in the sense
develops to meet the needs of the people in a free society and changes with their chang-
that sanctions are
normally imposed if a ing needs. For this reason, the law tends to respond to the demands of a free society,
rule is violated. rather than shaping its nature. However, laws may arise in other ways as well.

Social Control
Laws established and enforced by legislators that are not in response to the demands
of the majority of citizens of the state may be introduced to shape or redirect society
in ways that legislators perceive as desirable. Laws of this type represent a form of
social engineering that frequently restricts individual rights and freedoms, and very
often transfers individual rights and powers to the governing body. Laws of this nature
represent a growing proportion of Canadian law, but this form of legislation is not a
recent phenomenon.
Laws that legislatures have attempted to impose on society to alter the behaviour of
the majority normally prove to be ineffective unless enforced by oppressive penalties or
complete government control of the activity. In a business context, compulsory, pro-
vincially operated automobile-insurance schemes in a number of provinces in Canada
represent examples of legislation of the latter kind. It tends to be of a confiscatory
nature: the government, by decree, transfers the right to engage in the activity to itself
and virtually excludes all private-sector insurers. Provinces with this type of legislation

4. Osborn, P.G., The Concise Law Dictionary, 7th ed. (London: Sweet & Maxwell, Ltd., 1983), p. 194.

wil54893_ch01_001-029.indd 5 1/6/20 6:45 PM

Another random document with
no related content on Scribd:
have vastly increased the product,—would have improved and
beautified the whole face of the country; and the Moral and
Intellectual advantages thence accruing would alone have been
inestimable. A season of suspension of labor in a community is
usually one of aggravated dissipation, drunkenness, and crime.
But let me more clearly illustrate the effect of foreign competition
in raising prices to the consumer. To do this, I will take my own
calling for an example, because I understand that best; though any of
you can apply the principle to that with which he may be better
acquainted. I am a publisher of newspapers, and suppose I afford
them at a cheap rate. But the ability to maintain that cheapness is
based on the fact that I can certainly sell a large edition daily, so that
no part of that edition shall remain a dead loss on my hands. Now, if
there were an active and formidable Foreign competition in
newspapers,—if the edition which I printed during the night were
frequently rendered unsalable by the arrival of a foreign ship
freighted with newspapers early in the morning,—the present rates
could not be continued: the price must be increased or the quality
would decline. I presume this holds equally good of the production of
calicoes, glass, and penknives as of newspapers, though it may be
somewhat modified by the nature of the article to which it is applied.
That it does hold true of sheetings, nails, and thousands of articles, is
abundantly notorious.
I have not burdened you with statistics,—you know they are the
reliance, the stronghold, of the cause of Protection, and that we can
produce them by acres. My aim has been to exhibit not mere
collections of facts, however pertinent and forcible, but the laws on
which those facts are based,—not the immediate manifestation, but
the ever-living necessity from which it springs. The contemplation of
these laws assures me that those articles which are supplied to us by
Home Production alone are relatively cheaper than those which are
rivalled and competed with from abroad. And I am equally confident
that the shutting out of Foreign competition from our markets for
other articles of general necessity and liberal consumption which can
be made here with as little labor as anywhere would be followed by a
corresponding result,—a reduction of the price to the consumer at
the same time with increased employment and reward to our
Producing Classes.
 But, Mr. President, were this only on one side true,—were it
certain that the price of the Home product would be permanently
higher than that of the Foreign, I should still insist on efficient
Protection, and for reasons I have sufficiently shown. Grant that a
British cloth costs but $3 per yard, and a corresponding American
fabric $4, I still hold that the latter would be decidedly the cheaper
for us. The Fuel, Timber, Fruits, Vegetables, &c., which make up so
large a share of the cost of the Home product, would be rendered
comparatively valueless by having our workshops in Europe. I look
not so much to the nominal price as to the comparative facility of
payment. And, where cheapness is only to be attained by a
depression of the wages of Labor to the neighborhood of the
European standard, I prefer that it should be dispensed with. One
thing must answer to another; and I hold that the farmers of this
country can better afford, as a matter of pecuniary advantage, to pay
a good price for manufactured articles than to obtain them lower
through the depression and inadequacy of the wages of the artisan
and laborer.
You will understand me, then, to be utterly hostile to that idol of
Free Trade worship, known as Free or unlimited Competition. The
sands of my hour are running low, and I cannot ask time to examine
this topic more closely; yet I am confident I could show that this Free
Competition is a most delusive and dangerous element of Political
Economy. Bear with a brief illustration: At this moment, common
shirts are made in London at the incredibly low price of three cents
per pair. Should we admit these articles free of duty and buy them
because they are so cheap? Free trade says Yes; but I say No! Sound
Policy as well as Humanity forbids it. By admitting them, we simply
reduce a large and worthy and suffering class of our population from
the ability they now possess of procuring a bare subsistence by their
labor to unavoidable destitution and pauperism. They must now
subsist upon the charity of relatives or of the community,—unless we
are ready to adopt the demoniac doctrine of the Free Trade
philosopher Malthus, that the dependent Poor ought to be rigorously
starved to death. Then what have we gained by getting these articles
so exorbitantly cheap? or, rather, what have we not lost? The labor
which formerly produced them is mainly struck out of existence; the
poor widows and seamstresses among us must still have a
subsistence; and the imported garments must be paid for: where are
the profits of our speculation?
But even this is not the worst feature of the case. The labor which
we have here thrown out of employment by the cheap importation of
this article is now ready to be employed again at any price,—if not
one that will afford bread and straw, then it must accept one that will
produce potatoes and rubbish; and with the product some Free-
Trader proceeds to break down the price and destroy the reward of
similar labor in some other portion of the earth. And thus each
depression of wages produces another, and that a third, and so on,
making the circuit of the globe,—the aggravated necessities of the
Poor acting and reacting upon each other, increasing the
omnipotence of Capital and deepening the dependence of Labor,
swelling and pampering a bloated and factitious Commerce, grinding
down and grinding down the destitute, until Malthus’s remedy for
Poverty shall become a grateful specific, and, amid the splendors and
luxuries of an all-devouring Commercial Feudalism, the squalid and
famished Millions, its dependants and victims, shall welcome death
as a deliverer from their sufferings and despair.
I wish time permitted me to give a hasty glance over the doctrines
and teachings of the Free Trade sophists, who esteem themselves the
Political Economists, christen their own views liberal and
enlightened, and complacently put ours aside as benighted and
barbarous. I should delight to show you how they mingle subtle
fallacy with obvious truth, how they reason acutely from assumed
premises, which, being mistaken or incomplete, lead to false and
often absurd conclusions,—how they contradict and confound each
other, and often, from Adam Smith, their patriarch, down to
McCulloch and Ricardo, either make admissions which undermine
their whole fabric, or confess themselves ignorant or in the dark on
points the most vital to a correct understanding of the great subject
they profess to have reduced to a Science. Yet even Adam Smith
himself expressly approves and justifies the British Navigation Act,
the most aggressively Protective measure ever enacted,—a measure
which, not being understood and seasonably counteracted by other
nations, changed for centuries the destinies of the World,—which
silently sapped and overthrew the Commercial and Political
greatness of Holland,—which silenced the thunder of Van Tromp,
and swept the broom from his mast-head. But I must not detain you
longer. I do not ask you to judge of this matter by authority, but from
facts which come home to your reason and your daily experience.
There is not an observing and strong-minded mechanic in our city
who could not set any one of these Doctors of the Law right on
essential points. I beg you to consider how few great practical
Statesmen they have ever been able to win to their standard,—I
might almost say none; for Huskisson was but a nominal disciple,
and expressly contravened their whole system upon an attempt to
apply it to the Corn Laws; and Calhoun is but a Free-Trader by
location, and has never yet answered his own powerful arguments in
behalf of Protection. On the other hand, we point you to the long
array of mighty names which have illustrated the annals of
Statesmanship of modern times,—to Chatham, William Pitt, and the
Great Frederick of Prussia; to the whole array of memorable French
Statesmen, including Napoleon the first of them all; to our own
Washington, Hamilton, Jefferson, and Madison; to our two
Clintons, Tompkins, to say nothing of the eagle-eyed and genial-
hearted LIVING master-spirit [Henry Clay] of our time. The opinions
and the arguments of all these are on record; it is by hearkening to
and heeding their counsels that we shall be prepared to walk in the
light of experience and look forward to a glorious National destiny.
My friends! I dare not detain you longer. I commit to you the cause
of the Nation’s Independence, of her Stability and her Prosperity.
Guard it wisely and shield it well; for it involves your own happiness
and the enduring welfare of your countrymen!
Henry A. Wise
 Against Know-Nothingism, Sept. 18, 1852.
The laws of the United States—federal and state laws—declare and
defend the liberties of our people. They are free in every sense—free
in the sense of Magna Charta and beyond Magna Charta; free by the
surpassing franchise of American charters, which makes them
sovereign and their wills the sources of constitutions and laws.
In this country, at this time, does any man think anything? Would
he think aloud? Would he speak anything? Would he write anything?
His mind is free; his person is safe; his property is secure; his house
is his castle; the spirit of the laws is his body-guard and his house-
guard; the fate of one is the fate of all measured by the same common
rule of right; his voice is heard and felt in the general suffrage of
freemen; his trial is in open court, confronted by witnesses and
accusers; his prison house has no secrets, and he has the judgment of
his peers; and there is nought to make him afraid, so long as he
respects the rights of his equals in the eye of the law. Would he
propagate truth? Truth is free to combat error. Would he propagate
error? Error itself may stalk abroad and do her mischief, and make
night itself grow darker, provided truth is left free to follow, however
slowly, with her torches to light up the wreck! Why, then, should any
portion of the people desire to retire in secret, and by secret means to
propagate a political thought, or word, or deed, by stealth? Why band
together, exclusive of others, to do something which all may not
know of, towards some political end? If it be good, why not make the
good known? Why not think it, speak it, write it, act it out openly and
aloud? Or, is it evil, which loveth darkness rather than light? When
there is no necessity to justify a secret association for political ends,
what else can justify it? A caucus may sit in secret to consult on the
general policy of a great public party. That may be necessary or
convenient; but that even is reprehensible, if carried too far. But here
is proposed a great primary, national organization, in its inception—
What? Nobody knows. To do what? Nobody knows. How organized?
Nobody knows. Governed by whom? Nobody knows. How bound? By
what rites? By what test oaths? With what limitations and restraints?
Nobody, nobody knows! All we know is that persons of foreign birth
and of Catholic faith are proscribed; and so are all others who don’t
proscribe them at the polls. This is certainly against the spirit of
Magna Charta.

A Prussian born subject came to this country. He complied with

our naturalization laws in all respects of notice of intention,
residence, oath of allegiance, and proof of good moral character. He
remained continuously in the United States the full period of five
years. When he had fully filled the measure of his probation and was
consummately a naturalized citizen of the United States, he then,
and not until then, returned to Prussia to visit an aged father. He was
immediately, on his return, seized and forced into the Landwehr, or
militia system of Prussia, under the maxim: “Once a citizen, always a
citizen!” There he is forced to do service to the king of Prussia at this
very hour. He applies for protection to the United States. Would the
Know-Nothings interpose in his behalf or not? Look at the principles
involved. We, by our laws, encouraged him to come to our country,
and here he was allowed to become naturalized, and to that end
required to renounce and abjure all allegiance and fidelity to the king
of Prussia, and to swear allegiance and fidelity to the United States.
The king of Prussia now claims no legal forfeiture from him—he
punishes him for no crime—he claims of him no legal debt—he
claims alone that very allegiance and fidelity which we required the
man to abjure and renounce. Not only so, but he hinders the man
from returning to the United States, and from discharging the
allegiance and fidelity we required him to swear to the United States.
The king of Prussia says he should do him service for seven years, for
this was what he was born to perform; his obligations were due to
him first, and his laws were first binding him. The United States say
—true, he was born under your laws, but he had a right to expatriate
himself; he owed allegiance first to you, but he had a right to
forswear it and to swear allegiance to us; your laws first applied, but
this is a case of political obligation, not of legal obligation; it is not
for any crime or debt you claim to bind him, but it is for allegiance;
and the claim you set up to his services on the ground of his political
obligation, his allegiance to you, which we allow him to abjure and
renounce, is inconsistent with his political obligation, his allegiance,
which we required him to swear to the United States; he has sworn
fidelity to us, and we have, by our laws, pledged protection to him.
 Such is the issue. Now, with which will the Know-Nothings take
sides? With the king of Prussia against our naturalized citizen and
against America, or with America and our naturalized citizen? Mark,
now, Know-Nothingism is opposed to all foreign influence—against
American institutions. The king of Prussia is a pretty potent foreign
influence—he was one of the holy alliance of crowned heads. Will
they take part with him, and not protect the citizen? Then they will
aid a foreign influence against our laws! Will they take sides with our
naturalized citizen? If so, then upon what grounds? Now, they must
have a good cause of interposition to justify us against all the
received dogmas of European despotism.
Don’t they see, can’t they perceive, that they have no other grounds
than those I have urged? He is our citizen, nationalized, owing us
allegiance and we owing him protection. And if we owe him
protection abroad, because of his sworn allegiance to us as a
naturalized citizen, what then can deprive him of his privileges at
home among us when he returns? If he be a citizen at all, he must be
allowed the privileges of citizenship, or he will not be the equal of his
fellow-citizens. And must not Know-Nothingism strike at the very
equality of citizenship, or allow him to enjoy all its lawful privileges?
If Catholics and naturalized citizens are to be citizens and yet to be
proscribed from office, they must be rated as an inferior class—an
excluded class of citizens. Will it be said that the law will not make
this distinction? Then are we to understand that Know-Nothings
would not make them equal by law? If not by law, how can they
pretend to make them unequal, by their secret order, without law
and against law? For them, by secret combination, to make them
unequal, to impose a burthen or restriction upon their privileges
which the law does not, is to set themselves up above the law, and to
supersede by private and secret authority, intangible and
irresponsible, the rule of public, political right. Indeed, is this not the
very essence of the “Higher Law” doctrine? It cannot be said to be
legitimate public sentiment and the action of its authority. Public
sentiment, proper, is a concurrence of the common mind in some
conclusion, conviction, opinion, taste, or action in respect to persons
or things subject to its public notice. It will, and it must control the
minds and actions of men, by public and conventional opinion.
Count Molé said that in France it was stronger than statutes. It is so
here. That it is which should decide at the polls of a republic. But,
here is a secret sentiment, which may be so organized as to
contradict the public sentiment. Candidate A. may be a native and a
Protestant, and may concur with the community, if it be a Know-
Nothing community, on every other subject except that of
proscribing Catholics and naturalized citizens: and candidate B. may
concur with the community on the subject of this proscription alone,
and upon no other subject; and yet the Know-Nothings might elect B.
by their secret sentiment against the public sentiment. Thus it
attacks not only American doctrines of expatriation, allegiance, and
protection, but the equality of citizenship, and the authority of public
sentiment. In the affair of Koszta, how did our blood rush to his
rescue? Did the Know-Nothing side with him and Mr. Marcy, or with
Hulseman and Austria? If with Koszta, why? Let them ask
themselves for the rationale, and see if it can in reason abide with
their orders. There is no middle ground in respect to naturalization.
We must either have naturalization laws and let foreigners become
citizens, on equal terms of capacities and privileges, or we must
exclude them altogether. If we abolish naturalization laws, we return
to the European dogma: “Once a citizen, always a citizen.” If we let
foreigners be naturalized and don’t extend to them equality of
privileges, we set up classes and distinctions of persons wholly
opposed to republicanism. We will, as Rome did, have citizens who
may be scourged. The three alternatives are presented—Our present
policy, liberal, and just, and tolerant, and equal: or the European
policy of holding the noses of native born slaves to the grind-stone of
tyranny all their lives; or, odious distinctions of citizenship tending
to social and political aristocracy. I am for the present laws of
naturalization.
As to religion, the Constitution of the United States, art. 6, sec. 3,
especially provides that no religious test shall ever be required as a
qualification to any office or public trust under the United States.
The state of Virginia has, from her earliest history, passed the most
liberal laws, not only towards naturalization, but towards foreigners.
But I have said enough to show the spirit of American laws and the
true sense of American maxims.
3d. Know-Nothingism is against the spirit of Reformation and of
Protestantism.
What was there to reform?
 Let the most bigoted Protestant enumerate what he defines to have
been the abominations of the church of Rome. What would he say
were the worst? The secrets of Jesuitism, of the Auto da fe, of the
Monasteries and of the Nunneries. The private penalties of the
Inquisition’s Scavenger’s Daughter. Proscription, persecution,
bigotry, intolerance, shutting up of the book of the word. And do
Protestants now mean to out-Jesuit the Jesuits? Do they mean to
strike and not be seen? To be felt and not to be heard? To put a
shudder upon humanity by the masks of mutes? Will they wear the
monkish cowls? Will they inflict penalties at the polls without
reasoning together with their fellows at the hustings? Will they
proscribe? Persecute? Will they bloat up themselves into that bigotry
which would burn nonconformists? Will they not tolerate freedom of
conscience, but doom dissenters, in secret conclave, to a forfeiture of
civil privileges for a religious difference? Will they not translate the
scripture of their faith? Will they visit us with dark lanterns and
execute us by signs, and test oaths, and in secrecy? Protestantism!
forbid it!
If anything was ever open, fair, and free—if anything was ever
blatant even—it was the Reformation. To quote from a mighty British
pen: “It gave a mighty impulse and increased activity to thought and
inquiry, agitated the inert mass of accumulated prejudices
throughout Europe. The effect of the concussion was general, but the
shock was greatest in this country” (England). It toppled down the
full grown intolerable abuses of centuries at a blow; heaved the
ground from under the feet of bigoted faith and slavish obedience;
and the roar and dashing of opinions, loosened from their
accustomed hold, might be heard like the noise of an angry sea, and
has never yet subsided. Germany first broke the spell of misbegotten
fear, and gave the watchword; but England joined the shout, and
echoed it back, with her island voice, from her thousand cliffs and
craggy shores, in a longer and louder strain. With that cry the genius
of Great Britain rose, and threw down the gauntlet to the nations.
There was a mighty fermentation: the waters were out; public
opinion was in a state of projection; liberty was held out to all to
think and speak the truth; men’s brains were busy; their spirits
stirring; their hearts full; and their hands not idle. Their eyes were
opened to expect the greatest things, and their ears burned with
curiosity and zeal to know the truth, that the truth might make them
free. The death-blow which had been struck at scarlet vice and
bloated hypocrisy, loosened tongues, and made the talismans and
love tokens of popish superstitions with which she had beguiled her
followers and committed abominations with the people, fall harmless
from their necks.
The translation of the Bible was the chief engine in the great work.
It threw open, by a secret spring, the rich treasures of religion and
morality, which had then been locked up as in a shrine. It revealed
the visions of the Prophets, and conveyed the lessons of inspired
teachers to the meanest of the people. It gave them a common
interest in a common cause. Their hearts burnt within them as they
read. It gave a mind to the people, by giving them common subjects
of thought and feeling. It cemented their Union of character and
sentiment; it created endless diversity and collision of opinion. They
found objects to employ their faculties, and a motive in the
magnitude of the consequences attached to them, to exert the utmost
eagerness in the pursuit of truth, and the most daring intrepidity in
maintaining it. Religious controversy sharpens the understanding by
the subtlety and remoteness of the topics it discusses, and braces the
will by their infinite importance. We perceive in the history of this
period a nervous, masculine intellect. No levity, no feebleness, no
indifference; or, if there were, it is a relaxation from the intense
activity which gives a tone to its general character. But there is a
gravity approaching to piety, a seriousness of impression, a
conscientious severity of argument, an habitual fervor of enthusiasm
in their method of handling almost every subject. The debates of the
schoolmen were sharp and subtle enough: but they wanted interest
and grandeur, and were besides confined to a few. They did not affect
the general mass of the community. But the Bible was thrown open
to all ranks and conditions “to own and read,” with its wonderful
table of contents, from Genesis to the Revelation. Every village in
England would present the scene so well described in Burns’s
“Cotter’s Saturday Night.” How unlike this agitation, this shock, this
angry sea, this fermentation, this shout and its echoes, this impulse
and activity, this concussion, this general effect, this blow, this
earthquake, this roar and dashing, this longer and louder strain, this
public opinion, this liberty to all to think and speak the truth, this
stirring of spirits, this opening of eyes, this zeal to know—not
nothing—but the truth, that the truth might make them free. How
unlike to this is Know-Nothingism, sitting and brooding in secret to
proscribe Catholics and naturalized citizens! Protestantism protested
against secrecy, it protested against shutting out the light of truth, it
protested against proscription, bigotry, and intolerance. It loosened
all tongues, and fought the owls and bats of night with the light of
meridian day. The argument of Know-Nothings is the argument of
silence. The order ignores all knowledge. And its proscription can’t
arrest itself within the limit of excluding Catholics and naturalized
citizens. It must proscribe natives and Protestants both, who will not
consent to unite in proscribing Catholics and naturalized citizens.
Nor is that all; it must not only apply to birth and religion, it must
necessarily extend itself to the business of life as well as to political
preferments.
 Kenneth Raynor, of North Carolina, on
Fusion of Fremont and Fillmore Forces.

Extracts from his Speech at Philadelphia, November 1, 1856.

My brother Americans, do you intend to let these mischief-makers
put you and me together by the ears? [Many voices; “no, no.”] Then
let us beat James Buchanan for the Presidency. [“We will—we will,”
and great applause.] He is the representative of slavery agitation; he
is the representative of discord between sections; he is the man
whom Northern and Southern agitators have agreed to present as
their candidate. If he be elected now, and the difficulties in Kansas be
healed, at the end of four years they will spring upon you another
question of slavery agitation. It will be the taking of Cuba from Spain,
or cutting off another slice from Mexico for the purpose of
embroiling the North against the South; and then, if I shall resist that
agitation, I shall be called an Abolitionist, again.

My countrymen, God forbid that I should attempt to dictate to you

or even advise you. I am not competent to do so. I know that
divisions exist among you, while I feel also confident that the same
purpose animates all your hearts. Do not suppose for one moment
that I am the representative of any clique or faction.
Unfortunately, I find that our friends here are in the same
condition in which the Jews were, when besieged by the Roman
general, Titus. Whilst the battering-rams of the Romans were beating
down their walls, and the firebrand of the heathen was consuming
their temple, the historian tells us that that great people were
engaged in intestine commotions, some advocating the claims of one,
and some of another, to the high priesthood of that nation; and
instead of the Romans devouring them, they devoured each other.
God forbid that my brother Americans should devour each other, at a
time when every heart and every hand should be enlisted in the same
cause, of overthrowing the common enemy of us all.
Who is that common enemy? [Voices, “The Democratic party.”]
Yes, that party have reviled us, abused us, persecuted us, and all only
because we are determined to adhere to the Constitution of our
country. Give Buchanan a lease of power for four years, and we must
toil through persecution, submit to degradation, or cause the streets
of our cities to run blood. But we will submit to degradation provided
we can see the end of our troubles. We are willing to go through a
pilgrimage, not only of four years, but of ten, or twenty, or forty
years, provided we can have an assurance that at last we shall reach
the top of Pisgah, and see the promised land which our children are
to inherit. God has not given to us poor frail mortals the power, at all
times, of controlling events. When we cannot control events, should
we not, where no sacrifice of honor is involved, pursue the policy of
Lysander, and where the lion’s skin is too short, eke it out with the
fox’s [applause]—not where principle is involved—not where a
surrender of our devotion to our country is at stake. No; never,
never!
I know nothing of your straight-out ticket; I know nothing of your
Union ticket; I know nothing of Fremont. I do know something of
Fillmore; but I would not give my Americanism, and the hopes which
I cherish of seeing Americanism installed as the policy of this nation,
for all the Fillmores, or Fremonts, or Buchanans, that ever lived on
the face of the earth.
St. Paul says, “if it offends my brother, I will eat no meat;” and if it
offends my brother here, I will not open my mouth. Nobody can
suspect me. [Voices: “certainly not.”] Then I say, can’t you combine
the vote of this state, and beat Buchanan? [This question was
responded to in the affirmative, with the greatest enthusiasm.]
Repeated cheers were proposed for the straight ticket, but the
responding voices were by no means numerous, and were mingled
with hisses. Such was the universal excitement, that for some
minutes the speaker was obliged to pause. He finally raised his voice
above the subsiding storm, and said:—
Come, my friends, we are all brothers; we are all seeking the same
end. Our object is the same. We are all struggling to reach the same
haven of safety. The only difference of opinion is as to the proper
means by which to accomplish our common end. Will not Americans
learn prudence from the past? Misfortune should have taught us
charity for each other. We have passed through the ordeal of
persecution together; we have been subjected to the same difficulties,
and the same oppression; we have been baptized (I may say) in the
same stream of calumny. Then, in the name of God—in the name of
our common country—in the name of Americanism—in the name of
American nationality—in the name of religious freedom—in the
name of the Union, I beseech you to learn charity for the difference
of opinion which prevails among you. Let brethren forbear with
brethren. Let us recollect that it is not by vituperation, by the censure
of our brethren, that we can ever accomplish this great end of
conquering a common enemy. My friends, how long are we to suffer?
How long will it be before we shall learn that it is only by a union of
counsels, a concentration of energy, a combination of purpose, that
we can destroy the common enemy of every conservative man. [Great
applause.]
I shall not attempt to advise you, for I am not competent to do it.
You have information which I do not possess. You know all the
undercurrents of opinion which prevail here in your community,
with which I am unacquainted; but will you allow an humble man to
express his opinion to brethren whom he loves? May I do it? I am a
Fillmore man—nothing but a Fillmore man, and if I resided here, I
would vote no ticket which had not the name of Millard Fillmore at
its head, and I would advise no Fillmore man to vote a ticket with
Fremont’s name on it; but I would vote for that ticket which would
make my voice tell at the polls.
Now let us look at this thing practically. In reading history I have
always admired the character of Oliver Cromwell. What was the great
motive by which he was actuated in overthrowing the house of
Stuart? It was unfailing devotion to principle. His motto was, “Put
your trust in God, and keep your powder dry.” I admire the devotion
to principle in every man who says that he does not intend to vote
any but the straight ticket, for it shows that Americanism has such a
lodgment in his heart, that he cannot bear even seemingly to
compromise it. That is “putting your trust in God;” but, my friends, is
it “keeping your powder dry?” The enemy may steal into the camp
while you are asleep, and may pour water upon your cartridges, so
that when the day of battle shall come, you may shoot, but you will
kill nobody. I want the vote of every American, on Tuesday next, to
tell. Would to God that you could give the twenty-seven electoral
votes of Pennsylvania to Fillmore. Then vote the straight ticket, if
that will give him the twenty-seven votes. But suppose it will not
(and I am afraid it will not), then the question is, had you better give
Buchanan the twenty-seven votes, or give Fillmore eight, ten, twelve,
or twenty, as the case may be. I go for beating Buchanan.
Gentlemen, you do not know what we Americans suffer at the
South. I am abused and reviled for standing up in defence of you.
When I hear the whole North denounced as a set of Abolitionists,
whose purpose it is to interfere with the peculiar institutions of the
South, I brand such charges as slanders on the Northern people. I tell
them that the great mass of the Northern people are sound on this
question; that they are opposed to slavery, as I should be if I were a
Northern man; but that I do not believe that the great mass of the
Northern people have any idea of interfering with the constitutional
rights of the people of the South. I know that such men as Garrison
and Forney have. I know that Garrison believes the Constitution to
be a “league with hell,” and would therefore destroy it if he could;
and I know that Forney loves office so well, that even at the risk of
snapping the Union, he will keep alive slavery agitation. But Garrison
does not represent New England, and Forney does not represent you.
As much as I have been reviled for standing by you, I am so
anxious to have Buchanan beaten, that were I residing here, if I could
not give Fillmore the whole twenty-seven votes, I would give him all I
could, by giving him the number to which he might be entitled by the
numerical proportion of the votes at the ballot-box. Yet, if there is a
brother American here who feels in his “heart of hearts,” that by
voting that Union ticket, he would compromise his Americanism, I
say to such an one, “do not vote that ticket.” At the same time,
candor compels me to say, that I differ in opinion with him. If I
believed that that ticket was a fusion, or that it called upon any
Fillmore man to vote for Fremont, I would advise no one to vote it. I
would not vote a ticket that had on it the name of Fremont; but I
would vote a ticket with Fillmore’s name upon it, and which would
give him (if not the twenty-seven electoral votes) seven, or ten, or
twenty, just as the numerical proportion of the votes might decide.
 I appeal to every conservative, Union-loving man in this nation,
who is disposed to give to the South all the constitutional privileges
to which she is entitled, and who wishes to rebuke the Democratic
party for the repeal of the Missouri compromise, and for keeping up
the eternal agitation of slavery. I appeal to you as a southern man—as
a slaveholder. I do not ask you to be pro-slavery men, to be the
advocates of slavery, when I say to you that we, your brethren of the
South, expect you to preserve our constitutional rights—and, God
knows, we ask nothing more—against fanatics, either north or south.
Will you do it?
My friends, the election is fast approaching. There is but little time
for deliberation left. Is there no way by which the votes of the anti-
Buchanan party can be concentrated on the same ticket? I would
shed tears of blood—God knows I would—if I could be instrumental
in prevailing on all true Americans to combine. I cannot tell you how
to combine; but is it yet too late? If it is too late to do it throughout
the state, cannot you in Philadelphia do it? The Presidential election
may depend upon the state of Pennsylvania, and the state of
Pennsylvania may depend upon the city of Philadelphia. On the vote
of the city of Philadelphia may depend not only our own rights, but
the rights of our children and our children’s children. I appeal to my
brother Americans, for I have no right to appeal to anybody else; I
cannot address the Fremont party, for I have no affiliation with
them; I cannot address the Buchanan party, for my object is to
destroy them if possible. To my American brethren, then, I appeal,
for God’s sake, do not let the sun rise upon that wrath, which I see
divides you. Your object is the same—to rescue your common
country.
Let me advise you who know nothing of your divisions—who
belong neither to one clique or the other. I say with the deepest
sincerity that I think all parties ought to have concentrated upon the
Fillmore ticket. Mr. Fillmore is a northern man. Your southern
brethren were willing to support him. He had guided the ship of state
safely through the storm, and it was but reasonable to suppose that
in time of difficulty he would again be found the same good pilot. But
if we cannot get all others to unite on Mr. Fillmore, each of us must
inquire, “What is my duty? If the mountain will not come to
Mahomet, shall not Mahomet go to the mountain; and if he will not
go to the mountain, in heaven’s name, shall he not go half way?”
I am fighting for the victory which we may obtain in this contest.
And what an issue is now pending! We read in the Iliad how, for ten
long years, a great people of antiquity were engaged in the siege of
Troy. What was the stake for which they contended? It was nothing
more than a beautiful woman, who had been ravished by a sprig of
the royal line of Troy. What is the stake for which we contend? It is
constitutional liberty—the right of the American people to govern
their own country—the right of every citizen to worship God
according to the dictates of his conscience. The great issue is,
whether the American flag shall still wave in glory when we shall
have gone to our graves, or whether it shall be trailed in dishonor—
whether the “blackness of darkness” which would follow the
dissolution of this Union, shall cover the land.
I do not tell you how to combine: but I urge you to resort to that
mode (if there is such a mode possible), by which you can get
together—by which your votes can be made effectual at the polls—by
which Millard Fillmore can go before the House of Representatives
with the strong moral power which a large electoral vote will give
him.
That is the way in which we must view the question as practical
men. Yet so different are the conditions of our nature, so different
the sentiments which actuate us, that I will not be guilty of such
presumption, as to tell any man what particular course he should
take. You know my opinions; if they are worth anything, receive
them into your hearts, simply as the sentiments of a brother
American; if they are worth nothing, let them pass as the idle wind.
In conclusion I will only say that whether we be defeated or
whether we be victorious, the only reward I ask for in the labor in
which I am engaged is, that you may recollect me as one who had at
heart only the welfare of his country, and who endeavored to
promote it by appealing to the associations of the past, and all the
hopes of the future.
 Religious Test.

Debate in the Convention on that article in the Constitution in

regard to it.
Mr. Pinkney moved that no religious test shall ever be required as
a qualification to any office or public trust under the United States.
Mr. Sherman thought it unnecessary, the prevailing liberality
being a sufficient security against all such tests.
Rev. Mr. Backus of Mass. I beg leave to offer a few thoughts upon
the Constitution proposed to us; and I shall begin with the exclusion
of any religious test. Many appear to be much concerned about it;
but nothing is more evident, both in reason and the Holy Scriptures,
than that religion is ever a matter between God and individuals; and
that, therefore, no man or set of men can impose any religious test
without invading the essential prerogatives of our Lord Jesus Christ.
Ministers first assumed this power under the Christian name, and
then Constantine approved of the practice when he adopted the
profession of Christianity as an engine of state policy. And let the
history of all nations be searched, from that day to this, and it will
appear that the imposing of religious tests hath been the greatest
engine of tyranny in the world.
Oliver Wolcott of Conn. For myself I should be content either
with or without that clause in the Constitution which excludes test
laws. Knowledge and liberty are so prevalent in this country, that I
do not believe that the United States would ever be disposed to
establish one religious sect and lay all others under legal disabilities.
But as we know not what may take place hereafter, and any such test
would be destructive of the rights of free citizens, I cannot think it
superfluous to have added a clause which secures us from the
possibility of such oppression.
 Mr. Madison of Va. I confess to you, sir, that were uniformity of
religion to be introduced by this system, it would, in my opinion, be
ineligible; but I have no reason to conclude that uniformity of
government will produce that of religion. This subject is, for the
honor of America, left perfectly free and unshackled. The
government has no jurisdiction over it—the least reflection will
convince us there is no danger on this ground. Happily for the states,
they enjoy the utmost freedom of religion. This freedom arises from
that multiplicity of sects which pervades America, and which is the
best and only security for religious liberty in any society. For, where
there is such a variety of sects, there cannot be a majority of any one
sect to oppress and persecute the rest.
Mr. Iredell of N. C. used this language: “Every person in the least
conversant with the history of mankind, knows what dreadful
mischiefs have been committed by religious persecution. Under the
color of religious tests, the utmost cruelties have been exercised.
Those in power have generally considered all wisdom centred in
themselves, that they alone had the right to dictate to the rest of
mankind, and that all opposition to their tenets was profane and
impious. The consequence of this intolerant spirit has been that each
church has in turn set itself up against every other, and persecutions
and wars of the most implacable and bloody nature have taken place
in every part of the world. America has set an example to mankind to
think more rationally—that a man may be of religious sentiments
differing from our own, without being a bad member of society. The
principles of toleration, to the honor of this age, are doing away those
errors and prejudices which have so long prevailed even in the most
intolerant countries. In Roman Catholic lands, principles of
moderation are adopted, which would have been spurned a century
or two ago. It will be fatal, indeed, to find, at the time when examples
of toleration are set even by arbitrary governments, that this country,
so impressed with the highest sense of liberty, should adopt
principles on this subject that were narrow, despotic, and illiberal.”