§ Viscount Duncannon moved, that there be laid before the House copies or extracts of all despatches or correspondence between the Government of Canada and the Secretary of State for the Colonies, from the year 1819 to 1839, on the subject of the clergy reserves in that part of her Majesty's possessions.
The Bishop of Exeter
rejoiced that the noble Viscount had made the motion which the House had now heard. It was a motion to which, of course, he should not offer any opposition, but, on the contrary, give it his most cordial support, hoping, as he did, that it would include all the information that he sought by the motion of which he had given notice, and which stood for their Lordships consideration that evening. If, however, he should move specially for any other documents by way of addition to those moved for by the noble Lord, he trusted that the Ministers of the Crown would as readily agree to the papers for which he intended to move as he did to their motion. He repeated that he rejoiced to see that the Government had thought it necessary to bring forward a proposition of this nature, for he thought it only due to the House that there should be laid before their Lordships every information which Ministers possessed upon a question so important. Nevertheless he was astonished, if the advisers of the Crown had thought proper to bring the matter forward at all, that they had not done so much earlier; and he was still more astonished at the communication made by the right hon. C. P. Thomson, Governor-general of Upper and Lower Canada, to the right hon. Lord J. Russell, her Majesty's principal Secretary of Stale for the Colonies, introducing to his notice the bill now before their Lordships. It astonished him exceedingly that such a despatch should have been written by any public functionary holding a situation so high and responsible as that occupied by Mr. Poulett Thomson. He should not say, that the Governor-general of the Canadas had been guilty of the suggestio falsi. He should make no charge of that kind against so eminent an individual; but this he would say, that the averments contained in the despatch of the Governor-general were as contrary to the truth as any statements could possibly be. He did not mean to say that those untrue averments were in- 262 tentional; he said nothing of the sort, though he was utterly unable to understand by what process the right hon. Gentleman arrived at such conclusions as those which were contained in his despatch; he confessed that it did appear to him incomprehensible, how the right hon. Gentleman could have felt himself at liberty to make such statements. The despatch in question was dated "Toronto, 22nd of January, 1840," and contained this most remarkable sentence—But no one who had not had the opportunity of examining upon the spot the working of this question can correctly estimate its importance.That was the language held by the Governor-general before he had been one month in her Majesty's North American possessions. It must be quite evident to their Lordships, and indeed to every one who looked at the despatch and bore in mind the date of the right hon. Gentleman's departure from this country, that the knowledge which he alleged to be so necessary for arriving at sound conclusions upon the subject could not have been acquired by himself. It was impossible, that within one short month he could have acquired any personal knowledge of the least practical use, and yet he declared that knowledge to be of the highest necessity. The right hon. Gentleman proceeded to say of this question, that—It has been for years the source of all the troubles in the province, the never-failing watchword at the hustings, the perpetual spring of discord, strife, and hatred.These were, perhaps, amongst the strongest terms which the language could furnish; but he requested permission to call the attention of the House for a moment to the instructions given to Sir Francis Head, dated the 5th of December, 1835, and written by the then Secretary of State for the Colonies, in which he spoke of the conflict between the two Houses (those constituting the Legislature of Upper Canada), and pronounced that conflict to involve no danger to the peace of the colony. The words were these—The conflict of opinion between the two houses upon the subject, much as it is to be lamented, yet involves no urgent danger to the peace of society, and presents no insuperable impediment to the ordinary administration of public affairs.The writer of those instructions was a 263 Member of the late Cabinet, and his statement was, that the differences referred to involved no danger to the peace of the colony. That might be true, but he must be permitted to say, that the same noble Lord subsequently permitted himself to administer a stimulant to the languid agitation then going forward upon this subject. The noble Lord said,It is not difficult to perceive the reasons which induced Parliament in 1791 to connect with a reservation of land for ecclesiastical purposes, the special delegation to the Council and Assembly of the right to vary that provision by any bill, which, being reserved for the signification of his Majesty's pleasure, should be communicated to both Houses of Parliament. Remembering, it should seem, how-fertile a source of controversy ecclesiastical endowments had supplied throughout a large part of the Christian world, and bow impossible it was to foretell, with precision, what might be the prevailing opinions and feelings of the Canadians upon this subject at a future period, Parliament at once secured the means of making a systematic provision for a Protestant clergy, and took full precaution against the eventual inaptitude of that system to the more advanced stages of a society then in its infant state, and of which no human foresight could divine the more mature and settled judgment.He wished to know whether or not those instructions were intended to be kept private. The House had been, upon a former occasion, told, that instructions had been sent out to the Governor directing that those instructions should be published in extenso. Subsequently, that was thought inconsistent with the dignity of the Government, and it was intimated that the substance only ought to be published; but this was accompanied by a remark that the more that was published the better. That these instructions acted as a stimulant upon the languid feeling of the colony there could not be a shadow of doubt. He should now supply the House with the means of forming some judgment between the sentiments of the present Colonial Secretary and Lord Glenelg, the writer of the instructions which he had just read to the House. So recently as last Tuesday, the noble Lord, the present Secretary of the Colonies, expressed himself in these terms:—There can be no doubt that this is a question upon which a very strong feeling has existed in Canada—so strong, indeed, that I have heard from more than one quarter that part of the insurrection which took place three 264 years ago in Upper Canada was to be attributed far more to the excitement that prevailed upon this topic, than to any wish to separate the colony from the Crown.Such was the statement which this high authority upon Colonial affairs was reported to have made. He should heartily rejoice to see those documents upon the Table of their Lordships' House, which would set controversies of this kind completely at rest. He confessed, that the statement to which he had just called attention had greatly startled him, for he concluded that it never could have been made upon anything less than the authority of positive despatches, and he, therefore, applied upon the subject to one to whom the country was most deeply indebted, and one whom he had the honour and the happiness of calling his Friend, one who had done more for the Colonial empire of England than any other individual whatever—one of whom he would say generally that the country owed him more than to any other individual, save one now present, whose merits exceeded all those of all other men. He addressed a letter to Sir Francis Head, from whom he received this reply;—My dear Lord Bishop,—I have this moment received your letter of the 28th, in which you ask me, whether you are right in thinking that the clergy reserves had nothing to do with the insurrection in Upper Canada in 1837. My own opinion is scarcely worth your acceptance, but I send you—1. A letter from Mr. Speaker Papineau to Mr. Speaker Bidwell, dated March 15, 1836. 2. A paper headed 'Independence,' printed and published at Toronto, by Mr. M'Kenzie, on the evening before the rebellion broke out. 3. A proclamation addressed by Mr. M'Kenzie to the inhabitants of Upper Canada, dated Navy Island, Dec. 13, 1837 (nine days after the rebellion.) To these documents I may add the fact, that the rebellion of 1837 was suppressed by the militia of the province without the slightest regard lo religious distinctions. The officer commanding the skirmish, or as it is called in Upper Canada, 'the battle' of Gallows-hill, was a member of the Church of England. Some of the most distinguished in the ranks were Presbyterians and Catholics; and I remember, just as we came in sight of the rebels in their position at Gallows-hill, the Rev.—Evans, attended by the principal of the Wesleyan Methodists, who had voluntarily walked by the side of my horse to the point, in bidding me adieu pronounced these words;—'Our men are with thee; the prayers of our women attend thee.' From the above facts you will be best able to form a correct judgment. My own humble opinion is, that the 265 insurrection in 1837 had nothing whatever to do with religion, with clergy, or with law. On the contrary, it was an attempt to destroy all three, and to exchange British institutions for democracy.I remain, &c.Hanwell, March 30. "F. B. HEAD.He should not trouble their Lordships by any reference to the papers which Sir Francis Head had forwarded to him. He thought that the letter was of itself all-sufficient. It was clear, he should say, from this letter, that in the year 1837 the clergy reserves had nothing to do with the discontents. The object clearly was, to get rid of the law of the Church and of British connexion, for the purpose of establishing a democracy upon their ruins. He presumed that most of the noble Lords now present would agree with him that a decision respecting this great question was one which it would be peculiarly unfair to prejudice in any manner whatever, and he, therefore, trusted, that the documents supplied by the Government would include all that could be necessary for enabling Parliament to come to a sound decision upon this great question. He should now proceed to another part of the letter of the right hon. Gentleman, at present in the Government of Canada. At page 2, he says—For many years past the representatives of the people have uniformly refused to assent to an appropriation of this fund for religious purposes at all, and have steadily maintained its distribution to educational or general state purposes; and it is only the strong desire which is entertained of coming now to a settlement which has led many, who formerly advocated these opinions with success, now to withdraw their opposition, and to assent to this measure.That was not only totally foreign, but contrary to the real facts. There were two clear exceptions to this—one in 1834, and one in 1836, which left not a shadow of doubt that nothing of the sort should have been stated so broadly. He regarded such statements as proceeding from incompetent witnesses, and paid to them no more attention than to the idle wind. Towards the conclusion of his letter the Governor-general said—I will not believe that any successful opposition to the confirmation of this bill by her Majesty will be allowed to prevail.He wished to know was not this evidently intended to be laid before Parlialiament. [Cries of "Oh!"] He could also 266 say "Oh, oh! ["Order!"] It clearly was so intended. [The Marquess of Lansdowne—thatdid not appear.] Could anyone suppose that such language was intended to be private? The despatch concluded with these words:—Most fervently, then, do I pray that the settlement now agreed to, may be final, and that no obstacle may be opposed to its confirmation by her Majesty. Should it be otherwise, and the question should again be thrown back for decision here, I cannot foresee the consequences; but at least, I know that peace and tranquillity must, in that event, long remain strangers to this province.Now, he asked, in return for the interruption of the noble Marquess, was that, or was it not, intended to be laid before Parliament? Was it not understood to be a private and confidential letter? He called upon the noble Marquess to answer that question fairly and fully when it became his turn to address the House. He would now proceed to notice one or two more inaccuracies. The despatch went on;—I will not believe that any successful opposition to the confirmation of this bill by her Majesty will be allowed to prevail; but, as I am informed that representations may be made at home with that view, I shall beg to send in this despatch a short account of the manner in which this question has for years past been treated in this country, as illustrative of the advantage which the settlement now arrived at by the Legislature holds out, as contra-distinguished from all previous decisions.From all previous decisions! How many decisions had there been? One and one only. The bill of last year was the only previous decision upon which the right hon. Gentleman presumed to make that statement. Such was the accuracy with which he had indited his despatch.I need not advert," continues the despatch "to the early history of the disputes on this subject, until the year 1823–4, when a motion was made in the House of Assembly on the subject by Mr. Morris, for an address to the throne, praying for the recognition of the right of the Church of Scotland to share with the Church of England in the reserves.Their Lordships would suppose that the natural interpretation to be put upon these plain words was, that the House of Assembly at this time were called upon to send an address to the throne—For the recognition of the Church of Scot- 267 land to share with the Church of England in the reserves.What was the fact? It seemed that, up to this period, no proceedings of any moment had taken place in the Legislature of Upper Canada on this subject; but that, in the Session of 1824, the subject was introduced by those members of the assembly who belonged to the Church of Scotland, they being only two in number, though there were other persons of other denominations, Members of that House of Assembly, who thought it a capital opportunity for overturning the exclusive right of the Church of England to the reserves. Those two members of the Scotch Church joined the various classes of Dissenters, and after some difficulty the House of Assembly passed five resolutions on the subject, the three first of which were introductory to the other two following and to these resolutions he begged their Lordships' attention. He quoted them as given in by Dr. Strachan, now Bishop of Toronto, in his "Observations on the provision made for the maintenance of a Protestant clergy;—4. Resolved, that if his late Majesty, when he graciously authorized an appropriation of land for the support and maintenance of a Protestant clergy in this province, did not contemplate a provision for the clergy of the Church of Scotland, that they ought to come now under his Majesty's most favourable consideration by being otherwise provided for. 5. Resolved, that an humble address be presented to his Majesty, praying that his Majesty will tie graciously pleased to direct such measures as will secure to the clergy of the Kirk of Scotland residing, or who may hereafter reside, in this province, such support and maintenance as his Majesty shall think proper.He could not but express his astonishment at the manner in which Mr. Poulett Thomson had ventured to describe those resolutions in his despatch. He would not go into the details of what took place after that. It seemed that the Ministers of that day did not recognise the right claimed for the church of Scotland. The answer given called upon them to exert themselves before they called for assistance. It was said, "If you help yourselves, we will help you." That was said in answer to the General Assembly in 1832, and he rather thought their Lordships would find that answer when the papers were laid before them. But that did not satisfy them, and when they found they were not to have a share in the re- 268 serves with the Church of England, they took another course. A vast number of sectarians were joined together to pull down the Church, and it seemed that this church of Scotland being unable to prove its right to share in the reserves, immediately turned round and tried to divert them to the reparation of the public roads and other secular purposes. Until the year 1831, the Assembly seemed to have been in the habit of making such motions as he had just read, but at the close of the Session of that year they agreed to address the Crown, praying for a settlement of the question by an Act of Parliament to authorize the sale of the reserves and the appropriation of the proceeds to the purposes of education, and erecting places of worship for various denominations. Now, it was very remarkable that the right hon. Gentleman, in stating what the House of Assembly did, cautiously abstained from giving any account of what the Legislative Council did. On the 16th of March, the very day on which the session closed, the Legislative Council addressed His Majesty, earnestly praying him to preserve the clergy reserves for the purposes for which they were designed, and to do all that was necessary to be done, not only for the safety of religion, but of the principles of the constitution under which they lived, affirming that the church for which the reserves were made was not only known to the constitution, but a part of the constitution itself. But of all that, Mr. Poulett Thomson took care not to inform the Imperial Parliament. In 1832 his Majesty directed the Lieutenant-governor of Upper Canada to send a message to both houses of the Legislature in that colony recommending them to reinvest the clergy reserves in his hands, and telling them at the same time that the sacred duties of his station—or, in other words, his coronation oath—compelled him not to sacrifice the interests of the Protestant churches, and giving them to understand that he hoped to find the means of assisting those interests distinct from retaining these reserves. Such was the nature of the message sent out by the Government of 1832, of which the noble Viscount was a prominent Member. The noble Marquess near him (Lansdowne) and the noble Lord, the Secretary for the Colonies, were also Members of that Government. They concurred with his late Majesty in protecting the rights of the Protestant churches in the colonies. 269 His Majesty undoubtedly spoke of both the Church of England and the church of Scotland as the Protestant churches; but that had very little to do with the present argument. The message, however, would of course be included in the returns. But it seemed that after this message the House of Assembly itself was more cautious, and did not for two or three years proceed in this matter; no attempt was made to destroy these reserves, or to apply them to the general purposes of the colony. One or two attempts were made to procure the re-investment of the reserves in the Crown, bills for that purpose being brought in by the Attorney-general, but not proceeded with. But in 1834, a bill for the sale of the clergy reserves for the purposes of education was brought in, and passed by a majority of 22 to 12. But what had occurred before this? M'Kenzie had been in England—he had triumphed in Downing-street, and he returned to Canada exulting in that triumph. [The Earl of Ripon: Without foundation.] Without foundation was it? M'Kenzie thought it a triumph, and the colony thought so too; but their Lordships would have that explained perhaps by and by. At all events, M'Kenzie persuaded the Government of that day to dismiss the Attorney-general and the Solicitor-general of Upper Canada, and why? Because they had said, that this traitor, who was known to be a traitor, who had spoken like a traitor, and had proved himself to be a traitor, as far as he possibly could by the seditious doctrines he had promulgated, ought not to sit in the House of Assembly. He was expelled from that House, not for sedition, but for a gross libel on that house; and the Attorney and Solicitor general had voted for his expulsion because he had proved himself unworthy of sitting in it by endeavouring to degrade it in the eyes of the people. He was re-elected, but the senate of Upper Canada proceeded in a more dignified manner than the English Parliament did in the case of Wilkes; they did not declare M'Kenzie to be ineligible, but they expelled him again. For this, when he came to this country, he induced the Government to dismiss them. [The Earl of Ripon: No.] Well, their Lordships would hear presently what the fact was. M'Kenzie went back, and was received in triumph in Canada, and in 1834, in consequence of this triumph, at the next dissolution great exertions were made by the 270 democratic classes, which were followed in the new Parliament by those measures which brought on the insurrection that took place. All the measures since 1832 had been measures for the support of religion passed by the House of Assembly, and yet their Lordships were told that the reverse was the case. In 1835 the Legislative Council—another bill having been introduced of the same nature as the former bills—addressed his late Majesty, and he would give their Lordships an extract from that address:—We look upon these allotments as the only resource whence the ministers of religion can ever derive public support in this colony. But, while we decline to take part in any measure which would deprive the present and future generations of advantages in their nature inestimable, and which we consider to be among the first and most sacred duties of a legislative body to insure and perpetuate, we nevertheless deeply regret that the questions which have been agitated, with respect to the clergy reserves, should continue unsettled; and we think it is, for many reasons, much to be desired that a speedy and final decision should take place of the questions which have arisen upon the effect of the statute referred to, and that it should be plainly, certainly, and firmly established to what specific objects the clergy reserves shall be permanently applied. Confiding freely in the wisdom and justice of your Majesty and of Parliament, we earnestly hope, that with as little delay as the subject may admit of, such an enactment may be passed as shall not leave any room for doubt or question in regard to the objects to which the proceeds of the clergy reserves are to be applied, and that having regard to the present condition and future welfare of this colony, and maturely considering whatever has been urged, or may be urged, in regard to these reserves, your Majesty and the Imperial Parliament will by some measure, which shall be final and unequivocal, make such an appropriation of them as shall appear to be most consistent with a due regard to religion, to the principles of our constitution, and to the permanent welfare and tranquillity of the province.That was the prayer of the Legislative Council of 1835; but that was unworthy of a place in the statement of Mr. Poulett Thomson. But that right hon. Gentleman in his despatch said, after reciting sundry resolutions—This recapitulation, from which your Lordship will perceive, that since the year 1826 the House of Assembly have, on fourteen different occasions, recorded their opinion, that the clergy reserves ought to be sold, and 271 the proceeds applied to education or general purposes.Fourteen different occasions! Why, six of them were during the republican Parliament elected in 1834, under the fugitive traitors M'Kenzie and Rolph, and the self-exiled Bidwell. The seventh was passed in the preceding Parliament, under the delirium caused by M'Kenzie's triumph; an eighth was subsequently set aside by an opposite vote, thus leaving six out of the fourteen, and these all passed before the message in 1833. He had already said, that Mr. Poulett Thomson hoped no obstacle would be opposed to the confirmation of these resolutions by her Majesty.Should it be otherwise," said he, "and the question should be again thrown back for decision here, I cannot foresee the consequences.Well, then, why should it be thrown back? There was no anxiety on the part of those who wished to support the church to throw it back. Sir George Arthur, in opening the Session in 1839 said, in reference to the settlement of this question,Should all your efforts for this purpose unhappily fail, it will then only remain for you to reinvest these reserves in the hands of the Crown, and to refer the appropriation of them to the Imperial Parliament, as a tribunal free from those local influences and excitements which may operate too powerfully here.It might be said, that this was only the authority of Sir George Arthur. Not so; he sent home a copy of his speech, and Lord Normanby, on the. 13th of April, 1839, acknowledging the despatch which contained that copy, distinctly expressed his approbation of it:—I have to convey to you my approval of the course which, in the peculiar circumstances of the province you adopted, with regard to your speech.Accordingly, under this express approbation of the Government at home, Sir G. Arthur procured the passing of the bill of last year, which, after providing for the sale of the reserved lands, enacted that the produce of the salesShould be paid into the hands of her Majesty's Receiver-general of the province, to be appropriated and applied by the Imperial Parliament for religious purposes.He need not tell their Lordships that 272 that was refused, and why? It was stated in Lord John Russell's instructions to Mr. Poulett Thomson, in December last, thatParliament delegated to the local legislature the right of appropriating the clergy reserves, and that the effect of the bill is to re-transfer the duty from the local legislative Parliament with a particular restriction. I am advised by the law officers of the Crown, that this is an unconstitutional proceeding. It is certainly unusual and inconvenient. Her Majesty cannot assume that Parliament will accept this delegated office, and if it should not be so accepted, the confirmation of the bill would be productive of serious prejudices, and of no substantial advantage.Well, but though the noble Lord, and though the Government did refuse to give the royal assent in December last year to the bill, which was reserved in the Session for the royal assent, yet it was found, that they were quite ready to give their assent to the present bill, which was admitted to be, in one part of it, a contravention of an act of the Imperial Parliament, and was in itself contrary to law; and the noble Lord had no hesitation in assuming that Parliament would not be reluctant in passing a new act to accommodate the colonial legislature, and to secure them in their usurpation. The noble Lord went on to say, in the same despatch—Besides, I cannot admit that there exist in this country greater facilities than in Upper Canada for the adjustment of this controversy; on the contrary, the provincial Legislature will bring to the decision of it an extent of accurate information as to the wants and general opinions of society in that country in which Parliament is unavoidably deficient.So that the noble Lord stated upon his own authority, in contradiction to the repeated, uniform, and constant authority of the Legislative Assembly of that colony, who had all along thought that the bill should be sent to this country, because it could be dealt with without the prejudices that prevailed there, that the bill was most likely to be properly disposed of in that colony itself, and not in the Imperial Parliament. He would now call their Lordships' attention to another document—a petition from the minister, elders, and members of the congregation of St. Andrew's church, Kingston, in connexion with the established church of Scotland, addressed to the Commons House of Assembly of Upper Canada, in provincial 273 Parliament assembled. The petition ran as follows:—That your petitioners, while they are happy to perceive that the attention of your hon. House is invited to the long-disputed question of the clergy reserves, would, in the words of his Excellency the Lieutenant-governor, beg to express their confidence in your honourable House, that 'by moderation and sound discretion, you will overcome the obstacles that have hitherto attended its discussion.'Your petitioners would not be understood as intending to convey any distrust in the wisdom and integrity of your honourable House, in submitting for your consideration whether the Imperial Parliament, by their entire removal from the conflicting interests and endless variety of opinions which have for so many years agitated the country and perplexed the provincial Legislature, in reference to the clergy reserves, are not qualified to explain their own act, and definitively to settle what is doubtful in the existing statute, without the danger of further disturbing the tranquillity of the province, or of occupying so much of the time of your honourable House in discussions and proceedings that must ultimately be referred to, and approved of by that august body.Your petitioners cannot forbear to express their apprehensions, that any means adopted by the provincial Legislature for the appropriation of the clergy reserves, however just and equitable in itself, would neither be so satisfactory nor so stable as a declaratory enactment on that subject, originated in and passed by the Imperial Parliament, who it may be trusted, in explaining the provisions of the Act, will be careful to preserve our 'constitution inviolate.'Wherefore, your petitioners pray, that your honourable House will be pleased to do in the premises as your honourable House in its wisdom may deem meet.And your petitioners, as in duty bound, will ever pray.JOHN MACHAR, Minister,And 213 others, Elders and Members of the Congregation of St. Andrew's Church, Kingston, in connexion with the Church of Scotland.Kingston, Nov. 23, 1836.He repeated, therefore, that their Lordships had very high authority indeed, for believing that the better and fairer course would be, that a question of this kind should be decided by the local Legislature. He abstained, however, from entering upon any further details, which would be more properly brought under their Lordships' consideration, when the motion of the most rev. Prelate came before them, and he should now, rejoicing that 274 no opposition would be offered to the motion with which he should conclude, move an address to the Crown that there be laid on the Table "such part of a despatch from Sir Peregrine Maitland to Mr. Huskisson of the 15th of December, 1827, as relates to the clergy reserves in Canada, with various other papers.
§ Viscount Melbourne
said, that although unquestionably he had informed the House that no objection existed to the production of the papers for which the right rev. Prelate had moved, yet he was far from complaining of the right rev. Prelate for calling the attention of their Lordships to the subject to which his motion related, considering the great importance of the question itself, and considering that it was in the power of the House by one single vote to bring about most important results; and therefore he could not find fault with the right rev. Prelate for calling their Lordships' attention to the question, since by turning their attention to it, they would be best enabled to make themselves acquainted with the subject, and thus come to an ultimate decision with a full and accurate knowledge of its bearings and relations. He entirely agreed with the right rev. Prelate in thinking, that it was unfitting and unbecoming to prejudice the discussion and consideration of this question by adopting the lone of alarm, still less by employing the language of intimidation. At the same time, he trusted, that their Lordships would approach the consideration of this subject, weighing fully in their minds the consequences to which their decision might lead, and fully considering both the circumstances of the country for which they had to legislate, and the real state and nature of the question upon which they had to decide. But, although he did not in the slightest degree complain of the course which the right rev. Prelate had pursued in expatiating upon the topics which had formed the subject matter of his motion, and in entering into matter connected with it, although he did not mean to say, that in doing so, the right rev. Prelate had done more than was his duty, or convenient to their Lordships, he could not extend the same degree of indulgence to the manner in which the right rev. Prelate had brought forward his motion, to the tone in which he had indulged, or to the bitterness and acrimony which had broken loose from his tongue. 275 To bring forward the motion with which ha had concluded, formed a task not unfitting for the right rev. Prelate, but the tone of asperity which marked his observations, did not become either his high and reverend calling, the station in which he was placed, or the assembly in which he was speaking. He could not help thinking, that in much of the right rev. Prelate's reference to the language of the Governor-general, there was, if not the suggestio falsi, at least a good deal of the suppressio veri. The right rev. Prelate had not entered upon the subject at any length, but if he had, it could hardly have justified the exhibition of that bitterness and acrimony, which neither became the right rev. Prelate, nor the place in which he delivered himself of it. At the same time, he begged leave to say, that there was not the slightest ground or foundation for the observations which had been made on the letter of his right hon. Friend. His right hon Friend said, "I will not believe, that any successful opposition to the confirmation of this bill by her Majesty will be allowed to prevail." But in saying so, his right hon. Friend meant nothing more than to express his opinion of the importance of the subject, adding a strong hope, that it would be considered in Parliament with that anxiety to do what was right, and to take those measures which were necessary for the prosperity of her Majesty's dominions in that part of the globe, and which to the wisdom of Parliament might seem fitting; and when his right hon. Friend went on to say, that since the year 1823, the representatives of the people had refused to distribute the funds accruing from the reserved lands for any but the purposes of general education, or the general purposes of the state, his right hon. Friend stated nothing more than was perfectly correct. The right rev. Prelate said, that the Governor-general had referred only to the opinions of the representatives of the people, and not to those expressed by the Legislative Council. But his right hon. Friend said, that he had only referred to the opinions of the representatives of the people. His right hon. Friend referred to a bill for applying the reserves to the purposes of general education, which in 1835 passed in the Legislative Assembly by a majority of thirty-nine to seven. This bill having been sent up to the Legislative Council, that House, instead of proceeding with it, 276 adopted a series of resolutions, stating the various claims made on the clergy reserves, and praying the Imperial Parliament to deal with the question. This was the statement made by his right hon. Friend himself. The right rev. Prelate had abstained from going into the whole merits of the question, which, as he had said himself, it would be more fitting to discuss upon the motion of which notice had been given by the most rev. Prelate near him, and upon that occasion, when the papers for which the right rev. Prelate had moved had been laid upon the table, the merits of this question might be discussed more in extenso, and their Lordships would be able to enter upon the consideration of its details with greater accuracy and precision. It appeared to him, however, that on these papers as they stood his right hon. Friend the Governor-general was justified in saying, that ever since 1823–4 the constant and perpetual expression of the opinion of the representatives of the people in that country had been against the application of the clergy reserves to any other purposes than those of general education and the general improvement of the province. That was said to be unquestionably the popular opinion in Upper Canada. The right rev. Prelate had found great fault with his right hon. Friend for having said that this subject was a source of great heartburnings and discontent in the province, and the right rev. Prelate said, that this was entirely contradictory to the tenour of the despatches sent home by Sir F. Head, which amounted to something of this kind—that the agitation of the question did not threaten the immediate tranquillity of the province. But there was nothing inconsistent in these two statements. The question might excite discontent in the minds of men, and yet not threaten the peace of the province, and still less throw any obstacle in the way of a settlement. He should hope, however, that whatever view their Lordships might be inclined to take on this question, they would come to a consideration of this subject with a proper feeling of its importance, and with a full knowledge of its nature and extent. He had hoped that they would come to a consideration of it without anything of bitterness, acrimeny, asperity, or party feeling; but he owned that his hopes on that subject were very considerably diminished 277 when he found that on the very first occasion which presented itself a clergyman of the Church of England—a dignitary of the Church of England, unprovoked, unexcited by debate, in the very outset and beginning of the discussion, exhibited an asperity, a virulence and a spirit of attack which could hardly be justified by the warmth and violence to which a debate might give rise. He trusted, however, that their Lordships would not allow themselves to be influenced by the tone which the right rev. Prelate had adopted, but that they would approach the consideration of the despatch of the Governor-general with that coolness, that gravity, and that disposition to do what was right, which became the situation which their Lordships filled as legislators for this great country.
§ The Duke of Wellington
was disposed to approach this subject in the spirit which had been recommended by the noble Viscount who bad preceded him, but he confessed he was not surprised that some feeling should have been excited by what had passed on this subject, not only by what had appeared on the face of these papers, but by what had passed in that House of Parliament, and also in another place. It appeared that this act of the Canadian Parliament was suggested by the right hon. Gentleman the Governor-general of Canada, who had recently gone out there to take upon himself the government of that province. It appeared also, that this act of the Parliament of Upper Canada, of which he should say but little, as it would come hereafter under the consideration of their Lordships, although it was suggested by the right hon. Gentleman to the Parliament of Canada, did not meet with the entire approbation of the Secretary of State for the Colonies, at least it appeared that the noble Lord would not have suggested that particular mode of legislation and this particular act of Parliament. The suggestion, then, came as the suggestion of the Governor-general himself, not that of his employer, the Secretary of State, and the suggestion had given rise to this act of the Parliament of Canada, upon which the Imperial Parliament was called upon to give an opinion, by addressing the Crown against it, or by giving none, to allow the act to pass into a law. Now, it might so happen, as had been suggested by the noble Viscount, that the right rev. 278 Prelate had referred to papers which had been moved for. He (the Duke of Wellington) might have seen some of them in the course of his official duty, but as he had no copies, he could not compare them, and under these circumstances he should refrain from making any observations on them. He must, however, say, that if the right rev. Prelate had any knowledge of these papers, it was not extraordinary, that having called for some of them, he should have pointed out the bearing of those papers and their relation to the conduct of the Governor-general, who appeared to be the suggester of this act of Parliament. Now, he should say no more of this act of the Parliament of Upper Canada than this, that one of its objects certainly was, to repeal and alter an act of the British Parliament, and this act, as he had said more than once, was suggested by the Governor-general. He really must say, that he was not astonished at the feeling which had been excited, and he could not help thinking that the right rev. Prelate, who had a knowledge of the contents of these papers, would not in moving far their production have been justified if he had not let the House know what he had become acquainted with, having a regard to what might pass in that House hereafter, so that their Lordships might then come down to the House and give their votes on the motion of the most rev. Prelate according to the best of their judgment.
The Bishop of London
perfectly agreed with the noble Viscount, in thinking that it was desirable to enter upon a consideration of this question with that calmness and coolness which befitted a legislative assembly, but he must be permitted to say that the noble Viscount had not much reason to be surprised, perhaps he might say not much reason to be dissatisfied, if he found that others might not approach this question with the same degree of philosophic indifference with which the noble Viscount himself treated it. The question raised was neither more nor less than this—whether they should consent to the spoliation of the Church of England, in one of our distant provinces, by depriving it of nearly the whole of its property. If he were stopped by a highwayman, who put a pistol to his head and took away his purse, which might contain his all, and he were then recommended to preserve a philosophic calmness and in- 279 difference, he should think that his plunderer made an unreasonable request. There were reasons why the prelates of the Church should feel sensitive as to the conduct of the right hon. Gentleman, whom the noble Duke had so properly and so strongly pointed out as the suggester of this measure. It was not the Government, but the Governor-general of Canada, to whom the act was to be attributed. They were the more strongly moved by indignation at what had passed, when it was recollected that at the very same time when the Governor-general proposed this alienation of the property of the Protestant Church, he recommended that a bill should be introduced for the purpose of vesting in the college of St. Sulpice, at Montreal, a small community of monks, property not less in value than 500,000l., nearly the value of the property, of which it was now proposed to deprive the church in Canada, and much more than double its amount if this bill should pass into a law. The right hon. Gentleman proposed that a bill should be introduced to give this vast property to these monks, although he had been informed, in a despatch from the Secretary of State, that they had no legal right to the property, and although he had been instructed to take legal measures for the purpose of recovering it for the use of the Government. It could not then, be wondered at that, looking on this side of the picture and on that, a feeling should exist that there prevailed in Canada an injurious spirit of hostility to the Established Church.
The Earl of Haddington
rose only to advert in a very few words to the interest which, in a certain view of it, the Established Church of Scotland might be supposed to have in this question. If her Majesty's Government should succeed in establishing the opinions which they entertained, and in negativing the motion of the most rev. Primate, there was undoubtedly an end of the question. If, on the other hand, their Lordships should agree to the motion of the most rev. Prelate, and present an address to her Majesty, praying her not to give the Royal assent to the act relating to the clergy reserves, then a settlement of the question would become necessary. He hoped that their Lordships would be of opinion that the Established Church of Scotland would put forward no claims to 280 which she did not conceive she was fully entitled. The Scotch clergy considered that the term "Protestant" clergy included those of the Established Church of Scotland, as well as those of the Church of England. They considered that if it had been intended to confine the clergy reserves exclusively to the Church of England, a form of words would have been used, expressly excluding the other Established Church of Britain, which would have left no doubt on the subject. The whole question depended, he conceived, on the legal import of the words "the Protestant clergy;" and in the event of the most rev. Prelate succeeding in the motion which he would have to make to their Lordships, it would be necessary, as a matter of justice, that their Lordships should settle the legal import of those words, and whether they meant simply the Church of England, whether they meant the Churches of England and Scotland, or whether the phrase "Protestant clergy" extended still further to the sectaries who had ministers in Canada. He had no opinion whatever on the point; it would be very presumptuous in him to give an opinion, only he would say he had always understood (but he spoke in the hearing of the noble and learned Lord on the woolsack, who was able to set him right if he were in the wrong), that the word "clergy" in an Act of Parliament, was confined to the clergy of an Established Church. Most unquestionably he was not influenced in saying these few words by any feeling but this—that there was a great population of his countrymen in Upper Canada; that he was anxious that justice should be done to them in the most important matter in which any human being could claim to have justice done to him—namely, that he should have afforded to him the means of religious instruction. If, therefore, the clergy of the Scottish Church were by law entitled to any share in those clergy reserves, he trusted it would not be withheld from them. If they had not the right in law, some other means must be found to afford religious instruction to the numerous natives of Scotland who inhabited the colony.
The Archbishop of Canterbury
entirely agreed with the noble Earl who had just sat down, in the expediency of determining this question, which had been decided in various ways by different persons, It had 281 not yet been settled either by Parliamentary or by judicial authority, and he wished extremely in any settlement of the question, that the respective rights of the several parties who claimed a share in this property should be settled by the highest judicial authority in this country. He thought this was necessary for the ends of justice, whatever might be their future proceedings with respect to the measure which was now laid upon their Table. When their Lordships had settled whether they would assent to the measure or not, the proper time would have come for considering what ought to be done for that Church in which the noble Earl very naturally felt so strenuous an interest, which had so many of its members in Canada for whom some provision had already been made by Parliament, and of which certainly it was not his (the Archbishop of Canterbury's) disposition or feeling to speak in any terms but those of respect. It certainly appeared to him to be highly necessary this question of right should be settled. He had a decided opinion on the subject; he had no difficulty in saying that he thought the Church of Scotland had no right to participate in the clergy reserves under the act, and he felt still more strongly that the clergy of other denominations who had long ministered in the colony had no right at all. No legal opinion had ever been given in favour of their claim; it rested solely on the demand they had thought proper to set up, following the example of the Church of Scotland, after the right of the Church of England had remained undisturbed for thirty years.
said, the notice given by the right rev. Prelate to move that certain questions be proposed to the judges referred only to certain parts of the bill of the legislature of Upper Canada now on the table. Now, the point on which the most rev. Prelate had just addressed the House was by no means necessarily connected with that bill—he meant the question, whether, under the act 31 George 3rd., the clergy of the church of Scotland were to be included in the term "Protestant clergy," as well as those of the Church of England. Under the circumstances, he thought it was not too much to ask the right rev. Prelate to lay on the table on Thursday the specific questions which he was to propose to the House, on Friday, should be addressed to 282 the judges. In point of fact, nearly the whole question depended on the manner in which they might be put, and he thought that their Lordships should be allowed at least 24 hours for considering them. He wished to reserve his opinion on the subject, important as it was, to the last moment, and, therefore, he would say nothing on the general question which had been opened by the right rev. Prelate. But he wished to address one question to the noble Viscount, which he hoped would be answered. He thought it a matter of some importance that their Lordships should understand among what religious denominations of Christians it was meant that the funds should be divided. It was said, among all denominations that were now recognised by the law of the province, and he wished to know who these were?
§ Viscount Melbourne
replied, all sects would be included that were mentioned or recognized in certain acts of the colonial legislature, which acts would be laid upon the table.
The Archbishop of Canterbury
wished to explain that what he had said had no reference whatever to any motion that might be made by the right rev. Prelate, but he had thought it right to give an answer to what had fallen from the noble Earl. If it should be their Lordships' pleasure to accede to the motion he would have the honour of making on Monday, the 13th of April, he was inclined to think it would be the duty of Government to ascertain the right of the several parties who claimed an interest in the reserves, before they proceeded to legislate, that they might proceed upon the basis of justice to all parties.
The Bishop of Exeter
thought that nothing could be fairer than what the noble Baron, who had last addressed their Lordships had suggested, that the questions to be proposed to the judges should be placed before their Lordships at least 24 hours before the motion was made. He would tell the House frankly why he was not at present prepared to state them. He wished very particularly, before announcing them, to communicate with a noble and learned Lord whose present state of health prevented him from attending that House, and who had an especial claim to be consulted, inasmuch as communications on this subject had already passed between them. He could not say positively, but he believed that the construction of the 283 term "Protestant clergy," would be one of the points embraced in the questions. If he proceeded with his motion on Friday, he would give full information as to the terms of the questions on Thursday; but, at all events, he would not proceed without previously giving full information. He wished to mention, that, when he spoke of Mr. M'Kenzie's triumph, in the observations he had already made to their Lordships, he was not aware that the noble Earl (Ripon) had given some explanation last year on that matter. He would now, with their Lordships' permission, advert to some remarks which had fallen from the noble Viscount (Melbourne.) The noble Viscount had taken him to task for the tone in which he had addressed their Lordships. He did not mean to enter into any justification of that tone, but he must say, that never yet was a human being so totally ignorant—the noble Viscount would not be surprised at that expression from him, and would forgive him for using it—of the grounds on which he (the Bishop of Exeter) rested his case. The noble Viscount had the confidence to tell their Lordships that he made this charge upon the authority of papers of which he alone was in possession, at least which were not generally known, and he had said that he charged Mr. Poulett Thomson with wilful misstatement. He (the Bishop of Exeter) had disclaimed such an intention; he meant it sincerely, and he was surprised that the noble Viscount should not have understood him as disclaiming such a charge against that right hon. person. His authority for the statement he had made was a paper which the noble Viscount had laid upon the table—he meant the letter of the right hon. Gentleman himself, and never had he heard, even from the noble Viscount, who had so often astonished their Lordships by his declarations of ignorance, more especially Ins ignorance of colonial policy—never had he been so much astonished as at the declaration which he had heard from the noble Viscount o-night. He was quite sure the noble viscount had never read the despatch of Mr. P. Thomson, or he never would have dared to make the statement he had made; but without reading the despatch, the noble Viscount had had the confidence to State that the right hon. Gentleman proved throughout his despatch that ever since the year 1823 or 1824, the house of Assembly had maintained a constant, per- 284 petual, and universal protest against appropriating the clergy reserves to any other than general purposes, or those of education. He re-affirmed in the teeth of the noble Viscount, the assertion that he had made,—that the right hon. Gentleman contradicted himself, and he entreated the noble Viscount's attention for a few moments, while he detailed the facts on which he rested his justification for having said so. The right hon. Gentleman asserted that ever since 1823 or 1824 the House of Assembly had refused to grant the clergy reserves for any purposes but those of education or general improvement, rejecting all proposals to apply them to the support of religion. Now, according to the despatch of Mr. P. Thomson himself, in the session of 1836–7, a resolution was adopted in the assembly, by thirty-five to twenty-one,That it is desirable that the lands commonly called clergy reserves, and the proceeds arising from the sale thereof, be appropriated for the promotion of the religious or moral instruction of the people throughout this province.
§ [Viscount Melbourne
Religious and moral instruction.] Oh! the noble Viscount was going to special plead on the phrase instruction. He would remind the noble Viscount that the term "religious instruction" was the point on which the whole discussions respecting the property of the Church of Ireland had turned. [Viscount Melbourne: He meant education.] What Mr. Thomson meant they had nothing whatever to do with. The noble Viscount knew what the assembly meant. Mr. Thomson stated,That this resolution was communicated, for concurrence, to the Legislative Council, who, in reply, stated, that if by 'moral instruction' was meant nothing distinct from, or independent of, religion, they would be ready to concur in it, and that they would be ready to go any reasonable length in meeting the wishes of the other branches of the legislature, keeping in view the necessity of making provision for the religious instruction of the people, and the maintenance of public worship.In 1837–8, a resolution was adopted in the Assembly, by a majority of twenty-one to seventeen, for re-investing the reserves in the Crown, "for the support and maintenance of the Christian religion within the province;" and a bill for that purpose was brought in. What would the noble Viscount say to this? There 285 was no room for special pleading here. The noble Viscount had studied in a special pleader's office, and had shown that he had profited by his legal education; but how could he, with all his ingenuity, get rid of the phrase "Christian religion." In 1839, the Assembly, according to Mr. Thomson, adopted a bill founded upon the following resolutions:—1st. To pay to each clergyman of the churches of England and Scotland, resident, according to the first resolution, an annual stipend not to exceed 100l. 2nd. To pay to the Wesleyan Methodist church, in Canada, in connexion with the English conference, or their proper officer, a sum not to exceed 100l. per annum, for as many ministers of that church as there shall be lots granted and conveyed in each circuit, according to the second resolution. 3rd. The surplus of interest, not otherwise disposed of, to be expended in aid of the erection of places of public worship throughout the province generally.Thus, in three instances successively, the Assembly, upon Mr. Thomson's own showing, had done that which he declared they had constantly and regularly refused to do. What happened afterwards? In that very year the Assembly concurred with the Legislative Council in passing that bill, which was not laid on their Lordships' Table, because Government did not choose to give it their sanction, but which left the disposal of the reserves to the Imperial Parliament, with the restriction of appropriating them to religious purposes. Ever since the year 1836, the Colonial Assembly had practised that which Mr. P. Thomson said they had constantly refused to do. He said, therefore, that that right hon. person had mis-stated the fact, and also that the noble Viscount had mis-stated the fact, inasmuch as he said, that the right hon. Gentleman had made out what he had failed to make out.
wished to say a few words, as he was afraid that what had fallen from him might be erroneously construed into an approval of the proposal for consulting the judges. He did not mean to give any opinion on the propriety of that course. He apprehended that questions ought to be put to the judges where it was necessary for their Lordships to have legal advice for their guidance in legislative proceedings. But that was not the present case. It was now the duty of the Ministers of the Crown to go to their legal advisers, and ask their opinion as to the legality of the measure to which they 286 were called upon to give their assent, but he apprehended it was not their Lordships' duty to give advice to the Crown as to the legality of a measure which came before them under such circumstances. It was their duty, if they thought it necessary to advise the Crown on the subject of the justice or expediency of the measure, but the question of its legality ought, he considered, to rest with the legal advisers of the Crown. He threw this out for the consideration of the right reverend prelate and the House, because he would not have the right reverend prelate proceed, in making his motion, on the erroneous supposition that any questions he might wish to have answered were to be proposed by the House as a matter of course to the judges.
The Bishop of Exeter
said, he would be sorry to anticipate the discussion on his motion, and he thought it would be more convenient to enter into those remarks when the question was before the House.
§ The Lord Chancellor
observed, that, on Friday next there would be only three judges in town, the rest being on the circuit. With respect to the despatch to Lord Bathurst, containing the opinions of the legal advisers of the Crown in Canada, for which the right reverend Prelate had asked, it was not the usual course to produce such opinions, and it might lead to great inconvenience if the rule were departed from.
The Bishop of Exeter
thought that the paper could not, in common justice, be refused. The whole question arose from the notoriety which had been given to the opinions of the law advisers of the Crown, given in 1819. Since the latter had been made public, he could not see why the opinions of the legal advisers of the Crown in Canada should not be produced, as well as those of its advisers in England.
§ Address agreed to.