CANADA CLERGY RESERVES. (Hansard, 28 May 1840)

§ Lord J. Russell
said, that in bringing before the House the question of the Clergy Reserves of Canada, he did not think it necessary to explain the various evils which had been produced in that place, owing to the unsettled state of the colony, or to the neglect which had been exhibited with regard to the lands reserved under the act of 1791, or the disputes which had arisen owing to the state of affairs in the colony. These circumstances were familiar to the House, owing to the discussions which had arisen in the course of the last Session of Parliament, and the correspondence which had been laid before the House. The only explanation, which he thought it would be necessary for him to give, was with regard to the present state of the question, in relation to the bill which he now proposed to introduce. The Governor-general of Canada, following the general instruction which he had received, thought it most desirable that a bill should be passed by the Legislature of Upper Canada, in reference to this subject, before the Legislature of the United Kingdom should consider it. It was found that while the strongest objections were entertained by one party to anything which did not give these funds to the purposes of education generally, on 702 the other side there was a strong party who insisted that the revenues should be appropriated exclusively to the clergy. The Governor-general, however, proposed a scheme by which a division of the funds was made among the various denominations of Christians, in order to reconcile their contending interests, and to meet the views of the two parties in the Legislative Council. This measure was at once acceded to by that body, and it was one great reason for consenting to the proposition which he was about to mute, that it had already obtained the assent of the Canadian legislative body. When the question came to be discussed whether the Royal Assent should be given to the Canadian Bill, doubts were stated by the Governor-general himself, when he wrote home, with regard to a portion of its provisions; and in reference to that part which bore some allusions to the statute of the 7th and 8th Geo. 4th, the House of Lords determined to put a question to the learned judges, whether the Colonial Legislature had not exceeded its authority? To that question an answer was returned that they had exceeded their authority, and it therefore became necessary to introduce a bill into Parliament, for the purpose of disposing of those questions, which it was desirable should be finally determined by the Parliament of the United Kingdom. It was most desirable to follow, as far as possible, the provisions of the act passed by the Colonial Legislature; but he thought, that in some respects some alterations must be made, although it was quite possible that the Assembly of Canada would not have agreed to the measure, if it had not contained those provisions which he proposed should be expunged. The general principle of the bill was, that the whole of the clergy reserves should be sold—that the proceeds should be vested in the Colonial Secretary—that one-fourth should be paid to the Church of England, one-fourth to the Church of Scotland, to be divided according to the census of the members of each Church, and the remainder to be given to the different denominations of Christians recognised by the constitution and by law. The learned judges were asked other questions, as to the original matter, and their answer went to declare, in the first place, that the term "Protestant clergy" did not apply solely to the members of the Church of England. These were very precise in the following terms:— In answer to the first question, we are all of opinion that the words 'a Protestant clergy' 703 in the statute 31st Geo. 3rd, c. 31, are large enough to include, and that they do include, other clergy than those of the Church of England, and Protestant bishops, priests, and deacons, who have received episcopal ordination. For those words, which are first to be met with in the statute 14th Geo. 3rd, c. 83 (recited in the act now under consideration), appear to us, both in their natural force and meaning, and still more from the context of the clauses in which they are found, to be there used to designate and intend a clergy opposed in doctrine and discipline to the clergy of the Church of Rome, and rather to aim at the encouragement of the Protestant religion in opposition to the Romish Church, than to point exclusively to the clergy of the Church of England. And although the Legislature, in passing the statute 31st Geo. 3rd, appears to have had in its view the establishment of the Church of England, primarily, and in a more especial manner, as is evident from this, that the only detailed provisions for carrying the object of the act into effect are confined to the erection and endowment of parsonages and rectories according to the establishment of the Church of England, the presenting thereto incumbents or ministers of the Church of England, duly ordained according to the rites of the said Church, and the subjecting of them to all spiritual and ecclesiastical jurisdiction and authority, according to the laws and canons of the Church of England, which are lawfully made and received in England (sections 38, 39, 40, of the above act); yet does it appear to us that the Legislature, by employing the more general and comprehensive term, 'Protestant clergy,' in the same statute in which they also use the expression 'incumbents, or ministers of the Church of England,' must be intended to have included within the former and larger expression, other clergy besides those who are comprised within the limits of the latter. And when your Lordships desire the judges to state if any other clergy are included, what other? We answer, that it appears to us that the clergy of the established Church of Scotland do constitue one instance of such other Protestant clergy. And although in answering your Lordships' question we specify no other Church than the Protestant Church of Scotland, we do not thereby intend that besides that Church, the ministers of other churches may not be included under the term Protestant clergy. ^* ^* ^* At the same time as we do not find on the statute book the acknowledgment by the Legislature of any other clergy answering that description, and as we are not furnished by your Lordships with any information as to the doctrine or discipline of any other denomination of Protestants to which the statute of the 31st Geo. 3rd can by possibility apply, we are unable to specify any other to your Lordships as falling within the statute. He thought that that was as much as 704 they possibly could say, it not being a matter within their jurisdiction to point out any ministers of religious denominations, who were not specified in the questions which were put, and which they had not before them at the time. So, it was clear, that their opinion was, that according to the spirit of the act, it might be applied, first, to the clergy of the Church of England, next to the clergy of the Church of Scotland, and next to those of other religious denominations, which they left to other authorities to define. Therefore, so far as the bill went, which had been passed in Upper Canada, providing for the clergy of the Church of England and of Scotland, and the other religious denominations of the Protestant faith, it might be said to conform to the spirit of the act of 1791, but it went beyond these denominations, and applied to the Roman Catholics as well, who, according to the opinion of the judges, were expressly intended to be excluded. The grounds which had existed for including the Roman Catholics in this bill, were those generally of reason and policy, and they were suggested by the fact, that the Roman Catholic clergy did not partake of the settled provision in Upper Canada, by virtue of the ancient laws of the French government. That was the first reason which had prevented their exclusion from the bill, and it was one which the Governor informed him generally prevailed in Canada, and he thought that, considering that the Roman Catholic clergy had always exhibited the greatest attachment to the Crown of England, and had shewn themselves to be exceedingly loyal, it would be an invidious and unjust distinction to draw, to exclude them from any new law which might be made. These reasons appeared to have prevailed in the province, and he did not know why they ought not to receive the consideration of Parliament. In making the proposition which he had laid before the House, he must say, that there were some very inconvenient clauses in the act passed in Upper Canada. That to which he had alluded first was a clause by which there was to be a commission appointed, by which a new census was to be taken from time to time; first, of the members of the Churches of England and Scotland, and next every four years of other religious denominations. It appeared to him, that if they wished to settle this question, it had better be settled once for all by some enactment which would include the whole subject matter; 705 but he thought, that the taking of this census would be likely to produce great excitement, and to create great rivalry also between the various denominations as to their respective numbers of followers, as well as its being rendered extremely inconvenient to ascertain to which denomination certain persons belonged. There were some other parts of the law which were rather objectionable on account of the doubt which must arise on their interpretation. He meant those which referred to the distribution of the amount produced from the sale of the reserved lands. It appeared to him to be much better, that with regard to the Church of England, there should be somebody into whose hands the money should be paid. In the Church of Scotland, there was a well known body by which it might be received, and with regard to the other denominations of Protestants, he proposed, that the Governor and the Executive Council should make the distribution. First, then, he proposed to confer the same power which Lord Ripon had before suggested, upon the Governor, which was, to sell and convey in fee simple any or all the lands called the clergy reserves in Upper Canada. Next, that the whole of these lands, or any funds derived from them should be chargeable with the payments which were now made, and which rested on the faith of the Crown, to the ministers of different religious denominations. By far the largest amount of these sums, amounting to 7,000l. was paid to the Church of England, although others were paid to those of different religious denominations. As far as the faith of the Crown went, the payments would extend only so long as the lives of the parties lasted, and when they ceased, he proposed that one-fourth should be paid to the Church of England, and the amount having been received by the receiver-general under a warrant of the Governor-general, it should be paid by him to the Society for the Propagation of the Gospel in Foreign Parts—a body having at its head the Archbishop of Canterbury, and being for this purpose perfectly competent and fit for the duties proposed to be cast upon it. The next fourth he proposed should be given to the Presbyterian synod representing the Church of Scotland and the other bodies of Presbyterians. With regard to the remainder, he proposed that it should be distributed to any denominations of Christians who had hitherto received any support or payment out of the revenues of the colony, or out of the casual or terri- 706 torial revenues of the Crown, and generally for the purposes of religious worship, and the maintenance of buildings for that purpose. In the provisions of the bill, it would be almost impossible to define all the various religious denominations in existence. In the act passed by the Legislative Council, they were described as those religious denominations recognised by the constitution and the laws of the colony. As to the constitution, it appeared that the Churches of England and Scotland were only recognised, while as to the laws, it seemed that none were mentioned, except to enable persons of certain creeds to make an affirmation instead of an oath, or to exempt others from serving in the militia; because they had some scruples which prevented their taking up arms. He thought that these references, however, hardly furnished sufficient ground for payments being ordered to be made to any of the particular sects, and seeing the impossibility of obtaining any exact definition of them, and the Methodists and some others never having been defined or recognised in any act, he conceived, that it would be better to have this portion of the fund distributed by the Governor and the Executive Council. Of course, if these propositions should be adopted, the whole matter might be considered as finally settled. In proposing this arrangement, he wished it to be understood, that it was out of the question that they should invest either the Church of England or Scotland with any superiority over other sects. That would be totally contrary to the general feelings of the province, and the only question to be considered was as to the mode of distributing the funds. He believed, that the best way of doing that was to adopt the measure he suggested, which would avoid raising any new cause of discontent. The noble Lord concluded by moving for leave to bring in a bill to provide for the sale of the clergy reserves in the province of Upper Canada, and for the distribution of the proceeds thereof.

§ Mr. Goulburn
said, that it would be of course useless to attempt to enter into a general discussion of the measure of the noble Lord now. He wished, however, to be informed whether the noble Lord intended the Roman Catholic clergy to be included in its provisions?

§ Lord John Russell
answered in the affirmative. One-fourth of the amount was to go to the Church of England, one-fourth to the Church of Scotland, and the remainder to those denominations which had 707 received any allowance before, which would include the Roman Catholic clergy.

§ Mr. Goulburn
said, that the Roman Catholics had been held not to be included in the terms of the act of 1791. He begged to ask how it was, that the noble Lord proposed that they should form no exception to the provisions of his bill?

§ Lord John Russell
stated, that the Crown would not have been advised to give the royal assent to the act, as the judges had given their opinion that the Legislature of Upper Canada had exceeded their authority. They did not now propose to explain the act of 1791; but were proposing new enactments as to the disposal of the clergy reserves. As to the question which the right hon. Gentleman asked, he begged to say that a proposition had been made as to regulating the sums to be appropriated to Roman Catholics, with others, that a census should be taken of the different numbers of religious denominations. To that he thought there was very great objection. It could not be supposed, that the Wesleyan Methodists were more numerous than the Roman Catholics; but all that was now proposed was, that the Roman Catholics should not be excluded.

§ Mr. Goulburn
did not object to the Roman Catholic pastors being paid; but if a sum were assigned by an act of Parliament, he had a very great objection that any portion of that fund should be applied to a purpose for which it never was intended, and from the enjoyment of which, by the construction of the statute by the judges, the Roman Catholics were expressly excluded. He did not enter upon the discussion, but this was a matter of very great importance.

§ Mr. Plumptre
hoped, that payment to the Roman Catholic clergy would be made out of some other fund than the clergy reserves.

§ Lord John Russell
remarked, that there could be no doubt, that this fund was not intended for the Roman Catholic clergy, but this was not like a fund which had been regularly appropriated, for a great portion of this land was wild, and not useful for any purpose whatever. It was acting differently from the intention of the act of 1791. That act had not been successful, although, no doubt, it had been passed with a good and pious intention. But it was as competent for the House at this day to make the alteration proposed, as it would have been for the Legislature then to alter their own act.

§ Mr. Goulburn
observed, that if they ad- 708 mitted this principle, it would apply to other lands in the colonies, that were not cultivated.

§ Mr. Labouchere
remarked, that the line of argument used was calculated to excite an unfounded prejudice on this subject. Although the Act of Parliament did confine the proceeds of the clergy reserves to a particular purpose, yet in that act the e was introduced the almost unexampled provision, that the Legislature of Upper Canada should have power to alter this provision.

§ Mr. Pakington
thought it so desirable, that this question should beset at rest, that he had no intention of opposing the bill at that stage of the proceeding. He did not, however, wish it to be understood, that he consented to the arrangement proposed by the noble Lord. He thought there was abundant means in the possession of the Roman Catholics of Lower Canada, to provide for the Catholics both in the upper and lower province.