Lords Sitting of 23 July 1838

MINUTES.
Bills. Read a first time:—Loan Societies (Ireland); Public Records; Land Tax Redemption; Fines and Recognizances (Ireland); Court of Chancery (Ireland); and Fisheries (Ireland).—Read a third time:—County Treasurers (Ireland); and South Australian Act Amendment.
Petitions presented. By the Marquess of WESTMINSTER, from Beer Sellers of the Metropolis, against the Sale of Beer Act Amendment Bill.—By the Duke of NEWCASTLE, from a place in Hertfordshire, against a Grant to Maynooth.—By the Bishop of HEREFORD, from Clergy of Hereford, against Hindoo Idolatry; and from Thomas Dacre, Clerk, against parts of the Tithe Commutation Act.—By the Earl of RIPON, from a parish in the county of Northumberland, from the Wesleyan Methodists of King's Mead, Bristol, of Old Market-street, Bristol, of Hotwells-road, Bristol, of Portland-place, Bristol, of Bedminster, and of various other places, against the encouragement of Idolatry in India; and from a parish in Surrey, in support of the Established Church in Canada.—By Viscount MELBOURNE, several, for the extinction of Negro Slavery; and two against any further Grant for Church Endowments in Scotland.

CANADA—ESTABLISHED CHURCH.
The Earl of Riponsaid, he was not present on Friday evening when the right rev. Prelate opposite had made some reference to him, on the occasion of a petition being presented respecting the state of the Established Church in Upper Canada. Now, as he might not be correctly informed with respect to what the right rev. Prelate had stated, he wished to know whether the right rev. Prelate had cast any imputation upon him, in consequence of his conduct in reference to an act passed by the Legislature of Lower Canada in 1833? He understood, that he had been accused of having been guilty of a breach of an act of Parliament, because the act of the provincial legislature had not been submitted to both Houses of Parliament before it was carried into effect. He, therefore, wished to know, what had been really stated by the right rev. Prelate.
The Bishop of Exeteranswered: His statement was, that a bill had been passed by the Legislature of Lower Canada for the benefit of the Roman Catholic bishop of that province, which bill was required by the act of Parliament, to be submitted to that and the other House of Parliament, before it received the Royal assent. Now, in this case, that essential form had been dispensed with; and he felt, that the noble Earl, in dispensing with it, had neglected his duty. In taking such a course, the noble Earl was, he conceived, guilty of an important omission, though he was very far from supposing intentionally so. There was, unquestionably, a departure from the direction of the law in a very important instance. He also said, on Friday night, that, in the absence of the noble Earl, he would not then more particularly bring that neglect under the consideration of the House, but that he should do so at a future period.
The Earl of Riponsaid, the right rev. Prelate proceeded on an assumption of both the fact and the law. The right rev. Prelate assumed, that the bill should be laid before both Houses of Parliament, prior to its receiving the Royal assent, which remained to be proved.
The Bishop of Exetersaid, he had stated the matter, as he understood it; and that statement was not in the slightest degree affected by the doubt which the noble Earl had thrown out. The act to which he had alluded as having been passed by the Canadian Legislature, was

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one which gave in perpetuity a grant of 1,000 l. a-year to the Roman Catholic bishop, in lieu of what was called his episcopal palace. He would advert to the subject again, before the termination of the present Session.
The Earl of Riponwas anxious that the matter should be accurately understood, and he hoped it would not be allowed to hang over till next Session. At the same time, he could easily endure the weight of the charge.
Conversation ended.
The Bishop of Exeter, seeing the noble Secretary for the Colonial Department in his place, would now ask the question of which he gave notice on Friday, namely,—"whether, in the official letter addressed to the Earl of Durham, or in the instructions directed to him, there were any variations from, or modifications of, the standing instructions given to his predecessors, since the acquisition of Canada, so far as respects the conduct which he is to pursue towards the Established Church in that colony, or towards those who are not in communion with it, especially the Roman Catholics?" Now, he found in the letter of the noble Lord, the following passage:—
"The old standing instructions having been framed before the passing of the law for the relief of the Roman Catholics from the disabilities under which they formerly laboured in this country, are in many particulars conceived in a spirit opposed to the principle of religious toleration as now understood and practised. It is almost superfluous to observe, that to this extent they must be regarded as obsolete."
Did that passage, he asked, constitute part of the instructions given to the Earl of Durham?
Lord Glenelg: It did.
The Bishop of Exetersaid, that as the passage which he had read was admitted to be a part of the official instructions sent out to the Earl of Durham in Canada, he could not but venture to express some surprise at the answer which the noble Baron had given him on Friday night, when he asked whether, in the new instructions, there was any departure from the instructions that had been uniformly acted on since the accession of the colony. The noble Baron had said, no material alterations had been made. Now, he was quite sure, that the noble Baron was convinced at the time, that any alteration which had
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been made, was in accordance with the old instructions, and was not material. But when the matter was considered, the contrary would be found to be the fact. He would ask the noble Baron, in what particular the old standing instructions were "opposed to the principle of religious toleration as now understood and practised?" In the first place, he would call the noble Baron's attention to the instructions given to Lieutenant-general Sir George Prevost, as Governor-in-chief of Lower Canada, in 1807, and which were laid before Parliament in 1813. The 42d paragraph was most important. It set forth—
"Whereas the establishment of proper regulations on matters of ecclesiastical concern is an object of very great importance, it will be your indispensable duty to take care, that no arrangements in regard thereto be made, but such as may give full satisfaction to our new subjects in every point in which they have a right to indulgence on that head, always remembering, that it is a toleration of the free exercise of the religion of the Church of Rome only to which they are entitled, but not to the powers and privileges of it as an established Church, that being a preference which belongs only to the Protestant Church of England."
He believed, that he was correct when he stated further, that to give the established Church its just supremacy, any encroachment upon its jurisdiction was liable to be visited with severe penalties. Was that, he wished to know, one of the particulars from which the noble Baron authorized the noble Earl to depart? It was also provided,
"That no vicarial power shall be exercised by any person professing the religion of the Church of Rome, except in so far as it is absolutely necessary to the free exercise of the Romish religion, and not to be legal, except under the seal of the said province, and under such limitations and restrictions as are provided under the Act of Parliament of the 14th year of our reign; and you are authorized to remove all priests from their benefices for criminal offences, or who are accused of having attempted to disturb the peace and tranquillity of the Government."
These, so far as he recollected, were the only points of instruction given, at the time to which he referred, to which the paragraph of the new instructions which he had read could allude; and he demanded, whether they formed the particulars referred to by the noble Baron? He should now read an extract from the treaty of peace concluded in 1763, by

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which Canada was ceded to the British Crown, and in accordance with which the instructions he had just noticed were drawn up. The treaty set forth,
"His Most Christian Majesty cedes and guarantees to his said Britannic Majesty in entire sovereignty the province of Canada, &c. On his part, his Britannic Majesty agrees to grant to the inhabitants of Canada the liberty of the Catholic religion; accordingly, he will give the most precise and most effective orders that his new Roman Catholic subjects may profess the service of their religion, according to the rites of the Roman Church, so far as the laws of Great Britain permit."
In the spirit of the treaty was conceived the letter of the Earl of Egremont addressed to governor Murray, in August, 1763, from which he would read an extract:—
"Though the King has, in the 4th article of the definitive treaty, agreed to grant the 'liberty of the Catholic religion to the inhabitants of Canada' and though his Majesty is far from entertaining the most distant thoughts of restraining 'his new Roman Catholic subjects from professing the worship of their religion according to the rites of the Romish Church,' yet the condition expressed in the same article must always be remembered—viz., 'as far as the laws of Great Britain permit,' which laws prohibit absolutely all Popish hierarchy in any of the dominions belonging to the Crown of Great Britain, and can only admit of a toleration of the exercise of that religion. This matter was clearly understood in the negotiation of the definitive treaty. The French Ministers proposed to insert the words comme ci devant, in order that the Romish religion should continue to be exercised in the same manner as under their Government; and they did not give up the point till they were plainly told, that it would be deceiving them to admit those words, for the King had not the power to tolerate that religion, in any other manner than 'as far as the laws of Great Britain permit.' These laws must be your guide in any dispute that may arise on this subject, but at the same time, that I point out to you the necessity of adhering to them, and of attending with the utmost vigilance to the behaviour of the priests, the King relies on your acting with all proper caution and prudence in regard to a matter of so delicate a nature as this of religion, and that you will, as far as you can consistently with your duty in the execution of the laws and with the safety of the country, avoid everything that can give the least unnecessary alarm or distrust to his Majesty's new subjects."
In all these documents the course that should be pursued towards the Roman Catholics in Canada was clearly defined.
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That the old standing instructions were framed long before the law was passed for the relief of the Roman Catholics was very true, but whether they should be altogether departed from was another thing. He wished to know from the noble Baron whether the articles which he had read, and which were in accordance with the principles of the treaty, constituted those "particulars" that, according to the late instructions given to Lord Durham, were considered to be opposed to the principle of religious toleration, as now understood by the Roman Catholics?
Lord Glenelgsaid, that the course taken by the right rev. Prelate was extremely inconvenient, but he would endeavour to answer the right rev. Prelate's observations. He thought, if the instructions referred to by the right rev. Prelate were fairly considered they would not appear to be censurable. In many instances it had been found necessary long since to depart from the old instructions. Indeed they could not be carried into effect. Thus, under those instructions the governor was directed to administer the oaths and declaration to the members of the Legislative Council, as provided for the different colonies by the 1st of George 2nd. Now, those oaths and that declaration would prevent any Roman Catholic from taking his seat. The consequence was, that after the Roman Catholic Relief Bill had passed, a commission was sent out, directing the governor to administer the oath according to that bill, and if the then governor, Lord Aylmer, had adhered to the old regulations, he would have broken in upon the provisions of that measure. No person who took the trouble to make himself acquainted with the purport of the instructions issued to Lord Dalhousie, could fail to see, that those instructions were of a nature which could not be acted on under present circumstances—they were wholly inapplicable to the present period, especially that portion of them was inapplicable which related to the House of Assembly. In his own instructions to Lord Durham he had not pointed out at any length in what manner or to what extent the former instructions had ceased to be applicable to the existing condition of Canada, he left that to the discretion of his noble Friend; this, however, he felt called upon to say to the House, that Parliament was bound in honesty to afford

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full and due protection to the Roman Catholic religion in Canada. Whatever was to be done respecting the Canadian Roman Catholics he contended should be done openly, and he was sure their Lordships would not sanction instructions addressed to her Majesty's representative in Canada, suggesting the adoption of rules, or rather the revival of obsolete regulations, which were intended to destroy the Church of Rome in that colony. He maintained that the old instructions could not be carried into effect. One of them was, that no person could hold a benefice in Canada without the leave of the Crown, unless he happened to be born in that colony. Again, any Roman Catholic priest might be deprived of his benefice on due proof of any seditious attempt to disturb the public place. He would ask what did the words "due proof" mean? They could mean nothing else than that which appeared to the mind of the governor "due proof." There was no noble Lord, he believed, would say that it meant anything but that which the governor of Canada for the time being should, without conviction or even trial, consider to be "due proof." If the old instructions were followed out to the letter, the penalties attaching to a Roman Catholic priest for entering into the holy state of matrimony could not be enforced. Surely this mode of administering the government of Canada would not be advocated by any but those who held that the end sanctified the means. Another of the old instructions declared that all burial-grounds should be open to all descriptions of persons. By the Roman Catholics indiscriminate burial was deemed gross desecration; there could, therefore, be no greater act of tyranny than the enforcement of such an instruction. The next of these instructions which presented itself to his mind was that which would deprive a Roman Catholic priest of his benefice for merely converting a Protestant. Were those regulations such as could in the present day be carried out, or were they not utterly opposed to religious toleration, as now understood and practised? Was any man bold enough, any persecutor insolent enough, to say that those regulations could be carried into effect?
The Bishop of Exetersaid, that the noble Lord the Secretary for the Colonies appeared to him to speak under a misapprehension of the facts. The Romish
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Church was not the established Church in Canada, and in the original instructions, although it was declared that the Roman Catholics were to be tolerated, yet it was as distinctly affirmed that the Roman Catholic Church was not to have any power, pre-eminence, or authority. The Government of this country never had recognised any, except Prelates of the Established Church, as bishops of dioceses in Canada. Till within the last four or five years—a period with which he did not profess to be particularly well acquainted—the Roman Catholic bishops in Canada resided there, not of right, but by permission. In the instructions issued by Lord Egremont in 1763, there was a passage which declared that the exercise of the Roman Catholic religion in Canada was limited by the laws of Great Britain: surely, those laws prohibited the existence of a Popish hierarchy in the colonies. Now, what he complained of was, that the instructions to Lord Durham were conceived in a tone not merely of toleration towards the Roman Catholics, but in a spirit far exceeding anything that could be called toleration. He would move for copies of the instructions issued to the Governor-general of her Majesty's provinces in North America, together with copies of such portion of the commission under the great seal relating to the Canadas as had not already been communicated to Parliament, as also the letter from Lord Glenelg to the Earl of Durham, dated the 21st of April 1838.
Lord Glenelgwas understood to say, that he felt no objection to communicate the papers moved for by the right rev. Prelate. He was sure their Lordships would agree with him in thinking that it was absurd to suppose that the old instructions could be carried into effect. As to the recognition of Roman Catholic Prelates in Canada, he could assure the right rev. Prelate that he was mistaken, for long before the last four years, the recognition had taken place, and that too by acts of the Legislature.
The Bishop of Exeterbegged it to be understood, that he did not assent to the statement made by the noble Lord respecting acts of Parliament.
Lord Glenelg, it was done by provincial statutes which had received the sanction of the Crown.
The Bishop of Exetersaid, that those acts ought to have been on the tables of both Houses for thirty days before they

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received the Royal assent, and he defied the noble Lord to show that that rule had been complied with.
Papers ordered.

PLURALITIES.
The Benefices and Pluralities Bill was read a third time,
On the question that the Bill do pass,
Lord Portmansaid, he could not consent to the passing of this bill, without shortly stating his opinions upon it. It was in his judgment a bill which, at no very distant period, would force upon the right rev. bench a complete and entire consideration of the whole subject of Church temporalities, and believing this would be the case, and that thus the wishes of the great mass of the people would be accomplished, he did not intend to oppose its now being passed into a law. The bill was, however, not so fair and just as to be able to stand; it imposed, he would not say great penalties, but great changes in the whole property of patrons; it gave enormous powers to the bishops, while it afforded but small remedies for the grievances under which the incumbents of this country laboured. It was true it went to enforce residence—a provision which he hailed with satisfaction, but which he feared was not founded upon a principle that could be permanent. He complained of a want of reciprocity as between the clergy and the laity, and he could not but feel there should have been an equal check upon the bishops. Again, there was a want of reciprocity in the arrangements contained in the bill with reference to peculiars, and all peculiars were abolished, except they were within the jurisdiction of a bishop or an archbishop. There was one part of the bill which he grieved to see, and that was the manner in which it recognized an immense mass of existing abuses. He was aware it was exceedingly difficult, and perhaps not strictly right, to press severely upon individuals holding existing privileges with rights recognized by law, but he believed there were many matters recognized by this bill which were of doubtful law before. He alluded particularly to the many cases of exemption from residence which were embodied in this bill, and under it would be sanctioned. Again, the sixth clause imposed upon the most rev. Prelate (the Archbishop of Canterbury) a most painful duty—a duty which he (Lord Portman), however, did not doubt the most rev. Prelate would exercise
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with that tenderness which was so peculiarly his characteristic. The duty he alluded to was this—that when a question arose before a bishop as to the fitness and expediency of a living being held in plurality, the most rev. Prelate would have to be satisfied, not only of the fitness of the clergyman appointed, but of the expediency of his holding two preferments. Now, it would be a great grievance upon a clergyman that his patron should not alone be permitted to judge of his fitness, but that he must undergo a further investigation by the most rev. Prelate. There were many other points to which he objected, but to which it was needless to refer, as he did not intend to oppose the passing of the bill. He, however, felt, that legislation in this matter had been begun at the wrong end, and that the result of this bill would be to force a full reconsideration of the whole subject.
Bill passed.