§ The Lord Chancellor moved that the learned judges do now deliver their opinion upon the several questions referred to them by their Lordships upon the subject of the Clergy Reserves in Canada.
Chief Justice Tindalstated, that on the part of her Majesty's Judges, he had the honour to represent to their Lordships that all the Judges of England, with the exception of Lord Denman and Lord Abinger, had met together in Sergeants' Inn, for the purpose of taking into consideration the several questions which their Lordships had been pleased to propose to them; and that after due discussion and consideration of the several subjects involved in these questions, they had agreed unanimously to the answers to be returned to them. Their Lordships' questions were as follow:— 1157
1. Whether the words 'a Protestant clergy' in the 31 George 3rd, c. 31, (sec. 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? 2. Whether the effect of the 41st section of the 31 George 3rd, c. 31, be 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 the Legislative Council and Assembly of the province of Upper Canada, having in an act 'to provide for the sale of the clergy reserves, and for the distribution of the proceeds thereof,' enacted that it should be lawful for the governor, by and with the advice of the Executive Council, to sell, alienate, and convey in fee-simple, all or any of the said clergy reserves; and having further enacted, in the same act, that the proceeds of all past sales of such reserves which have been or may be invested under the authority of the act of the Imperial Parliament passed in the seventh and eighth years of the reign of his late Majesty King George 4th, intituled 'An act to authorise the sale of part of the clergy reserves in the provinces of Upper and Lower Canada,' shall he subject to such orders and directions as the governor in council shall make and establish for investing in any securities within the province of Upper Canada the amount now funded in England, together with the proceeds hereafter to be received from the sales of all or any of the said reserves, or any part thereof, did, in making such enactments, or either of them, exceed their lawful authority?To the first question, the Judges answered—We are all of opinion that the words 'a Protestant clergy,' in the 31st George 3rd, c. 31, are large enough to include, and that they do include, other clergy than the clergy of the Church of England.And when their Lordships asked, "If any other, what other?" the Judges answered, "The clergy of the Church of Scotland." To the second question, the Judges said,—We are all of opinion, that the effect of the 41st section of the statute is prospective only; and that the power thereby given to the Legislative Council and Assembly of either province cannot be extended to affect lands which have been already allotted and appropriated under former grants.In answer to the last question, the Judges said,— 1158We all agree in opinion that the Legislative Council and Assembly of Upper Canada have exceeded their authority in passing an act 'to provide for the sale of the clergy reserves, and for the distribution of the proceeds thereof,' in respect of both the enactments specified in your Lordships' question; and that the sales which have been, or may be, effected in consequence, are contrary to the provisions of the statute of George 1st, and are therefore void.