The Bishop of Exeter
, in rising to submit to the House the motion of which he had given notice, wished, in the first place, to say a word or two in answer to an objection which had been made on a former evening to the very nature of his motion. It had been said that it did not belong to their Lordships to consider the legality of the proceedings of the Colonial Legislature, as that question should be left to the Government, who, on their own responsibility, should satisfy themselves of the legality of the bill before they advised the Crown to give its assent. It was impossible for him to agree to that proposition. Let their Lordships consider the position in which they were placed; they were intrusted by the law of the land with the guardianship of religion in Canada, and to enable them to discharge their duties the Legislature had, by the statute of the 31st George III., provided that no measure affecting the religion of the colony should pass into a law until it had lain on the tables of the Houses of Parliament for thirty days, in order to enable either House, by an address to the Crown, to object to the proposed 627 plan. It was intended by this act that every measure which was passed of this description should carry with it the authority of the English as well as of the Colonial Legislature, and although the English Parliament could only give a negative voice upon the subject, yet an assent was in effect given by abstaining from addressing the Crown. He, therefore, considered that the House was in the same situation as if a bill had been brought up from the other House of Parliament, and had a right to inform itself by the constitutional and satisfactory means of requesting the advice of the judges upon the legal question which the measure involved. It was, in one respect, with grief and pain that he approached the discussion of this subject, for it reminded him of the absence of a noble and learned Lord whose presence and assistance did honour to the House and gave authority to its decisions, more especially upon this question, with which the noble Lord might be said to be individually connected, in consequence of the opinion given by him in 1819, as one of the law officers of the Crown. On looking into the bill upon the table, he (the Bishop of Exeter) found that it dealt with the clergy reserves as if they were open to the entire disposition of the Colonial Legislature; although it was clear that by the Constitutional Act they were to be appropriated to the maintenance and support of the Protestant clergy. Who fell within that description was the question upon which it became their Lordships to require the best information which could be obtained, and to take the best means in their power of coming to a satisfactory decision. He felt it to be his duty to show that there was a primâ facie case against the legality of the measure, and to prove that the great body of men who, for the spiritual and temporal good of our colonies, were established there—he meant the clergy of the Church of England—were the only body of men who were comprehended in the term "Protestant clergy." If we looked back to the law of England, and inquired what the meaning of the word "clergy" was, we should find it told us most distinctly by some most important statutes, and he wished that the question, instead of remaining to be discussed now, had been anticipated by her Majesty's Government. It would be in the recollection of their Lordships, that in 1837 considerable doubts existed respecting the legality of the institution of the rectories in Upper Canada. On that occasion the Government applied 628 to the law officers of the Crown as to that legality, and in the case that was presented to those learned persons the opinion given was against the legality. The Government was then perfectly satisfied that the Church of Canada had no legal ground for the institution of those rectories, and in reference to that subject, Lord Glenelg in his despatch to Sir F. Head of the 6th of July, 1837, said:—I have assumed that the bishop and the archdeacon would not think themselves at liberty to surrender the rights apparently vested in the Church of England in deference to the opinion of her Majesty's legal advisers, and without the previous judgment of the proper legal tribunals. I must go further, and avow my opinion that such a surrender is neither to be asked nor desired. Her Majesty's Government repose, indeed, in the law officers the confidence to which their high professional reputation gives them so just a title; but I am persuaded that it would be more satisfactory to those learned persons themselves, as it would be more agreeable to me and my colleagues, that claims of such peculiar delicacy and importance should be decided, not on the responsibility only of the judgment of the Queen's Advocate, and the Attorney and Solicitor-General, but on that of the proper tribunals, after a full investigation of all the facts of the case, and of all the principles of law bearing on them.Such was the very fair suggestion that was made by her Majesty's Government to the Church of Canada on that occasion. At that time no doubt was entertained that the rectories were illegally instituted. But it afterwards turned out that sufficient authority was given for their institution. Documents were found in the colonies which showed that the rectories were legally instituted; and what was then the proceedings of the Government? Sir G. Arthur immediately, and and very properly so, informed the moderator of the Synod in Upper Canada of the discovery that had been made of the different opinion that had been given by the law officers of the Crown, for in their opinion on the second case that was presented to them they stated, that the institution of those rectories was perfectly legal; and how did Sir G. Arthur proceed? He suggested to the moderator a proceeding at law, and an appeal to the judicial committee. These were his words—In like manner, if it be still your desire to have a judicial determination upon the claims the Church of Scotland can legally maintain to a participation in the lands reserved under the 629 31st Geo. 3rd, c. 31, or to the funds arising from them, that question also can, upon your petition, be submitted to the Secretary of State, with the expression of your wish, that it should be referred to the judicial committee of the Privy Council.That suggestion he approved of. And what was the reply of the moderator? It would be difficult for their Lordships to lay their hands on any paper so full of insult as that paper. The moderator refused to take the course that was proposed, and proceeded to complain of the Constitutional Act itself, saying it was a violation of the Articles of Union, and this too, not in a calm and meek spirit, but in a manner the most insulting to the Government. That was the way in which the suggestion of the Government to the presbytery of Upper Canada was received. It happened about three months afterwards that the bishop and clergy of Canada, whether they were aware of the suggestion, he knew not, thought fit to address the same request to the Government which the Government itself had urged to the presbytery of Upper Canada. Nay, they did more; they earnestly implored the Government, for the sake of peace, to lay the question before the judicial committee, or take the opinion of the judges upon it. And how was that request received? That request of the clergy of that Church to which their Lordships belonged, and for which they said they felt the most warm regard, was answered by Lord Glenelg in the following words:—In reply, I have to inform you, that as her Majesty's Government see no reason to doubt the correctness of the opinion delivered on this subject by the law officers in 1819, they do not consider it necessary to originate any proceedings on the subject before the judges of England or the Privy Council.Such was the different measure of justice meted out to the Church of England and those who were opposed to it. Now, he deplored that on many accounts. It would have been far more to the honour of the Government, and a proof of more impartial feeling, at least towards that body—and he submitted, that the Church of England to which that Government belonged, was entitled to something more than an impartial feeling, but even that impartiality was not dealt out to them—if they had been fairly dealt with on that occasion, for then would the question have been brought before the judicial committee, and he could not doubt that justice would have been done, and their Lordships have been spared 630 the pain of being asked to adopt, or, perhaps, driven to adopt, a hasty determination against justice, and in violation of the best interests either of this country or her colonies. He would again briefly endeavour to state why he thought the clergy of the Church of England were the only Protestant clergy contemplated in the different Acts relating to this subject. If they looked to the 25th of Henry 8th., c. 19, they would find in the preamble of it words which confirmed that opinion. There was a more important testimony to be found in the 8th of Elizabeth, c. 1, which distinctly spoke of the estate of the clergy as one of the great estates of the realm, and then proceeded to speak of the consecration of bishops and archbishops, priests, and deacons. If they went further, they would find the Act of Uniformity in the reign of Charles II., an Act which had been considered from the time it was passed as fundamental to the Constitution of this country. That Act declared who were the clergy. It said,That no man was to be acknowledged or taken to be a lawful bishop, priest, or deacon, unless he had been episcopally ordained according to the proper form.That Act, the 13th and 14th Charles 2nd., declared, that no man was to be considered a minister of the Church who had not had episcopal ordination. [Viscount Melbourne.—That was in this Church—in the Church of England.] It was in the Established Church that they were not allowed to exercise any functions without being properly ordained. He need not remind their Lordships that at the time of the Union there was especial reason why the Church of Scotland demanded that the question of religion should make no part of the Articles of Union. They knew that the Churches of Scotland and England secured themselves on that occasion, by a separate Act of Parliament, which Act was a fundamental part of the Union. The Act for securing the Church of England recited the Act of Union, and especially named the Acts of the 13th and 14th Charles 2nd., and of the 13th of Elizabeth, and at the same time stated, that in all other Acts the Church of England should be properly secured, and which was specified as a fundamental condition of the Union. The Church of Scotland then thought fit to guard itself by the coronation oath, and the Church of England taking the same security, a material alteration of the oath took place at that period. The coronation oath was framed by 631 the 6th Act of William and Mary, and that Act only required the Sovereign should swear to preserve the Church as by law established in these realms: but by the 5th Anne, c. 5, the Act of Union, the oath was enlarged to the maintaining inviolate the Church of England, and the worship, discipline, and government thereof, as by law established in the kingdoms of England and Ireland, and Berwick-upon-Tweed, and the territories thereunto belonging. Now, in the meanwhile, the Scotch Church had only secured itself in Scotland; it was directly limited to the territory of Scotland; and that was the resolute determination of this country when it assented to the Union. That, too, was known to Scotland, as pretty well appeared by the Scotch statute of Anne, passed on the 31st of December, 1706, which said,That the 18th article (of union) having been read, and after reasoning thereon, an overture was given in for adding a clause in these terms—that all Scotsmen be exeemed from the English sacramental test, not only in Scotland, but in all places of the United Kingdom and dominions thereunto belonging, and that they be declared capable of office throughout the whole, without being obliged to take the said test, which passed in the negative.Now, how did that pass in the Parliament of Scotland? It passed in the negative. The Parliament of Scotland itself refused to do what was required. It refused to protect Scotchmen who came into this country from taking, as they were required to do, the sacramental tests. Now the claims of the moderator of the Synod of Upper Canada rested upon the Act of Union in Scotland. The General Assembly had done the same, and what was the part of the Act of Union on which their claims were grounded? The act said,That all the subjects of the United Kingdom of Great Britain shall, from and after the Union, have full freedom and intercourse of trade and navigation to and from any port or place within the said United Kingdom, and the dominions and plantations thereunto belonging; and that there be a communication of all other rights, privileges, and advantages, which do or may belong to the subjects of either kingdom, except where it is otherwise expressly agreed.That was the ground of claim of the Presbyterians of the Church of Scotland, to an equal establishment in the colonies. Now; he thought he had shown that the question of religion was expressly excepted from the consideration of the commissioners at the time of the Union, and that the 632 security of the Scotch church was confined to Scotland. But if that proved anything at all, it proved too much, for it would prove that they had equal rights to share in the Established Church in England and Ireland. He appealed to their Lordships whether that was not the necessary consequence? Could there be anything a more complete reductio ad absurdum than that? What was the effect of the union between Scotland and England, as respected the imperial laws of the United Kingdom? He spoke with deference, considering where he spoke, and before whom he spoke, but yet he could not refrain from expressing his conviction on the subject. He ventured to assert, that the constitutional doctrine was, that the laws of England were the imperial laws of the dominions of the United Kingdom. In Scotland alone was there an exception, that within the limits of that country the Scottish law prevailed. He held in his hand a judgment of one of the most learned and most eminent lawyers that had ever adorned this House,—he meant the late Lord Redesdale, who in the great Strathmore case said:—If your Lordships will look at the Act of Union, you will perceive that nothing is stipulated with respect to the continuance of the laws of England; but it is evident, and it has always been conceived, that the law of England was thenceforth to be deemed the general law of the realm of Great Britain—the new created realm of Great Britain—except as qualified by the particular provision with respect to the laws of Scotland contained in the 23d article of the Union." "I think it is evident, from the whole frame and texture of the articles of union, the laws of England were those which were to attach on the United Kingdom, except as they were qualified by particular provisions respecting Scotland." "You cannot construe the provisions in the articles of union, with respect to the law of Scotland, to extend beyond the local district of Scotland.He did not know whether he should be met by the argument, that there the learned Lord spoke of the United Kingdom, but said nothing of the territories; but if that were said, he could reply, that that learned person did not go beyond the question before him; but he would venture to say, that the principle was sound—that the law of England was that which pervaded all the territories of the British empire, except where it was modified by some express saving clause. In conquered countries, certainly, there was an exception, as until Parliament interfered, they must be governed by the King and Council. Now, 633 130 years had passed since the Union, but still the English law was that which prevailed in our colonies. He would state the two great particulars in which that was shown. It was in regard to property and marriage. What was the case with regard to property? That the law of England was the law which regulated all property acquired by Englishmen, and possessed by them in a foreign country; so much so, that if a Scotchman were to go to one of our colonies, acquire a domicile there, afterwards return to this country, and, before acquiring a domicile here, go to Scotland, and soon after die intestate, the law of England would be applied to the administration of his effects. That was the case of Dr. Monro in 1815, in which the question was, whether he was, at the time of his death, domiciled in England or Scotland, on account of the administration of his effects. And Sir John Leach thus ruled—that it was not to be disputed that Dr. Monro was domiciled in India, and that a domicile in India was within the province of Canterbury, and therefore the law of England, and not of Scotland, was to be applied in the administration of his personal estate. So much for the illustration afforded by the application of the English law to property in the colonies. Now, as to the law of marriage, he need not remind their Lordships, that the Marriage Act was confined to England and Wales, and did not extend beyond. What was the marriage law of the colonies? Their Lordships would find that the law of England, as it subsisted before the new Marriage Act, subsisted still as the marriage law of all our colonies, except where it was modified by some special provision. That this was the case in Newfoundland, even so late as the 57th of George 3d, appeared from the act which was then passed for regulating marriages in that colony. Their Lordships, too, were aware, that in order to constitute a valid marriage, it was necessary for it to be performed "per presbyterum sacris ordinibus constitutum." Were it not for the passing of this act, all the marriages to which he had referred would have been void. He conceived that, according to the laws of England, the ministers of the Church of Scotland could not be included under the term "clergy." He apprehended that it would not be a legal and sound construction of any Act of Parliament to say, that the words "Protestant clergy" could mean therein ministers of the Church of Scotland, and for this 634 reason, that by law the Church of Scotland had never been established in any part of the realm of Great Britain, or the dependencies thereof, other than the kingdom of Scotland. In the colonies, the ministers of the Church of Rome could legally solemnize marriage, for the law allowed that power to those who had received episcopal ordination, but denied it to those who had not; and thence it was that the ministers of the Church of Scotland, not having received episcopal ordination, could not legally solemnize marriage. Now, it would be for the noble Viscount to show, if he could, that the ministers of the Church of Scotland had received episcopal ordination. It would be for those who held opinions opposite to that which he (the Bishop of Exeter) maintained, to prove that ministers of the Church of Scotland could be included under the term "clergy." In Lower Canada, an Act had been passed legalizing the marriages which, before the passing of that Act, had been solemnized by the ministers of the Church of Scotland, ministers of other churches, or by justices of the peace. It declared those marriages to be good and valid, but, at the same time, it provided that nothing contained in the said Act should be construed to render valid any marriages solemnized by such parties subsequent to the passing of the said Act. Its preamble was in these words:—Whereas, since the conquest of this province by the arms of his Majesty, many marriages have been held and solemnized by ministers of the Church of Scotland, by persons reputed to be such ministers, by Protestant Dissenting ministers or persons reputed to be such, and by justices of the peace. Now, for the preventing and avoiding all doubts and questions touching the same, be it declared and enacted, that all marriages had and solemnized within this province since the 13th of September, 1759, by &c. (repeating the description of the persons as in the preamble), shall be, and shall be adjudged, esteemed; and taken to be and to have been good and valid.And he hoped that their Lordships would bear in mind that this enactment was accompanied with a most important proviso in these words—That nothing contained in this Act shall be construed or taken to confirm any marriages which shall be celebrated after the passing of the Act.This statute, as must be evident to their Lordships, gave relief, but so far from re- 635 cognizing marriages by ministers of the Church of Scotland, h declared that the marriages in future solemnized by them should be null and void. The 33rd of George 3rd, cap, 5, declared the necessity of rendering valid marriages contracted in Upper Canada, on the ground that there was not a sufficiency of Protestant clergy to discharge all the duties of the ministry, and this Act further declared valid all marriages solemnized between parties not labouring under canonical disqualifications; and here he begged to observe, that the objection to the solemnization of marriages by the ministers of the Church of Scotland rested wholly upon the ground that they were canonically disqualified. The title of the Act of the 33rd of George 3rd, cap. 5, was—An Act to confirm and make valid certain marriages heretofore contracted in the country now comprised within the province of Upper Canada.In considering the construction and effect of the law in this question, it was most important for their Lordships to look at the intentions of the Legislature, and those intentions he apprehended were best to be collected from the preambles of the Acts upon which the matter at issue depended. The preamble of this statute was in these words:Whereas many marriages have been contracted in this province at a time when it was impossible to observe the forms prescribed by law for the solemnization thereof, by reason that there was no Protestant parson or minister duly ordained residing in any part of the said province, nor any consecrated Protestant church or chapel within the same.And then it proceeds—Be it enacted and declared, that the marriages of all persons not being under any canonical disqualification that have been publicly contracted before any magistrate or commanding officer of a post, &c, or any other person acting in a public employment, shall be confirmed and considered to all intents and purposes good in law." Sections.—"Until such time as there shall be five parsons or ministers of the Church of England incumbent or doing duty in their respective parishes or places in any one district in this province, parties desiring to intermarry may apply to any justice of the peace, &c. Such magistrate to solemnize marriage according to the form prescribed by the Church of England.The38th of George 3rd, authorized the solemnization of marriage by clergy belonging to all denominations under the cir- 636 cumstances therein specified. It declared that—All ministers or clergymen of any congregation or religious community of the Church of Scotland, Lutherans or Calvinists, were authorized, under certain restrictions, to marry; and marriages celebrated since the passing of the 33rd George 3rd (above quoted), by ministers of those sects who should have complied with the regulations imposed by this statute are rendered valid, if between members of such congregations.Clearly showing that the law of the land did not recognize any marriages solemnized by ministers of the Church of Scotland, the term "Protestant clergy" in those Acts never having any other meaning than clergy of the Church of England. The words "Protestant clergy" in a British Act of Parliament could have no other meaning. As to the opinion given in 1819 by Sir Christopher Robinson, Judge of the Admiralty Court, by Lord Gifford, then Attorney-general, and by Lord Lyndhurst, then Solicitor-general, in which those learned persons stated that the term "Protestant clergy" might be construed to extend to the established clergy of the Church of Scotland, but not to the Dissenting ministers, that they were limited to those recognized and established by law, and did not extend to others, he should only say, that if the last whom he had mentioned of those three learned and eminent persons were now in the House, he had no doubt the noble and learned Lord would give his reasons in support of that opinion; but with great humility, but, at the same time, without hesitation, he ventured to say, that the authorities which he had cited were limited to the power and jurisdiction possessed by that Church within the ancient realm of Scotland, and related to the Church by law established in that part of the United Kingdom, and in no other, nor in any part of our dependencies. It was established by treaty, entered into and agreed upon between two independent states, and the power of the Church could not go beyond those limits. The Act of the 24th of Henry 8th, cap. 12, for the restraint of appeals, declared—That this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and king, having the dignity and royal estate of the imperial crown of the same, unto whom a body politic composed of all sorts and degrees of people, divided in forms and by names of spirituality and temporality.637 It set forth the fitness and ability of "the spirituality, now usually called the English Church, to give judgment in all cases spiritual;" and proceeds to say, thatWhereas the King, his most noble progenitors, and the nobility and Commons of this realm made sundry ordinances, laws, &c, for the entire and sure conservation of the prerogatives, &c. of the said imperial Crown of this realm, and of the jurisdiction, spiritual and temporal, of the same.The Act of Supremacy, 1st of Elizabeth, c. 1, is thus recited in the Quebec Act:—The King's subjects of the religion of the Church of Rome of and in the said province of Quebec may enjoy the free exercise of their religion, subject to the King's supremacy, declared and established by an Act made in the 1st of Queen Elizabeth, over all the dominions and countries which then did or hereafter should belong to the imperial down of this realm.Therefore, neither the Church of Rome nor the Presbyterian Church of Scotland could have ever been by law established in that province without the express repeal of that statute. It followed clearly from that Act, that the Church of Rome could by law never have been established in Canada, for that Church denied the supremacy of the King, and asserted that of the Pope, while the Church of Scotland equally denied the supremacy, and was, therefore, restricted to the limits of Scotland. He thought he had now laid before the House a sufficient primâ facie case to show that the word "clergy" really meant the clergy of the Church of England as by law established; and he, therefore, maintained that he had laid full and sufficient grounds for the first question which he intended to propose should be submitted for the consideration of the judges—namely,Whether the words 'a Protestant clergy' in the 31st George 3rd, c. 31 (s. 35 to 42), include any other than clergy of the Church of England, and Protestant bishops, and priests, and deacons who have received episcopal ordination? And if any other, what other?For the remaining questions, it appeared to him that he had likewise laid sufficient ground, and in proof of this he need only refer to the message of King George 3rd, in which that monarch specially desired that sufficient provision might be made for the Protestant clergy in Canada, and recommended that in future no grant of land be made in Canada without the reservation of one-seventh as a provision for the clergy. 638 He need hardly remind the House that these reserves were the property of the Crown. The remaining questions which he had to propose to the Judges were—Whether the effect of the 41st section of the 31st George 3rd, c. 31, but not entirely prospective, giving power to the Legislative Council and Assembly of either of the provinces of Upper or Lower Canada, as to future allotments and appropriations; or whether it can be extended to affect lands which have been already allotted and appropriated under former grants? 3. Whether, there being a corporation legally established for the management of the lands so allotted and appropriated, such Council and Assembly have power to apply the rents and profits arising from the lands already so allotted and appropriated to any other use or purpose whatever than the maintenance and support of a Protestant clergy? 4. Whether in the bill of the Legislature of Upper Canada, now lying on the Table of this House, entituled 'An Act for the Sale of the Clergy Reserves, and for the Distribution of the Proceeds thereof,' these powers, or either of them, have been validly exercised?Before the question was put to their Lordships, he would state a fact which he rejoiced that it was in his power to communicate. By that very day's post he had received a newspaper from Upper Canada, containing three distinct protests against the bill, which had been entered by several members of the Legislative Council; but that to which he especially would direct their Lordships' attention was one made by the hon. Mr. Elmsley, one of those members, a son of the late Chief Justice of Lower Canada, and a very amiable and honourable, as well as opulent, man. He was a Roman Catholic; and, being a Roman Catholic, he felt so strongly the iniquity of this bill, that he entered a very earnest protest against it, one part of which he begged to read to their Lordships:—Because, although power is given to the provincial Legislature to vary and repeal the several provisions contained in the Constitutional Act respecting the allotment and appropriation of the clergy reserves, such powers must of necessity be limited to the details of the measure, and cannot be construed to extend to the principle. Absolute departure from the original intentions of the Imperial Parliament could never have been meant. The Provincial Parliament have, therefore, no constitutional power to enact the bill which passed this House yesterday, inasmuch as the vital principle of the 31st George 3rd, chap. 31, is sacrificed, and a precedent established fraught with perils to our dearest interests, spiritual and temporal.639 The right rev. Prelate concluded by moving, "that the questions he had read be submitted to the Judges."
§ Viscount Melbourne
could not help expressing some regret, that the right rev. Prelate should have thought it necessary to enter so fully into the subject to which his motion related, and he promised their Lordships, that he would not follow the right rev. Prelate into the very elaborate arguments he had used as to the interpretation to be put upon the constitution of the Canadian clergy, or the application of the clergy reserves, or upon any of those questions which their Lordships would have to decide in disposing of the motion of which the most rev. Prelate (the Archbishop of Canterbury) had given notice for Monday next. The right rev. Prelate had not only gone into very profound legal arguments upon the subject, but he had made several charges of no light character against her Majesty's Government. He had stated, in the first place, that it was owing to the neglect and misconduct of Government that this matter had not long ago been set at rest; and that the Government ought to have thought a fair opportunity had been offered to them to give a decision which would have made it unnecessary for him to call upon that legal authority, the benefit of whose opinion he was now desirous of receiving. The right rev. Prelate had said, that the Government ought to have placed this matter in a train for legal decision: that they ought to have brought it before the Judicial Committee of the Privy Council for determination. The right rev. Prelate said,You offered that to the clergy of the church of Scotland in Canada, but they refused it; yet when the clergy of the Church of England there wished for such a reference of the matter, you rejected that proposal. This is owing to your immense partiality to Dissenters, and your decided hatred and dislike to the Church of England. It is sufficient for you that men be against the Church, that a sect should be hostile to the Church, you take them up immediately; and on the contrary, it is sufficient for you that the cause is that of the Church, for you to discountenance and discourage it.Now, he begged to state to the right rev. Prelate, and to their Lordships, that he was not influenced by such feelings; he was not sensible himself of any such partiality for Dissenters, or any such dislike to the Church of England. His feelings were rather of a contrary nature and 640 character; and he was sure that the statement of facts which the right rev. Prelate had made did not bear him out in the charge which he had thought proper to urge against her Majesty's Government on that matter on the present occasion. He must say, that the Secretary of State for the Colonies was quite right in offering that mode of deciding the question to the clergy of the church of Scotland in Canada which he did offer; and he thought that when he was asked by the clergy of the Church of England, he was quite right in not acceding to the request, because the object was to settle the matter satisfactorily to the whole of Canada, to bring the entire question to an amicable arrangement, and to do that which would allay and compose the differences that prevailed. But from the tone of the answer of the church of Scotland, from the manner in which the offer had been received, it was perfectly clear that no satisfactory settlement of the question could be arrived at in the way proposed by the clergy of the Church of England. Seeing, then, that a fair and proper settlement could not be produced by that means, the Government acted with wisdom and good policy in not putting the matter in that train which it was plain could not possibly lead to a satisfactory solution and settlement of the case. The right rev. Prelate had gone minutely into that which certainly formed the main question upon which their Lordships would yet have to come to a decision—namely, what was the meaning of the words "Protestant clergy" in the 14th and 31st of George 3rd, because their Lordships would observe that the latter was only a copy of the former. The Act of Parliament reserved all the rights of the Roman Catholic clergy of Canada, saving to his Majesty the right of making such provision as it was fitting to make for the maintenance of the Protestant clergy, and for the support of the Protestant religion. He then only begged to ask, if by "Protestant clergy" was meant the clergy of the church of ngland, or the clergy of the church of England and the church of Scotland why did not the Legislature of that day say so? Why did they not say the clergy of the church of England and the church of Scotland? Was it possible to believe, looking to that act, that the words "Protestant clergy" were not carefully chosen and selected for the purpose of embracing a much larger denomination of Christians, and of extending the provisions of the act exactly in the 641 manner in which they had now been extended by the bill which had been sent from Upper Canada? Otherwise, why should there be such a departure from the language and phraseology of all former Acts of Parliament? He would answer for it that they never found the Church of England, in all the statutes relating to the Church of England, called by the words the "Protestant Church," or the "Protestant clergy of the Church of England." The word "Protestant" was unquestionably a very great word in the doctrines of the Church of England; it was a great word in our ecclesiastical history, but it was not to be found in the 39 Articles of the Church—he believed not; he did not think it was either in the body or the title of those articles. He did not mean positively to say so, but he believed that to be the case. He had not read them all; he had read about half of them. He had read the most material—all those relating to the discipline of the Church. The Church of England was never called the "Protestant Church" in the statutes and ecclesiastical authorities, it was called Ecclesia Anglicana. The Act of Uniformity called it "the Church of England" throughout, and so did the Act of Toleration. He thought, but he would not positively assert it, that in Acts of Parliament the word "Protestant" was hardly ever used unless when applied to Dissenters from the Church of England; unquestionably it was so used in the Act of Toleration. At all events it was not a word introduced into the Church of England at an early period; it was brought from Germany, and referred to matters which had taken place in Germany, but to nothing which had taken place in England, and it was generally, he should say, applied to foreign churches, and not to the Church of England; whereas the application of all Acts of Parliament referring to the Church of England was to that Church as "the Church of England." It appeared, therefore, to him that there was a very strong presumption, amounting almost to a certain inference, that the words the "Protestant clergy" were carefully chosen and selected in that Act of Parliament for the purpose of leaving it open to the Government thereafter to make that distribution which might be called for by the prevalence or dominance of particular forms of religion in that country; because their Lordships would observe that that colony was then connected with the neighbour- 642 ing states of America, which, though the troubles had commenced, had not been separated from Canada, and therefore it was more than probable that the Legislature at that day, looking forward to the establishment of some sort of—or rather not establishing in Canada that Church of England which was the Church of our own country, but which unquestionably they never had established exclusively in those dependencies. He argued, then, that the term "Protestant clergy" did not mean that which the right rev. Prelate had maintained it did; and that the term "clergy of episcopal ordination," in acts of Parliament of James and Elizabeth, could not mean the established clergy on y, he thought was quite certain, because no man could deny that the episcopal clergy of Scotland were a clergy, though they were not an established clergy. With all that part of the right rev. Prelate's argument which would make a difference between the Church of England and the church of Scotland he had no fault to find, because the one had no more right than the other to these reserves; the church of Scotland had no more an exclusive right under the act of Parliament to this grant than the Church of England. Seeing that the right rev. Prelate had anticipated so much of the argument which their Lordships would have to go through on a future occasion, he had thought it necessary to state this much on this subject. With respect to the main question, now under discussion—that these questions be referred to the judges, he owned he did not see any necessity, or occasion, or reason, for pursuing such a course. It was a course which had not often been pursued by that House. It was a course liable, in his opinion, to some inconvenience, and not called for by the nature of the present question. The act of Parliament was plain; the words of it were clear and precise. There was no legal subtlety or legal technicality involved in the words of the act. There was nothing of any legal difficulty about the question; it was one which could be easily interpreted by any man who was capable of forming an opinion upon the subject, though not a lawyer. But if the matter were referred to the judges, they would not decide it in such a way as to satisfy all parties, because they would act in such a case as the counsel and advisers of that House, without having the question argued before them. It would not be beaten out by counsel on one side or on the other, 643 and therefore their opinion would he given in a way which would acquire little authority in consequence of the imperfect information upon which it would be founded. Therefore, since it was a case upon which it was easy to come to a decision, and upon which no benefit would arise from having the opinion of the judges, he thought it would be better for their Lordships to proceed without submitting these questions to those learned persons.
§ The Duke of Wellington
said, it was not his intention to discuss the questions upon which the opinion of the judges was required; all that he meant to trouble the House upon was, whether the questions should be put to the judges or should not. Neither did he think it necessary to follow the noble Viscount through that part of his address to their Lordships which related to his defence against certain supposed charges which he imagined the right rev. Prelate had made against the Government; he certainly did not understand the observations of the right rev. Prelate to have taken that shape in which they appeared to the noble Viscount. That which the right rev. Prelate did, and did most ably, was to state his opinion of the meaning of certain words in the acts of the 14th and 31st of George 3rd., upon which the noble Viscount had stated a directly opposite opinion; and the result of these two opinions of the right rev. Prelate and the noble Viscount was—at least the conclusion he drew from these different opinions of those two great authorities—great legal authorities, was—that their Lordships did require the opinion of a third party, and that third party the judges of the land. Here was an act of Parliament, the 31st of George 3rd, in which certain words were used, to which the right rev. Prelate attributed one meaning, and with great justice too, for there could be no doubt whatever that there were certain terms used and certain regulations enacted in that act of the 31st of George 3rd, which were applicable solely to the clergy of the Church of England. They could mean nothing else but the church of England. The noble Viscount, on the other hand, who did not mean to put himself forward as a legal arguer, said that certain words in the 14th and 31st of George 3rd must mean all clergy whatever. This, then, was another reason why their Lordships ought to have some opinion on that point, in order to assist them in respect to the meaning of the words; because there could be no doubt, that if the 644 meaning of those words was, that the word "clergy" meant the clergy of the church of England, the Canadian bill was one which ought not to receive the Queen's confirmation. To go further, the right rev. Prelate had referred to particular parts and clauses of an act passed in the 7th and 8th of George 4th, in which the same signification was asserted. It was not an act by which any powers were conveyed to the Canadian Parliament to alter or repeal former acts; and that was a point upon which the right rev. Prelate had very properly desired to have the opinion of the judges. He thought the judges could have no difficulty in giving an opinion upon that point, however they might feel with regard to other points. But with respect to the act of the 31st of George 3rd, it was quite clear that the reserves, whether they were made for the clergy of the Church of England or for the clergy of all sects generally, were made for a Protestant clergy. That was admitted by the noble Viscount himself. But it appeared that this measure included in its provisions the clergy of the Roman Catholic persuasion. That was another reason for asking for assistance to enable the House to decide whether or not it ought to use the power it has under the Act of Parliament to beseech her Majesty to withhold the royal assent from this bill. The right rev. Prelate had advanced grounds for requesting the opinion of the judges which had not been at all refuted or disturbed by the noble Viscount. Even he had stated his difference of opinion from the right rev. Prelate, and had said enough to show the House, that when such differences existed they ought, in fairness, to call for assistance to enable them to come to a proper decision. He should, therefore, support the motion.
§ Lord Abinger
could not help thinking, that upon the statement of the noble Viscount, contrasted with that of the noble Duke, it was proved to a demonstration that it would be necessary to ask the opinions of the judges. Upon that subject, so far as related to the meaning of the words "Protestant clergy," he must own, that he thought that any man who came fresh to the subject must have a very overweening confidence in his own judgment, if, after having heard the arguments advanced by the right rev. Prelate, he could come at once to an opposite conclusion. He owned that he should wish, although much inclined to agree with the right rev. Prelate, for an opportunity of consulting 645 the judges on this subject. With respect to another part of this case, he confessed that he thought it so clear, that it did not admit of a difference of opinion. He would in a few words call their Lordships' attention to this part of the case. By the act 31st George 3rd, he believed that it was the 35th clause, it was provided, that no grant should be made of any land to any of his Majesty's subjects, unless the grant contained an allotment and appropriation of some portion of the land, hearing a certain proportion to the whole, for the purpose of affording support to the Protestant clergy. Now, under that clause, many grants of land had been made to individuals, and many allotments had been made out of those grants to the Protestant clergy, because, if such an appropriation had not been made, the grants themselves would have been void. Now, then, came another clause, enabling the Canadian Legislature to vary and alter the provisions of that act. But what was the effect of that clause? It enabled the Provincial Legislature to alter the provisions of that act in future, but he could not think that any man who knew anything of law, and was accustomed to the acknowledged rules of construction where an act of Parliament was called in question, would venture to say that the act gave them any retrospective power. Now, let their Lordships suppose that these appropriated portions of land had been enjoyed by incumbents under appropriations made by the different parties, and that the Canadian Legislature had the power to undo all that had been done. He could not imagine, for one moment, that any one would contend that such a power of varying and altering an appropriation which had been already made, was vested in the Colonial Legislature; that could only be done by the Legislature of this country, which could do anything. But, what was very remarkable in this Canadian Bill was this—the power given was not to affect provisions which had already been made, but those which might be made afterwards, and yet it would be found, upon an exmination of the bill, that they had exercised a retrospective, and not a prospective, power. This blunder was so extraordinary that he could not conceive how it could have been made, and he thought that it must have required a Cabinet Minister to make it. As some doubt had been thrown upon the meaning of the words "Protestant clergy," it was in his opinion advisable that the question should be referred to the 646 judges. As to the other point, it was so clear that there could not be a doubt upon it.
§ The Lord Chancellor
said, that as his noble and learned Friend felt so entirely certain upon the subject, he wished to say that he (the Lord Chancellor) had a doubt which had not found its way into his noble and learned Friend's mind. It appeared, that what his noble and learned Friend called "an appropriation," was not an appropriation for any particular service, but was a reservation and an endowment for some particular purposes. His noble and learned Friend's argument was founded upon the appropriation of these lands to particular individuals; but as this was not the case, his argument had no foundation whatever. This bill, their Lordships were well aware, had two subject-matters with which it dealt. It not only dealt with land, at that time the property of the Crown, but it also dealt with the tithes of existing rectories. Now, these rectories were Catholic rectories, and, therefore, the point on which his noble and learned Friend relied, failed him altogether. The act of 14th George 3rd required that the occupiers of land should pay tithes to the Catholic incumbents, provided they were Catholics themselves; but where the lands were occupied by persons not Catholics, they were not to be compelled to pay their tithes to the Catholic incumbents, but those tithes were to be at the disposition of the Government for the purposes intended by the grants made to the Protestant clergy. Now, it was clear that the persons protected from the payment of tithes to Catholic incumbents, were all the individuals who were not Catholics, of whatever denomination of Protestants they might be. Then came the 35th clause, which enacted that the appropriation of the land as well as the tithes reserved, should be at the disposal of the Crown, and that no appropriation should be made, except by any act which might be passed by the Legislative Council and Assembly, and which should receive the assent of his Majesty, his heirs, and successors. Here, then, they saw that the provisions of the act might be irretrievably altered by the Colonial Legislature, and that they had the power of altering what his noble and learned Friend called an appropriation, but what ought to be called reserved property. He only wished to mention this point, because his noble and learned Friend felt so certain upon it, otherwise he should not 647 have thought it necessary, as he was equally certain the other way. He did not mean to say, that the act of 1791 might not require the assistance of the judges, if any particular legal construction was to be put upon it; but the question was not as to the construction of the act of 1791, but whether the Colonial Legislature had the power to repeal that act. If there were any doubt whether the Colonial Legislature had the power to repeal that act, that question might be a subject of consideration for their Lordships, but it was not a question which ought to be submitted to the judges. As to the second question of the right rev. Prelate, it was limited to this—whether the effect of the 41st section of the 31st George 3rd, c. 31, were not entirely prospective, giving power to the Legislative Council and Assembly of either of the provinces of Upper or Lower Canada as to future allotments and appropriations; or whether it could be extended to affect lands which had been already allotted and appropriated under former grants. Now, to show how entirely his noble and learned Friend had been mistaken in his views as to appropriation, he begged to call their Lordships' attention to the clause which related to the endowment of Protestant rectories. That clause authorized the Crown from time to time, by an instrument under the great seal, to endow every such parsonage or rectory with so much or such part of the land as the Governor-General, with the advice of the Council, should judge to be expedient under the then existing circumstances of the said country. How then could it be said that these reserved lands were reserved exclusively for the Church of England? The Governor was only to allot so much of the land as, under the then existing circumstances of the case, he might think proper. There was also another clause to which he wished to call their Lordships' attention—the 42nd. It was to the effect, that whenever any act or acts should be passed containing any provision which, in any manner, affected the form or mode of religious worship, or the payment, recovery, or enjoyment of any emoluments, stipends, or dues of any priest, ecclesiastic, or minister, then it was not to pass into a law until thirty days after it had been laid before Parliament. This surely contemplated a local act with the power of granting or imposing provisions which affected the mode of religious worship. He would now come to the motion made by the right rev. Prelate. 648 The first question which he had proposed related to the construction of the act of the 31st George 3rd, as to the power of the Colonial Legislature to repeal that act. Then there was another question, whether that legislature had the power of repealing it prospectively or retrospectively. Now, he certainly had never seen anything come so entirely within the definition of a leading question as these questions of the right rev. Prelate. It was as much as to say, "You will find that there is no real doubt about it;" and this was the way in which the right rev. Prelate proposed questions for the consideration of the Judges. It was suggesting what answer a witness should give. The question was put thus: "Is it not entirely prospective?" And the right rev. Prelate asked, "Can it be extended to affect lands which have been already allotted and appropriated under former grants?" Now, the way in which these questions should be put would be such as would obtain a statement of the law, and then the application of the law should be left to Parliament. The third question was liable to the same objections. As to the fourth question, he apprehended that it was entirely contrary to law, because it put the whole question to the Judges. The question "Whether these powers had been validly exercised?" was asking whether these powers were or were not legal? He did not mean to enter into a discussion of the legal merits of the question on the present occasion, nor should he have expressed any opinion at all, if his noble and learned Friend had not rather challenged him on the point of appropriation. He would now tell their Lordships what the effect of the right rev. Prelate's motion would be, if it should be successful. There were only six judges at present in London; and, if the opinion of the judges were required, they ought to have the solemn opinion of the whole. Some of them were now on the circuit, and, as he understood, they would not be able to return till next week, so that it was absolutely impossible to obtain the opinion of the whole body. Again, whatever opinion they might pronounce, the facts on which that opinion was given must form a subject of debate on the ensuing motion of the most rev. Prelate, which must, if that opinion were given, be necessarily abstracted from the consideration of their Lordships. He submitted that the better course would be to take the discussion on the most rev. Prelate's motion first, in the course of which much light would no doubt be thrown on these questions; and if 649 any doubt afterwards existed, then it would be time to move that one or two questions be submitted to the judges for the purpose of obtaining any information that might be required.
§ Lord Wynford
said, if he had entertained any doubt as to the propriety of consulting the judges, all that doubt would have been removed by the difference in opinion between his two noble and learned Friends. He was sure, that after the difference of opinion among lawyers which had been expressed, that was quite sufficient to induce their Lordships to agree to the motion. Such a case had occurred when he had the honour of being Lord Chief Justice of the Court of Common Pleas, when a question was proposed to the judges as to usury in India. The noble Viscount had said, that he did not consider this question a matter of any difficulty. He did not think it a matter of very great difficulty, but he begged leave to state, that the view he took of it was entirely different from that of the noble Viscount. Whether the noble Viscount or himself were right he did not know, but he wished to have the opinion of the judges to inform him. The question was as to the meaning of the words "Protestant clergy." He could not think, standing as those words did in this act of Parliament, the 31st Geo. 3rd, that it was possible to apply those words to any other persons than the clergy of the Church of England. The clergy of that church were Protestant clergy, and he should say that those words, speaking generally, meant the clergy of the Church of England; but if there could be any doubt as to the point, it was removed by the clauses which immediately followed. The clergy, under the act, were to be clergy subject to the canons of the Church of England. What other clergy were subject to those canons but the Protestant clergy of the Established Church of England? They were to be subject to Bishops. What other clergy in the British empire were subject to Bishops except the Roman Catholic clergy, who could not of course be considered "Protestant clergy." The noble Viscount thought they could not do any good by consulting the judges with reference to this discussion on the very important motion of which the right rev. Prelate had given notice. He thought it would have a very material and important effect on that discussion; because, if the view of the subject taken by his right rev. Friend were correct, it would remove a great difficulty out of their way. If the Legislature of Canada could not by 650 law do that which they had done, there would be no occasion to discuss the policy of addressing the Queen to withhold her assent from this act. The question as to whether the Colonial Legislature had power to repeal the 31st of George 3rd, was shown to be one of great difficulty, by the contrary opinions which had been expressed upon it by two very learned and eminent persons. Whether all the questions were worded as they ought to be, he could not say; but in substance, as far as regarded the first of them, at least, they were calculated to get at that information which was wished for. He had no hesitation in saying, that the clergy reserves were expressly reserved for the purposes of the Church of England, and it would be a violation of the act of Parliament which formed the constitution of Canada, to take from the clergy of that Church those reserves, and apply them to other purposes. It would also be a most unjust violation of the rights of the Church, aggravated by the fact that the clergy of the Church of Eng-gland in Canada were not at this moment in that condition of prosperity which a well-wisher would desire. Instead of being convinced by what had fallen from his noble and learned Friend on the Woolsack, that they ought not to send these questions to the judges, he was convinced that it would be most proper to do so.
The Earl of Haddington
said, that on a former occasion, he had taken the liberty of urging on their Lordships' attention the claims of that great body of his fellow-countrymen who were established in Upper Canada. The claims which they had preferred to a share of the clergy reserves had received the sanction of the law officers of the Crown at the time they were made, and as no other noble Lord connected with the northern part of the United Kingdom appeared inclined to take part in this debate, he was anxious to say a very few-words on the subject. He begged to say, that both in what he had said on a former occasion, and in the observations he was now going to make, he was actuated but by one feeling—the earnest desire that his Christian fellow-countrymen in Upper Canada should have religious instruction afforded to them by clergymen of their own church. He always saw with very great pain any occasion on which the two established churches of the empire were brought into anything like hostile or unfriendly collision, and for that reason he had listened to a great portion of this debate with 651 much regret and concern, but he should feel that he was not doing his duty to the interests of his countrymen if he allowed this debate to pass without saying a few words. He had listened with great attention to the very able speech of the right rev. Prelate at the table. Not being learned in the canon law like his noble Friend opposite, and having still less pretension to enter into a discussion with the right rev. Prelate on a subject of that kind, their Lordships need not apprehend that he was about to make the attempt. Indeed, if he were capable of doing so, he should only be trespassing needlessly on the attention of the House, as the right rev. Prelate stated his object to be to get the opinion of the judges. The right rev. Prelate had adverted to the claims set up by the Presbyterian Synod of Upper Canada, through its moderator, the rev. Mr. Gale. He begged leave to say, that he did not at all consider himself bound to adhere to the arguments of the rev. Mr. Gale, drawn from the Act of Union. Most undoubtedly there were many persons who did conceive that, under the articles of union, in the colonies conquered by Great Britain after the union, the Church of Scotland had as clear a right to the support of the State as the Church of England could have. He had looked through the two acts referred to by the right rev. Prelate—the act of the Scottish Parliament, establishing the Church of Scotland, and the act of the English Parliament, establishing the Church of England. Unquestionably all that the Scottish act did was to secure the Presbyterian establishment within Scotland, for the very excellent reason that that country had, at the period of the union, no colonies or territories beyond sea subject to it. In the English act there were found the words "and the territories thereunto belonging," which unquestionably covered all the colonies subject to England at the time when the act was passed. It was the opinion of many persons that the colonies acquired by the kingdom of Great Britain since that time were differently situated. The right rev. Prelate had stated a number of reasons to their Lordships why that should not be the case and it was no part of his intention at present to enter into any controversy with the right rev. Prelate on the question. The right rev. Prelate had shown that the English marriage law prevailed in the colonies acquired subsequently to the union, but he hardly thought that told much in favour of the right rev. Prelate's views on 652 this question between the two establishments. He thought the right rev. Prelate carried the argument too far when he maintained that the words "Protestant clergy" could by no possibility apply to the ministers and clergy of the Church established in the other part of the United Kingdom. If the right rev. Prelate was right in saying that the Church of Eng-gland was the only church that could by law be established in the colonies, no doubt the church of Scotland must be excluded; but, with very great deference to the right rev. Prelate, he thought that, to restrict the term "Protestant clergy" to the Church of England, was a straining of the words beyond what they would bear. He was only anxious that the proper meaning to be attached to those words should be given to them, and had no desire whatever that the Church of Scotland should come into collision with the Church of England in the colonies. Impressed by what appeared to him to be the plain and rational meaning of the term "Protestant clergy," and fortified by the opinion in favour of the Church of Scotland given by the law officers of the Crown, he had, on a former occasion, recommended to their Lordships' notice the claims of his countrymen in Canada to a share of the clergy reserves. Would the right rev. Prelate allow him to put a case which might tend to set the view for which he was contending in a just light. He would suppose an act of Parliament to be framed, extending to the whole of the United Kingdom, and conferring some exemption or privilege to the clergy. Would the right rev. Prelate contend that the clergy of the Established Church of Scotland would not come within the meaning of the act as clergy? He apprehended that they most unquestionably would, else what would be the effect? The episcopal clergy of Scotland, dissenting from the Established Church of Scotland, according to the doctrine of his noble Friend opposite, which was accepted by the right rev. Prelate, would be entitled in Scotland to the exemption or privilege from which the clergy of the church established in Scotland by law would be excluded. The right rev. Prelate Would be very willing to admit the title of the clergy of the episcopal church in Scotland, in the case which he supposed—he was prohibited by the act of the union from calling it the Church of Scotland. Thus the established clergy of Scotland would be excluded, and a body of Dissenting clergymen would be admitted, 653 according to the right rev. Prelate's view. Under the law, as it had hitherto stood, the natives of Scotland, in a very important part of the colonial empire of Britain, saw the episcopal clergy, who, in their own country, were a Dissenting clergy, engrossing the whole of the clergy reserves, and their own clergy, who were established by law in Scotland, excluded from any participation in them. The consequences of this state of things, if it were allowed to continue, he feared would be such as their Lordships and the empire must deeply deplore. If his countrymen in Canada at all resembled their brethren at home, which he apprehended was likely enough, their attachment to their own church was one of the strongest feelings that belonged to them, and he apprehended that there could not be a greater misfortune than to raise in the minds of those men an idea that there was a tendency on the part of the Legislature of this country to degrade the church to which they belonged, which they looked up to with reverence and gratitude, and which they knew was established by law in the country of their birth. It was of the most essential importance to this part of the population of Canada that they should have teachers of their own church. The bulk of them were men of humble birth, and following laborious occupations, and he could assure their Lordships that they would not go to any other church. With them this subject was one of immense importance, and they carried with them from their own country an attachment to its own church, which was one of the strongest feelings of their hearts. The result would be, that if the clergy of the Church of England were established in sufficient numbers to teach them, still they would not attend on such ministrations. Preachers would come from the United States to supply their want of instruction, for the soundness of whose religious tenets there could be no security, and whose politics would unquestionably be of a most objectionable character. He very much feared, that, if due provision were not made for the religious wants of these persons, whether from the proceeds of the clergy reserves, or some other source, for all he wished was, that proper instruction should be afforded them in the religion to which they belonged, the most serious consequences would follow in the alienation of their minds when they were led to believe that they were treated with injustice. He had al- 654 ready observed, that they formed no inconsiderable portion of the population of Upper Canada. He should be very sorry if, in what he had said, he were considered guilty of the presumption of laying down the law to their Lordships, than which nothing could be further from his intention. He was most anxious not to claim for the Church of Scotland anything more than strictly belonged to her in law. What he was anxious to obtain was, that if that Church were really not entitled to any share in the clergy reserves, she should have aid from the State, and that Parliament should consider it part of its duty to see that instruction was provided for her members. He certainly thought it desirable that the opinion of the judges should be taken on this subject, and, therefore, he should vote for the motion of the right rev. Prelate. But he might be permitted to observe, that he did not know whether the first question which the right rev. Prelate proposed to put might not be considered something of a leading question. He should be glad if the right rev. Prelate would allow the Church of Scotland to be mentioned in the question. His principal object was to direct the attention of the judges fairly to the claims of the clergy of that Church.
The Bishop of Exeter
My notion was to include Scotland, but I could not do it without using a word which would give rise to an argument. I could not do it without naming the clergy of the Church of Scotland, which I did not wish to do. I left it out for the sake of peace.
hoped that his noble Friend who had just sat down would consider again and again before he agreed to put in any form the first of the right rev. Prelate's questions. It might be right, after the opinion which had been expressed by his noble and learned Friend near him, and the contrary opinion expressed by the noble and learned Lord on the Woolsack; to put the second question, inasmuch as the noble and learned Lords appeared to entertain very different opinions as to the legality of this proceeding of the Legislature of Upper Canada. But he wished to draw their Lordships' attention to the first of these questions. They were desired to ask the learned judges what was the meaning of the words "Protestant clergy." He had ventured to express his doubts, when this subject was last before the House, whether it were fitting that they should put any questions to the judges respecting it. He doubted whether they should not confine 655 themselves to putting questions to the judges when specific information on legal points was absolutely necessary to direct their Lordships in legislating wisely. It appeared to be an entirely novel proceeding for their Lordships to go to the judges for the purpose of ascertaining their judicial opinion, and afterwards report to the Crown their opinion upon the law to guide the Crown in giving or withholding its assent to the act. It was for their Lordships undoubtedly to express their opinion, if so called upon, on the expediency of this act of the Legislature of Upper Canada; but he confessed it still appeared to him, after all that had been said by the right rev. Prelate, that it rested with the advisers of the Crown to consult with the legal advisers of the Crown for the purpose of guiding its conduct, and that it was not for their Lordships, for the first time, to express a legal opinion on the subject. But if it were, why ask the judges their opinion on the first point? That point was entirely beside the question of law. It had a material bearing on the question of expediency, but no relation whatever to the question of law. For no matter whether by the Protestant clergy were meant the clergy of the Church of England, and the episcopal clergy of Scotland, and the Established Church of Scotland, or other descriptions of clergy were to be included, it had no bearing as regarded the question of law, because, under the 31st George 3rd, the Legislature of Upper Canada had the power of changing and repealing the law as respected the proportion to be allotted to that Protestant clergy. They were called upon to ask the meaning of the term "Protestant clergy." Why, the act of the Colonial Legislature now under consideration appropriated part of the clergy reserves to the Roman Catholic clergy, who there could be no doubt did not come within that description. Therefore the whole question of expediency was open to them, but that of law was closed; for there was no doubt that the Legislature of Upper Canada had altered the disposition of the reserves as settled by the 31st. George 3rd, and there could be no doubt that they had the power of doing so under the restrictions imposed by that Act. On the ground of principle, therefore, it was not desirable that they should put a question to the judges on that one point. But was it expedient? He thought far from it, very far from it indeed. He did not think, if their Lordships found the 656 opinion of the law advisers of the Crown in 1819 confirmed by an opinion of the judges favourable to the Church of Scotland, that they would very much improve the condition of the Church of England in Upper Canada; and if the opinion of the judges should be contrary to that of the law advisers of the Crown, he did not think they would have done anything for the preservation of peace in the colony. He entirely agreed with his noble Friend in thinking that the Church of Scotland in Canada ought to be provided for from the public purse. He knew no other funds which were available for this purpose but the clergy reserves, and if this Act should not be sufficient to include them, he was ready to agree to an imperial act for that purpose. He was ready to go further. It was impossible for any man who had read with attention the papers submitted to their Lordships for the last two or three years to avoid coming to the conclusion to which he had arrived—that it was utterly inconsistent with the peace of Canada, and with the present relations between the mother country and that colony, to attempt to maintain the ascendancy of the Church of England there. The thing was impossible. It might be desirable, but it was impossible. It was incompatible with the maintenance of the connexion between this country and the colony. He was, therefore, not disposed to run the risk of attempting it; and it was for this reason that he strongly advised their Lordships not to ask for an answer to the first question. If their Lordships should resolve to put one of those questions, he thought that they ought to put another, which went to the root of the whole question, and that was whether, when the Act gave power to transfer to the Colonial Legislature certain proceeds arising out of the sale of the clergy reserves in Canada, and invested in the funds of this country, and also gave power to sell all the lands of the clergy in Upper Canada, when the Act of the Imperial Parliament said, that only a portion of them, not exceeding a fourth part of the whole, should be sold, it was not ipso facto invalid. He thought that if their Lordships went to the judges with that question, there could be no doubt as to the answer which they would receive. The judges would tell them that the Legislature of Upper Canada had not power to make such a sale of the clergy reserves, and that their bill was therefore altogether invalid. He would rather come to that conclusion than to the conclusion at which the right 657 rev. Prelate had arrived. He confessed that there was nothing to which he looked with greater apprehension than the defeat of the natural wishes of the people of Upper Canada by their Lordships, and particularly by that portion of them which represented the Church of England in that House. He knew of nothing that would prove more fatal to the Church of England in Upper Canada than such a defeat. The Church of England maintained itself with great difficulty there already. It was not likely to receive many recruits to its ranks from this country, as the emigrants who proceeded thither were in general either Presbyterians or Roman Catholics. It derived little assistance therefore from emigration, and must look to the converts it made for the propagation of its doctrines. It was not looked on with favour. He was sorry to say that no established religion ever was. The first duty of a Christian state was to establish gratuitous instruction for the people in matters of religion. That was his opinion, to which the Assembly of Upper Canada had at last come, though it had long entertained a different opinion. Let their Lordships, therefore, take advantage of this favourable movement, and use the present opportunity, the last, perhaps, that Parliament might have, to establish a religious education for the people of Upper Canada. He had prepared a question which he would propose should be put to the judges, after the House had decided on the questions proposed to be put by the right rev. Prelate. He would ask the judges, whether the Act of the Legislature of Upper Canada was legal; and whether that Legislature had not exceeded the powers given to it under the Act of the 31st of George 3rd, by altering the provisions of an Act of the Imperial Parliament which gave no power to the Colonial Legislature to alter it.
The Bishop of London
could not remain silent after the speech which had been just been delivered to their Lordships, although it had been his intention when he entered the House to take no part in the present debate. He had listened with unmixed pain and sorrow to the declaration which had just been made by the noble Lord, who was not less distinguished for his talents and his eloquence, than he was for his zeal and attachment for the Church of England. The noble Lord had declared that after deliberate inquiry he had arrived at the conclusion that it was impossible for the Legislature of England, to maintain the 658 ascendancy of the Established Church of England and in the colonies. Now, what was meaning of the term "ascendancy," as applied to the Church of England in the colonies? Was there any man who claimed for the Church of England in the colonies the same ascendancy as that which it enjoyed in this country. Was it not positively excluded from such ascendancy in Upper Canada, by an Act of the Imperial Parliament, by that Act which gave rectories to the clergy, but with the express proviso that they were not to exercise the same rights which were attached to rectories in this country. Moreover, was there in Upper Canada a single office under the Government from which a Dissenter, as a Dissenter was excluded? The ascendancy which he asked for the Church of England in Upper Canada was simply this—that it should be permitted to remain in possession of the property which had been assigned to it by the Legislature; and, therefore, when the noble Lord said that it was impossible to secure for the Church of England ascendancy in Upper Canada, he must mean that it was impossible to secure to it the rights of property which it now possessed. Now, unless their Lordships were prepared to abandon their own rights of sovereignty over the colony of Upper Canada, they must maintain there the rights of property belonging to the Church. If the contrary doctrine were admitted to be correct in the colonies, it would not be long before they would have it applied to the Church of England as established in Ireland; and not only to the Church of England as established in Ireland, but also to the Church of England in those parts of England, where, owing to the neglect and inattention of the Government, the Church of England was not able to carry out its functions in a manner at all commensurate to their sacred and important character, as at Liverpool and in other parts of Lancashire. In making that remark he did not mean to attach blame to the present Government exclusively; on the contrary, he was complaining of the neglect which many former Governments had exhibited to ecclesiastical affairs, and especially to ecclesiastical affairs in our colonies. He must again repeat his deliberate conviction, that the Church had not been attended to as it ought in our different colonies. He felt most grateful to that Sovereign who, as head of the Church of England, had felt it to be his duty to make provision for the clergy of that Church in our different colonies. He 659 was, however, sorry to say that his most gracious intentions had not been carried fully into effect, and that those reserves which he had got allotted for them, had been suffered to remain in an unimproved state, and that the very fact of their being in an unimproved state, had been turned into an argument against their continuance for the object to which they were devoted. Instead of such an argument being deduced from their unimproved state, the true inference was, that some new mode of arranging them should be adopted, by which they could be rendered serviceable to the purposes for which they were intended. He held it to be the duty of the clergy of the Church of England, not to spare any efforts to give the Established Church a legitimate ascendancy. He held it to be a vital principle of the constitution, that the Protestant religion should be upheld in every colonial dependency of this country; and when he saw the efforts that were now made in all our colonies, to elevate the church of Rome and to weaken and depress the Protestant Church, he could not hear without deep sorrow and alarm so distinguished an advocate of Protestanism, as the noble Baron was known to be, declare in his place in Parliament, that we could not maintain in our colonies the ascendancy of the Church of England, or, in other words, Protestant ascendancy. Let it not be forgotten, that there was already in Lower Canada an established church, and that that established church was Roman Catholic. The two Canadas were on the point of being united to each other. Their Lordships were therefore bound to look to the state of the Church in each of those two provinces. The Roman Catholic religion, he repeated, was the established religion in one of those provinces. They were about to secure to the clergy of that religion, the enjoyment of a large mass of property, to which their title had been hitherto disputed. Now, when they were settling this matter so much in favour of the church of Rome, it was not exactly the proper time to deprive the Protestant Church of that which she conceived, and, he believed, conceived justly, to be her rights. He repeated, that he could not hear in silence the declaration which had just fallen from the noble Baron. If the noble Baron should persevere in pressing the question which he had given notice of, he trusted that there would be sufficient Protestanism found among their Lordships to prevent it from being put to the judges. Their Lordships might depend 660 upon it, that a wound of this nature, though inflicted now upon one of the extremities, would soon be felt in our most vital parts. Every blow inflicted upon protestantism in our colonies made itself felt after a time at home. He hoped that there would be found sufficient Protestantism in this, the first Protestant assembly in the world, to prevent them from deserting the Church of England, and from suffering it to be weakened first of all in the colonies, and afterwards at home. Let their Lordships look upon this country as the citadel of Protestantism, and not suffer a blow to be dealt at it, which must weaken it in its remotest outworks.
§ The Earl of Ripon
would not enter, at present into the general merits of the act upon the table, as another opportunity of discussing them would be afforded to their Lordships. He would confine himself to the consideration of the proposition of the right rev. Prelate—namely, whether these questions ought or ought not to be put to the judges? He should doubt whether there was any necessity for putting the first question on the right rev. Prelate's list; for he did not think that it would follow that the act ought not to be assented to. however the doubt of the right rev. Prelate might be solved by the judges. He must confess, that when he came down that evening to the House he entertained doubts whether he should vote for the putting to the judges any one of those questions; and though he was now disposed to vote for putting to the judges the second of the right rev. Prelate's questions, and also the question proposed by his noble Friend near him, he must recommend the right rev. Prelate to withdraw his third question. He should vote for putting the second question to the judges for the very reasons assigned by his noble Friend at the head of the Government for not putting it: for his noble Friend had laid it down as a principle decided in his own mind, and not to be doubted in any other quarter, that these words "a Protestant clergy," could not mean the clergy of the Church of England exclusively, but must apply to the clergy of all Protestant sects of whatever denomination. Now, the expression of such an opinion by his noble Friend had certainly taken him quits by surprise. No such opinion had been previously stated in the discussions which took place on this question, 661 both in that house and in Upper Canada. It had never been propounded either to the law officers of the Crown in 1819, or to the committee which sat on the affairs of Canada in 1828; and if they looked either to the evidence which was then given, or to the documents which were now upon the table, they would see that the notion of dividing these clergy reserves among all sects of Protestants never had arisen; and, therefore, he was disposed to think that some opinion from the judges on this part of the case might be desirable to aid the judgment of their Lordships. He did not wish to be understood to say, that if the judges should be of opinion that the words of the act did not include all sects of Protestants, there might not be reasons of policy, expediency, and prudence, leading their Lordships to include them all. But certainly it was a point on which there ought to be a clear understanding. On the other point which had been touched on by his noble Friend near him, relative to the appropriation of the funds arising from the sale of the clergy reserves, he must observe, that he considered it vital on this question as to their power to do anything. He meant that this act varied, for it did not repeal, all the clauses relative to the creation and endowment of rectories. But it not only repealed other clauses appropriating the reserves which it had the power to deal with by the act of the 31st George 3rd., but it also repealed another act passed in 1827, which did not contain a clause authorising the Canadian Legislature to deal with it at all. That was a great difficulty as far as the conduct of that Legislature, was concerned, for if the Legislature of Canada had no right, by its own authority, to repeal the act of 1827, this act could not be valid in reality, even though the Crown should give its assent to it.—[Lord Melbourne:—An act may render it valid.]—You may have an act! Yes, that was the real, true, constitutional remedy; but then, how comes the necessity of so dealing with this subject? This was an act recommended to the Colonial Assembly by the Governor-General. He sent them down a draught of this law, and they passed it with some minor alterations, and both the draught and the act itself contain a clause repealing the imperial act of 1827. The provision about the re-investment of the money was recommended in the act as it now stands; but that was not all. Their Lordships would find that there was a clause both in the bill of the governor and in the 662 act passed by the Colonial Legislature, directing the appropriation in a new form of all proceeds arising from the clergy reserves, sold or to be sold. Now, there were no sales of clergy reserves, except under the act of 1827. That act directed a portion to be sold not exceeding a fourth of the whole, and provided that the proceeds should be invested in the funds in England, there to be applied to the improvement of the clergy reserves, or in such other way as should best promote the objects for which the clergy reserves were set aside, and for no other objects whatsoever. Such were the words of the act of 1827. That act was repealed by the present act, and he should be surprised if he were told that the Colonial Legislature had the right to repeal an act of the Imperial Parliament. If the Canadian Legislature had not that right, they had manifestly exceeded their powers. He looked upon this as a matter of great importance. He might be wrong in his view of the law of the case, but his experience led him to doubt whether the Colonial Legislature had the right which they had exercised in this bill, and therefore he thought it at any rate expedient that their Lordships should have the opinion of the judges upon it.
§ The Earl of Galloway
merely rose to prevent it being thought that the peers of Scotland were indifferent to the feelings of the Presbyterians in Upper Canada. One of the most important functions of Government was, to see that religious instruction was conveyed to all classes of the people, and he could not discern any grant of public money more important than one for such a purpose. But the question was not now whether a grant should be made for that object, but whether it was competent for the Legislature of Upper Canada to apportion any part of the fund reserved in Canada for the religious education of the people to any purpose but that of education, according to the principles of the Church of England. He had entertained great doubts upon the subject himself; he had looked at the act of Parliament. In the first part of it a "Protestant clergy" was mentioned, and there it might be explained in different ways; but, in the latter part of it, the clergy of the Church of England were distinctly mentioned, and, therefore, the general intention of the act might be inferred from the specific mention of the Church of England at its close. The inclination of his mind was, that "a Protestant clergy" was used for the clergy of the Church of Eng- 663 land. He was pledged in Scotland to support church extension, and in stating the opinion which he had just uttered, he was doing nothing in contravention of that pledge. He felt bound to support his own religion, but he would not do so at the expense of committing an act of injustice to those who professed a different religion. The bill which had come to them from Canada, proposed, not only to give these funds to the two Established Churches of Great Britain, but also proposed to share them with the Roman Catholics. Now, all through the act of 1791, these funds were exclusively devoted to the Protestant clergy, be they Presbyterian or Church of England, and, therefore, the Canadian Legislature must have exceeded its powers, in granting them to the Roman Catholic clergy. Their Lordships required on this subject the ablest legal advice, and when they had obtained it, they would be better able to decide on the whole question.
§ Lord Ashburton
apprehended that each of these questions proposed by the right rev. Prelate should be put separately. This question had created a great deal of irritation, both in England and in the colonies. The great matter to be determined was, what was to be the meaning of the statute, where the words "Protestant clergy" were used. The noble Lord denied that the Canadian Legislature could define what that meant; but they had already done so. It was quite clear that the distribution of the ecclesiastical property to the Catholic clergy could not be included in the terms of the act. No one could be more desirous than he was, to see the Church of England established throughout every part of the British dominions; and a grievous mistake had been committed, in not establishing it at the first formation of this colony. Masses of population had been sent out, without the slightest attention being paid to their spiritual charge. But if the right rev. Prelate (the Bishop of London) spent only six weeks at present in Canada, he would find it to be wholly impossible to establish a dominant church there, as was proposed by the clergy. Such an institution was opposed to all the habits of thought, and prejudices of the people. And the difficulty would only be increased in the present excited state of their minds. The real question involved in this discussion was, to ascertain the real power of the Colonial Legislature—whether, in fact, the act of that Legislature was good for anything at all? Unless this was accurately 664 ascertained, legal quibbles would inevitably arise; they would be charged with exceeding their powers, the apple of discord would be again thrown amongst them, and their entire arrangement would be absolutely worthless. It would be with the greatest reluctance that he should refuse his consent to any bill brought in for the purpose of accurately defining the limit to which the power of the Colonial Legislature extended.
The Bishop of London
had not urged the formation of a "dominant" church in Canada. The question was not whether the Church of England were to be the dominant church in that colony, but whether it were to continue in existence—not whether its revenues were to be enlarged, but whether it were to be extinguished altogether.
§ The Marquess of Lansdowne
said, that the question as to the claims of the Church of England to ascendancy, or rather as it had been defined, to exclusive payment and endowment in the colonies, was one of too vast magnitude and importance for him to enter upon it at the present moment. It was now proposed to be put to the judges, as a matter of doubt, whether, under the designation of Protestant clergy, the Presbyterian clergy were to be included. He believed that the act included both churches. But then the noble Earl opposite found that in one clause the clergy of the Church of England were carefully included, and when he found the words carefully excluded from another portion of the bill, therefore the noble Earl concluded that the same clergy were referred to solely by the bill. That was, however, contrary to all the rules for construing acts of Parliament. It had been proposed by noble Lords on the opposite side that the whole of the clergy reserves should be vested in the Crown at once. Now that would have been violating the act of 1791, and to the extent of preventing those reserves forming any fund for the clergy at all. Now that was indeed an act of violation—an act, to use the words of the right rev. Prelate, of gross and scandalous spoliation, for it deprived the clergy of their "vested rights," and made them absolutely dependent upon the Crown for ever. After having acted upon one opinion for many years, the proposition of the right rev. Prelate tended to do this—to throw all into doubt; and to open to the Canadians the discussion of this question, that those funds were to be given to those of one religion alone, and 665 excluding all the test. He was glad that the opportunity was afforded to the House of fully weighing all the consequences, and considering all the responsibility of the measure now submitted to their Lordships. They would, he was sure, consider what would be the effect of their determination upon their colonial dominions, and he would say upon the doctrines of the Church of England itself. He hoped, however, that the right rev. Prelate would see the propriety of altering his motion, especially as to the third and fourth resolutions, referring to a charter. If the right rev. Prelate retained those resolutions, he would only be leading the judges astray. He had inquired at the Colonial Office, and he could assure the right rev. Prelate that there was no charter of any such corporation, nor had there ever been any such charter. On the grounds he had referred to, he hoped the House would be induced not to allow the questions to be put.
§ The Earl of Galloway
explained that the impression upon his mind was, that the Protestants of Scotland were excluded by the terms of the act. He had not, however, said that he had made up his mind fully upon the subject, and he must be sure of what the intentions of the Legislature were before he could give his vote in favour of the act of the Canadian legislature.
The Bishop of Exeter
did not mean at that late hour to trespass on their Lordships' time at any great length, but there were one or two points on which he trusted he would be permitted to offer a few observations. As to the corporations alluded to in the third question which he had proposed, he would tell their Lordships the course which he had taken. He had taken these corporations as he had found them. He was, however, told by the noble Marquess that no charter existed; but individuals who had acted under that charter had told him the reverse. He found, in fact, that there was a charter granted in 1816, and also another subsequent to that time having relation to the upper province. Why had not those charters been produced? He had applied to the Government to lay them on the Table, but the Government had as yet made no return to the order of the House. He had no doubt that those charters did exist, and he was persuaded that they had a valid and legal existence. He would not, however, discuss the point, and all that he had to say on the matter was that he was quite ready to strike out the words in the proposed questions which re- 666 lated to corporations. There was one point more to which he wished to allude. It was, contended that some provision ought to be made for the Presbyterians. Now, as far as the Presbyterians in connexion with the church of Scotland were concerned, he should be glad to see assistance given them, and he only implored their Lordships not to put their hands into the pockets of the clergy of the Church of England in order to provide that assistance. He had been astonished to hear it said by a noble Lord in the course of the debate, that there was no other quarter from which such assistance could come than the clergy reserves. Now what was the opinion of the Governor-general upon this subject? The Governor-general said, that there was in fact so little to be divided, that it was not worth disputing about, and yet it was proposed to take away a part of that little, when the whole was totally inadequate for the purpose for which it was intended.Nil habuit Codrus: quis enim negat? EtTamen illud perdidit infelix totum nil.As he understood it, these reserves were set apart as an endowment for the clergy of the Church of England, and it was because he believed they belonged to that clergy, that he asked their Lordships to consent to the motion which he had made.
§ Their Lordships divided: Contents 57; Non-contents 40; Majority 17.667
|List of theCONTENTS.|
|Colchester||Stuart de Rothsay|
|List of the NOT-CONTENTS.|
|Duke of Rutland||Earl of Scarborough|
|Marquess of Huntley||Earl of Rosebery|
|Marquess of Salisbury||Duke of Bedford|
|Marquess of Thomond||Earl of Uxbridge|
|Marquess of Ailesbury||Earl of Carlisle|
|Earl of Winchelsea||Duke of Roxburghe|
|Earl of Aberdeen||Duke of Norfolk|
|Earl of Carnarvon||Earl of Suffolk|
|Earl of Glengall||Lord Talbot of Mala-hide|
|Viscount Sydney||Earl of Zetland|
|Lord Dynevor||Lord Sherborne|
|Lord Wharncliffe||Lord Byron|
|Lord De Saumarez||Lord Wenlock|
|Lord Fitzgerald||Lord Montford|