Lord Ellenboroughbegged to ask the noble Viscount at the head of the Government for an answer to the questions put by him (Lord Ellenborough) last night.
§ Viscount Melbournesaid, he had inquired into the nature of the pledge which had been given in another place, and was ready to make the same pledge to their Lordships. Unquestionably it was not intended to advise her Majesty to give her assent to the bill which had been passed by the Legislature of Upper Canada until such a period should have elapsed in addition to the 30 days as should be equal to the period occupied by the vacation. If, besides this, any longer time were required to enable the judges to give their opinion upon the questions submitted to them, he should have no hesitation in undertaking that the assent should not be given till this time also had elapsed.
Lord Ellenboroughsaid, that the promise just given by the noble Viscount was not precisely that for which he had asked. He wished the noble Viscount would give the House a pledge that he would in no case advise the Crown to assent to the bill, if the House should express its opposition 958 to the measure by an address to the Crown, within such a period as might necessarily elapse before the sense of the House could be taken upon the subject.
§ Viscount Melbournedid not think he could, consistently with his duty, give any further pledge than he had already given, as he did not know under what circumstances the address might be presented, or by what arguments it might be supported, but he thought the noble Lord might safely rely on the effect which such an address must produce.
Lord Ellenboroūghsaid, that as far as he was concerned, he should be quite satisfied with what had fallen from the noble Viscount, because he felt convinced that the answer of the judges to the first of the questions submitted to them would be that the bill was invalid. If such were their opinion, the motion of the most rev. Prelate would become unnecessary, and he felt anxious that no unnecessary discussion of the question should take place, because nothing would be so likely to prevent a specific settlement of the question as a course which would commit right rev. Prelates and their Lordships to extreme opinions, which it would be impossible to carry into effect. If he might address a prayer to the most rev. Prelate on the part of the people of Canada, he would entreat the most rev. Prelate to declare to the House that he would not press on the motion of which he had given notice.
The Archbishop of Canterburyshould have been most happy to postpone his motion and to avoid the discussion to which it would give rise, if he received an assurance from the noble Viscount that after the thirty days had elapsed, the noble Viscount would consider the address of the House as having the same power which it would have if presented within the thirty days. He really did not see why the noble Viscount should feel any hesitation at acceding to this arrangement. He was quite as desirous as any of their Lordships could be to prevent any unnecessary discussion from taking place upon a matter of so much delicacy, and in which the passions and feelings of the inhabitants of Canada were so much engaged; and he felt the more surprised at the refusal of the noble Viscount, as he had not been without a hope that some amicable arrangement might have been made which would secure a provision for the Established Church in the colony, and effect such a regulation of the clergy reserves as might prevent any further dis 959 sension from taking place upon the subject. There was no desire on the part of the Church to push the claims of the Church to their full extent. The Church wished, for the sake of peace, to male any reasonable concession with regard to property, provided always that the Church was recognized as the Established Church of the colony. This was a point on which the Church had never deceived the House, and if he abandoned this just right of the Church, he should be justly reproached with a dereliction of his most sacred duties. With regard to the property of the Church, he desired that it should be so secured as not to be subject to fluctuate with the various sentiments of successive governors and the temporary ascendancies of political parties. The tenure upon which the Church property was held ought to protect it from the conflicting claims of other religious communities. If this point were satisfactorily settled, he should be ready to consent to place a considerable portion of the clergy reserves at the disposal of her Majesty's Government, but he felt assured that no such settlement could ever be made by the Legislature of the colony. In looking through the various plans and propositions which had been made and rejected or adopted in the Colonial Assembly, he discovered one point of concurrence in them all, and that was the consciousness which they exhibited on the part of the colonial Legislature of its own inability to settle the question, and of the expediency of referring the final decision to the Imperial Parliament. He knew he should be told that their Lordships had now before them a bill passed by the colonial Legislature which professed to settle the question. It was very true that such a bill had passed, but it by no means followed that it expressed the sentiments of the colonial Legislature, for the measure had been adopted at the express suggestion, not to say the dictation, of the Governor-general. It appeared that it was entirely owing to the Governor-general that this bill had pasted. He was far from thinking worse of it on that account, but the circumstance fully justified him in maintaining that the bill did not speak the plain and unbiassed sense of the colonial Legislature. Their Lordships were not in the same situation with respect to this bill as they would be in if the measure had originated in this country, for they were under the necessity of rejecting it altogether, or of adopting it with all its defects. He might be allowed also 960 to observe, that this bill involved a general question of the greatest importance to the interests of religion in all parts of the empire, and which could only be satisfactorily settled by the Imperial Parliament. His object, however, was not to arraign the bill now before their Lordships, but to state the disposition which existed on the part of the Church not to press the rights of the Church to the full extent authorized by the existing law, so far as those rights related to property only. But let not the Church be degraded from the position which it held as the Established Church in different parts of the empire, let it be at liberty to preserve its legitimate rights in peace, apart from political feeling and without molestation from the claims of other religious communities, making at the same time such concessions with respect to property as ought to be generally satisfacfactory. If he had received an assurance that the same force would have been given to an address of the House presented after the thirty days had expired, as would belong to it if presented at that moment, he meant to have submitted to the consideration of her Majesty's Government a proposition founded upon the principles which he had just stated, and if the proposition met the approval of the Government, it would have rendered his motion unnecessary on the other hand, if the proposition were rejected, and their Lordships should have been of opinion, nevertheless, that it was a proper and reasonable one, he should with greater confidence have moved the address to the Crown. He thought that the bill now before the House was in its present state most unsatisfactory, and he was certainly disappointed at not receiving the distinct assurance which he had expected from the noble Viscount; however, if the general opinion of their Lordships was that he ought to be satisfied with the declaration which the noble Viscount had made, he should not press his motion. ["No, no."] Then he had no alternative but to proceed according to the notice which he had given.
§ The Duke of Wellingtonbegged the House to recollect that its present position, there being only twenty-one clear days for this bill to lie on the table instead of thirty, was owing to the noble Viscount himself and his colleagues. If the rev. Prelate were to put off his motion, the House would not stand in precisely the same position as if it were brought on on Monday. However, as the most rev. Prelate was dis 961 posed to put off his motion, he hoped, after what had been stated, that the most rev. Prelate would do so. He should be the last person to endeavour to prevail on then-Lordships not to agree to that postponement, as far as the House could safely; but he wished to see something of the kind proposed by the right rev. Prelate, who should take the case as much as possible into his own hands, both with regard to the great interest the Church must feel in this question, as well as the interest which the public had in seeing religion and good government established in this country. But he begged again to submit to the noble Viscount that there was a claim on his generosity, if not on his good faith, as the noble Viscount was aware that the House, in consequence of the holydays had only twenty-one days to decide that, for which it ought by law to have had thirty days. The noble Viscount should consider that circumstance, and allow the House full time for the consideration of the bill.
§ Viscount Melbournehad no objection to do all in his power to meet the wishes of their Lordships; but only let their Lordships consider what he was asked to do. He was asked to give a legal effect to the address, which it really would not have. After the thirty days had expired, the address on this subject would be no more than an address on any other subject, and was it then for him to say, that if the House agreed to an address, he would advise the Crown to accede to it? He would say, that such a thing had never been done since the time of the long Parliament: such a proceeding would be very much like the proceedings of that period. When the noble Duke said, it was owing to him that the House had not had sufficient time to consider this subject, he was not aware of what he meant; for the act as soon as it had arrived from Canada was laid on the table; and he did not see, that the Government could have pursued any other course.
§ The Duke of Wellingtonsaid, that what he meant was this—that the noble Viscount might have laid this bill on the table thirty days before the commencement of the Easter holydays, or he might have delayed it until the first day after the recess.
The Earl of Winchilseaconsidered this one of the most important subjects that had ever been brought forward in this House, and one on which more public interest 962 existed in this country than any other that ever came under their Lordships consideration. He thought there was not much inducement to trust to what might be the effect of an address after the legal time had expired, considering what had been the result of former addresses under similar circumstances. He did not know whether it were or were not according to the form of the House that the noble Viscount should withdraw this bill altogether, but if it could be done, the House would at once be relieved from its difficulty. He at the same time contended that the most rev. Prelate ought not to proceed with his motion on Monday.
§ The Earl of Riponwas aware of the difficulty in which the House were placed by this bill, but he thought it had been overrated by his noble Friend who had just sat down, by not considering the position in which they stood if the opinion given by the law officers of the Crown were correct, and that opinion was confirmed by the judges. The noble Viscount had stated that the opinion of the Law Officers of the Crown was, that it was not competent for the Legislature of Upper Canada to pass the bill now on the table. If that opinion were correct, the Crown could not give its assent to the bill, and it could not become law by any process short of an Act of Parliament. If, then, the House were inclined to address the Crown on the subject, the Government could not practically give their advice to the Crown to assent to it. The noble Viscount said, that notice had been given in the other House, on the assumption that this act was not law, to bring in a bill for the purpose of making it law by an Act of Parliament. Their Lordships would, therefore, have three opportunities of considering this subject—. first, on the second reading of that bill; secondly, on going into Committee upon it; and thirdly, on the report being brought up. Under the circumstances, he did not think the noble Viscount could give a more specific answer.
The Archbishop of Canterburysaid, that the noble Viscount would perhaps allow him to ask whether he meant to act upon the opinion which had been given by the Law Officers of the Crown? There could be nothing unconstitutional, or that could remind the noble Viscount of the proceedings of the Long Parliament, in giving an answer to that question; nor anything unprecedented in his acting on that opinion, because, in respect to this case, there was 963 an opinion given by the Law Officers of the Crown in 1819, which had been acted upon as law, and assumed to be law, by the different Colonial Secretaries of State ever since.
§ Viscount Melbournesaid, it certainly was his intention to act on that opinion, and indeed the Government had already acted on it.
The Archbishop of Canterburywished to know whether the consideration of the bill now before the other House would involve the whole merits of the question. He felt himself bound not to withdraw the motion at this time, as it was in no way connected with party of any kind. It was a motion too, which, considering the infirmities of age which he now suffered, he never should have been induced to bring forward, but from the sacred obligation of duty. He conceived that by this bill a portion of the united church would be so far deprived of the means of subsistence as almost to amount to extinction; and how could he answer to his conscience, if he were not to request the attention of their Lordships to a measure of so much importance, and which tended to deprive many of her Majesty's subjects of spiritual consolation?
§ Viscount Melbournesaid, the question which had been asked by the most rev. Prelate was one of Parliamentary proceeding, and which, he apprehended, there could be no difficulty in answering. It was perfectly clear that the bill in the other House must involve the merits of the whole question.
The Bishop of Exeterwished to know, whether their Lordships were to understand, that if the bill which was brought in in another place, to supply the defect of the bill now on their Lordships' table, were not to pass, the noble Viscount would feel it his duty not to advise the Crown to withhold the Royal assent from the bill now on the table? He must say, that if that bill should receive the Royal assent in spite of that defect, though that defect might apply to only a part of the bill, it would leave the rest of the bill untouched and operative.
§ The Earl of Riponsaid, the apprehension of the right rev. Prelate was quite groundless, for it was not competent to the Crown to give its assent to a bill which it was not competent for the Colonial Assembly to pass, and still less so to a part of it.
The Bishop of Exeterapprehended, that there was nothing to prevent the Crown 964 from giving its assent to the bill now on the table, because, according to the opinion of the law officers of the Crown, a part of it exceeded the power of the Colonial Legislature If that were so, why should the noble Viscount hesitate to say, if the defect were not amended, whether he should advise the Crown to give the Royal assent to the bill?
The Bishop of Londonsaid, it appeared that the opinion of the law officers of the Crown had been taken as to the legality of a certain part of the act now lying on the table; and that they considered the Colonial Legislature had exceeded its powers with regard to that part, and therefore that her Majesty could not give her assent so as to make that part of the bill law. That, in fact, vitiated the whole act; and, as it now stood, her Majesty, under the advice of her Ministers, could not give her assent so as to make it law. If, under these circumstances, the Church, by her representatives, came forward and said, "Let us put this act aside, and negociate on fair and liberal terms;" if she was willing to forego her rights, and concede a very liberal portion of her liberty, that ought to induce the Government to say, that this was no bill, and that they must begin de novo, and legislate the same as they would in any other case. Why could they not legislate on a great scale, and settle the question at once?
Lord Ellenboroughsaid, after what had taken place, the most rev. Prelate would have no difficulty in withdrawing his motion for Monday; because there was no doubt that this act was invalid, and that it was perfectly impossible her Majesty could give the royal assent so as to make any part of it law. He was most desirous that, in endeavouring to settle this question so as to satisfy the people of Canada, they should do nothing that would excite the feelings of the people of this country. The most inconvenient course, as he thought, that her Majesty's Government could possibly pursue was that which they now proposed to adopt; namely, the introduction of a bill. It would be in the recollection of their Lordships, that a bill was before the other House for effecting an union between the two provinces of Upper and Lower Canada. To that bill it would now be useless to offer any objection. The state of things which had led to its introduction were now so far advanced, that he feared such a measure had become necessary. Now, it was well known that in the Acts of Union with Scotland and Ireland, pro 965 visions were contained relating to religion; he, therefore, thought it would be most convenient that any provisions of a similar kind which might be necessary with regard to Canada should be incorporated in the act of union. He entertained no doubt that such an arrangement would be satisfactory to all reasonable members of the Church of England, and would be more satisfactory than any other to the inhabitants of both the Canadas. He hoped, then, that her Majesty's Ministers would reconsider their plan, and give to the suggestion of the most rev. Prelate the attention to which it was deservedly entitled. He further hoped that the provisions of the act of union would be well and carefully considered, for he fully believed that upon it depended the peace of Canada and the connexion of that colony with Great Britain.
The Earl of Falmouthshould be perfectly satisfied with the assurance of the noble Viscount opposite, provided that he felt certain that his understanding of it were correct. He wished to know, whether or not the noble Viscount was to be understood as stating that he proposed to give a pledge that he should place the House after the holydays in the same situation, with respect to the Clergy Reserves Sale Bill, as if the thirty days had not expired during the recess.—[Viscount Melbourne was understood to say, Certainly not.]—Then if that was not the understanding, he feared that before the end of that period, some circumstances might arise, which would probably place their Lordships in a very awkward position with reference to this bill.
The Archbishop of Canterburythought, it would be very satisfactory if the noble Lord on the Woolsack would state his view, as to whether the Crown could assent to a bill, in the enactment of which the Colonial Legislature had gone beyond the limits of that power, which they might be considered legally and properly to possess.
§ The Lord Chancellorsaid, there could be no doubt that if they had in any particular exceeded their authority, the consent of the Crown could not be given to the bill.
The Bishop of Exeterobserved, that if the judges, in reply to questions put to them, declared that the Colonial Legislature had gone beyond their powers, then was he to understand that neither to the whole, nor to any part, could the assent of the Crown be granted?
§ The Lord Chancellor, that the royal assent could neither be given to the whole, nor any part of the bill, if the judges gave 966 it as their opinion, that the Legislature had exceeded their authority.
The Bishop of Londonsaid, it now being understood, that if the judges decided against the authority of the Colonial Legislature, the bill could not receive the royal assent, in withdrawing the motion, then, its supporters evidently receded from a certain ground of safety, giving thereby the best possible pledge of the amicable disposition by which they were actuated.
The Marquess of Lawsdowneobserved, that the most rev. and right rev. Prelates in thus consenting to withdraw the motion, best consulted the interests of the Established Church. With respect to the main, question, of course the Government would be considered as leaving it open to future consideration.
§ The motion of the Archbishop of Canterbury it was understood, was not to be brought forward.