§ Order of the Day for the Second Reading read.
§ The DUKE of NEWCASTLE
My Lords, in moving the Second Reading of the Canada Clergy Reserves Bill, I have some doubt and hesitation as to whether or not I ought to trespass on the attention of your Lordships at any great length, remembering that we have had already two discussions on this question, one of them at considerable length; but inasmuch as there are now present many noble Lords who were absent on that occasion, and as I cannot but believe there are some of your Lordships who have not studied the whole of this question of the Canada clergy reserves to such an extent as would enable you, in my belief, to arrive at a satisfactory conclusion in reference to the Bill now before your Lordships, I hope I may be excused if I venture to trespass upon your Lordships' time, although it shall be as shortly as possible, in order to explain to you the history of this question from its first commencement; to show how in my opinion, but one view has been taken of this question by successive Governments; and, lastly, to point out the reasons and arguments which I think will induce your Lordships to assent to the measure which Her Majesty's Government proposes. My Lords, I am afraid that your Lordships 235 will be alarmed at anything like an historical statement on this occasion; yet, I apprehend, without it it would be impossible for you to appreciate the merits of this question, or to understand our present position with respect to it. My Lords, I may say so long ago as the year 1776 an Act was passed—called the First Constitutional Act of what was then denominated the province of Quebec—in which after recognising the rights of His Majesty's recently acquired Roman Catholic subjects, a clause was introduced which provided that His Majesty might make provision out of the receipt of his accustomed dues and rights for the encouragement of the Protestant religion and the maintenance of the Protestant clergy. It would appear, my Lords, that no action was taken immediately on this provision; at least I cannot discover that anything was done; but in the year 1791 a message was sent from the King to both Houses of Parliament, suggesting that they should provide for those objects by making an appropriation of lands; and in the course of that year, 1791, Mr. Pitt introduced a measure into the House of Commons, which became law, and by which one-seventh of the waste lands in the colony were appropriated for the maintenance of the Protestant clergy. My Lords, these so-called clergy reserves continued for a period of fifty years, notwithstanding frequent objections were raised within the colony, and, subject on one occasion at least to considerable alterations at the hands of Parliament, they continued until the Act of 1840 passed. A provision was introduced into the Act of 1791, which provided that the Provincial Legislature might have power to alter and repeal the provisions of that Act. I mention this circumstance thus early in my statement, because upon it will hinge a great many of the subsequent transactions, and to a certain extent, though not by any means exclusively so, the arguments which I am about to adduce to the House in reference to the present measure. The power thus given to the Provincial Legislature by the Act of 1791, has always, until a comparatively recent date, been considered to be unlimited. Now, until the year 1817 this Act remained without any open hostility on the part of the population of Canada; in fact, the Act was nearly inoperative, the Protestant clergy deriving little if any advantage from it; but in 1817 I find the first open demonstration of hostility to the system of the clergy reserves, in the shape of a Motion for 236 the purpose of alienating one-half of the reserves so made. In 1819, two years subsequently, a new circumstance took place. Then, for the first time, a claim was put forward, small indeed in itself, but nevertheless a substantive claim, on the part of the Presbyterians, for a participation in those reserves, hitherto considered the exclusive right of the episcopalian clergy of the Church of England. Upon that claim being made, the Government of the day thought it their duty to place the matter in the hands of the law officers of the Crown, of whom my noble and learned Friend whom I see opposite (Lord Lyndhurst), being then the Solicitor General of the Crown, was one; and the noble and learned Lord did, with his Colleague, give an opinion on the case so submitted to them, by which it was established that the Presbyterian Church, coming under the denomination of Protestant clergy, were entitled to a share of the reserves. In this same year—an important year, as it concerned this matter—the House of Assembly appears to have become more jealous of these reserves, and various inquiries were made of the then Government as to their amount, and the circumstances of their position. From this time, for a period of twenty years, a constant struggle appears to have gone on between the clergy, or rather the members, of the Church of England on the one hand, and the members of the Church of Scotland on the other; for the opinion of the law officers in favour of the Presbyterians, to which I have referred, having never been carried into effect during the whole of that period of twenty years, the Episcopalians had maintained exclusively the enjoyment of those reserves. My Lords, I find that up to this period of 1824 the clergy reserves, as I stated just now, of an anterior date, were of little comparative value, and were almost entirely absorbed in the expenses attending their management. I find that in 1819, when that opinion was taken, the available fund amounted to only 700l.;and they dwindled in subsequent years to a very considerable extent, until in 1822 they only produced 150l. In consequence of this continued struggle between the rival Churches, and of the comparative valuelessness of this enormous amount of property, a proposal was introduced for the sale of those reserves. That proposal, accompanied by other suggestions which wore not so successful, was carried out by a measure introduced by Mr. Wilmot Horton in 1827, 237 and supported by the noble Earl opposite (the Earl of Derby), then a Member of the House of Commons, who stated on that occasion that the facts which he had observed during his then recent tour in the United States and in Canada had conclusively established that there was there a universal opinion against the maintenance of the clergy reserves. I venture to hope, when I quote the words used by the noble Earl on that occasion, that he will not suppose that I do so for party purposes. I only do so simply because they show the universal feeling which then prevailed, and which I have reason to believe has continued to prevail, to a very considerable extent in regard to this question to this day. I find the noble Earl said in 1827—The short acquaintance he had recently had with the provinces of Canada enabled him to state, that whatever might be the differences of political and party feeling in that country—and there was no place where party feeling ran higher—no person entertained a difference of opinion as to the pernicious tendency of the clergy reserves. When Mr. Pitt brought forward the Canada Bill in 1791, he distinctly specified that the arrangement then made must be subject to such modifications as might afterwards he deemed expedient. The experience of thirty-five years had demonstrated, not only the inconvenience, but the absolute mischief, which resulted from that arrangement. The appropriation of clergy reserves in Canada had operated as a serious obstacle to agricultural improvement. The making of roads, an object of so much importance to the colony, was checked by this arrangement; for, as every man was obliged to make roads through his own estate, where these reserves occurred, the progress of road-making was either arrested, or the burden thrown upon the owner of the contiguous land.…In giving his unqualified approbation to the measure proposed, he must be understood as being perfectly aware of the nature of the property allotted to the Church, and of being as sensible as any man of the monstrous absurdity of attempting to support what was called the Established Church, but which, in fact, never would be established. The present sale he understood to be for the improvement of the remainder of the lands given to the Church; and as such it had his approval. It left, too, the question respecting the propriety of such grant precisely where it was; for the Act of 1791, under the authority of which it was made, remained just as open to revision or amendment after that sale as it was before."—[2 Hansard, xvi. 586.]In the year 1826 an Address from the House of Assembly of Canada was sent to this country, requesting that the clergy reserves might be appropriated for the purposes of education, and that no more waste lands should be allotted for the purposes of the clergy. A similar Address was presented in the year 1829, and I need not say without effect. A new party now 238 appears upon the scene. I allude to the period when the members of the Scottish Church first came in for a participation in this fund. In 1828 the Wesleyan Methodists first put in a claim, and they stated their reasons to be, that while no other Protestant Dissenters had a right to participate in those reserves, yet that they had a special claim; and although the Government of the day did not acquiesce in that claim, so far as the clergy reserves were concerned, yet their acquiescence in the then state of things appears to have been ascertained by a money contribution, from what source derived I am not certain, but which appears to have been satisfactory. I wish at this period of my statement to point out to your Lordships the successive progresses of public opinion in reference to this matter—how the desire of the Canadian people being neglected led on to fresh demands, and how upon each successive refusal and neglect to agree to those demands, fresh claims were made in each subsequent year. In 1824 the demand was that the clergy reserves should be no longer appropriated to the members of the Church of England, but should be equally divided among all religious denominations in proportion to their respective numbers in the colony; but in 1826 the application was that the clergy reserves should no longer be appropriated to the purposes of the various denominations, but to the purposes of education and public improvement; and in 1828, the first two demands being neglected, the, agitation took the shape of a demand that the clergy reserves should be entirely appropriated to secular purposes. I find that in 1831—this struggle having been constantly proceeding, the House of Assembly on the one hand demanding, in one form or other, material changes in respect to the clergy reserves, and the Legislative Council, on the other, invariably resisting those changes—an alteration took place, and the House of Assembly, failing to attain its objects through the instrumentality of its own Legislature, applied to the Imperial Government, with the view to procure these objects. It is singular enough that in this year, when they came to that determination, the Government at home, it appears, partly resolved on the abandonment of the clergy reserves, not, seemingly, in deference to the opinion of the Legislature of Canada, but in consequence of a Committee of the House of Commons which sat in 1828, and which, having recommended 239 such a measure, had made an important report on this and other subjects. In consequence of that report it appears that the Imperial Government proposed that a measure should be passed to enact that those reserves should revert to the domains of the Crown. But in what form was it proposed? I find that, not merely on that occasion, but on every other, every successive Colonial Secretary appears to have looked on this question as one which was to be legislated upon, not by the Imperial Parliament, but by the Colonial Legislature. Did the Secretary at that time (Lord Goderich), having advised the total abandonment of the clergy reserves, proceed to introduce a measure into this House for that purpose? By no means. In a despatch dated 21st November, 1831, addressed to Sir John Colborne, Lord Goderich says—In order to accomplish effectually the designs which I have explained in the despatch already referred to, it will be necessary that so much of the statute 31 Geo. III., c. 31, as relates to the allotment and appropriation of lands for the support of the Protestant clergy within the province of Upper Canada, should be repealed by an Act to be passed by the Council and Assembly in exercise of the authority committed to them for that purpose by the 41st section of the Act. The Bill if so passed must be accompanied by an address from the Legislative Council and Assembly, desiring that it may be 'transmitted to England without delay, for the purpose of being laid before Parliament previously to the signification of His Majesty's assent thereto.' A simple repeal of this part of the Act of 1791 would give birth to some questions of an embarrassing nature, the discussion of which it is very desirable to preclude. The questions which I anticipate would be, 1st, whether the reserves already made would vest in His Majesty absolutely, or would be held by him upon any trust for the benefit of the Protestant clergy; 2dly, whether the leases granted by the corporation for managing the reserves would be still subsisting; 3dly, whether the rent reserved on those leases would be payable to His Majesty or to the corporation; 4thly, whether the money already raised by sales, under the Act of 1827, would remain applicable or not to the purposes expressly declared by that statute. It might be suggested, as a further doubt, whether the corporation would continue in existence, and whether the powers of sale given by the Act of 1827 were to be exercised any further. The solution of those questions is, however, obvious; the corporation could not survive the extinction of the object for which it was erected; the power of sale could not be exercised after the subject of sale, viz., the clergy reserves, had ceased as such to exist. To meet, however, still more effectually the two last-mentioned questions, you will, as soon as the Act shall have been introduced into the Assembly, intimate to the clergy corporation that it is the express desire of His Majesty's Government, that until the Bill shall have finally passed into a law, or shall have been finally rejected, they do abstain from 240 granting any more leases of the clergy reserves; I cannot doubt their ready compliance, and am most reluctant to reason, even hypothetically, on the contrary supposition. But as it will be necessary to prevent improvident leases, which, in the haste and excitement of the moment, might be made, you will, in the unfortunate contingency of the corporation persisting in making them, direct the Attorney General to take such measures as may be best adapted to bring to trial the validity of the charter itself. I apprehend that the result must be to ascertain that it is void in point of strict law. But it is impossible to deprecate such a controversy too earnestly, or to contemplate it at all, except as an extreme remedy in a case of extreme importance. Whenever the Act shall have been finally passed, the continued existence of the charter would be of no practical importance, though it would be on the whole desirable that the charter should be then surrendered. With regard to the continuance of the power of sale under the statute 7 & 8 Geo. IV., c. 62, you will immediately signify to the officers employed under that statute His Majesty's commands that they do abstain from acting any further in execution of it after the 30th June, 1832, and that during the half-year from January 1st to that date the sales to be made should not exceed in number of acres the number actually sold in the preceding half-year. The difficulties which might oppose or partially frustrate the execution of the designs of His Majesty's Government being thus obviated, it remains to consider what provisions the proposed act of Assembly should contain. First, then, it should be enacted, that so much of the British statute of 1791 as relates to the appropriation of the clergy reserves should be repealed. But as it is unnecessary, and would be highly inconvenient, to repeal so much of that Act as relates to the erection and endowment of parsonages, it will be fit, in order to obviate the possibility of mistake, that the precise words upon which alone the repeal is to operate, should be quoted in the repealing act. Secondly, to remove all doubts as to the effect of the repeal, it should be expressly provided that the reserved lands should immediately vest in His Majesty, and be held by him, his heirs, and successors, in the same manner in every respect as if the provisions to be repealed had never been enacted. Thirdly, the leases granted by the clergy corporation should be declared to be as valid as though the repealing Act had not been passed; but the tenants should be required to attorn to His Majesty, and to pay their rents to him, or to the receivers of his land revenue in the province. Fourthly, all sales effected and all acts done under the statute 7 & 8 Geo. IV., c. 62, should be declared as valid as though the repealing Act had not been passed. Fifthly, the only additional provision, the necessity of which I can anticipate, would be an enactment declaring that henceforward no grant of lands, wherever made, shall be deemed invalid or ineffectual, by reason of the absence of a specification of the clergy reserves appropriated in respect of such grant. With reference to future grants, this, of course, would be superfluous; but it might obviate some inconvenient doubts as to the effect in future of past neglects of this part of the Act of 1791. A provincial statute, embracing these provisions, and neither exceeding nor falling short of them in any material respect, would, I apprehend, effectually set at rest all the questions respecting 241 the clergy reserves to which I have adverted in my accompanying despatch, except in the possible, but, I trust, very improbable, event of either House of Parliament addressing His Majesty to withhold his assent. That, however, is a contingency against which no security can be taken, and upon which it could answer no practicable purpose to speculate. It remains to consider what steps should be taken, in order to bring this question fairly under the notice of the two branches of the provincial legislature. For that purpose, it will be fit that they should be invited to the consideration of the question by a message from His Majesty.Lord Goderich appears to have been so convinced that this was not a matter for the Imperial Parliament, but rather for the Colonial Parliament to legislate upon, that—although in those days it appears to have been the practice to keep the colony entirely in leading-strings—he not only sent a form of message to the Governor, in which he was to recommend the Bill to the notice of the local legislature, but he actually sent out a draft which he was to propose to the legislature; and in that draft Bill I find a clause that the land heretofore appropriated in those provinces, for the support and maintenance of the Protestant clergy, and remaining unsold, should revert to His Majesty, as of his original estate, and should be absolved from the trust purposes for which it had been appropriated. I would wish to remark upon this despatch, that here we have the first step, showing how little value is to be attached to the complaints which were made by the right rev. Prelate near me (the Bishop of Exeter) on a recent occasion, that this was an infraction of vested rights, and that it constituted a breach of faith. But what can the right rev. Prelate say of the course taken by Lord Goderich and every Colonial Secretary, except that there was no attempt to legislate through the instrumentality of the Imperial Parliament? In consequence of this despatch from Lord Goderich, the Governor, Sir John Colborne, sent the message he was directed to send; but legislation was stopped by the prorogation of the Canadian Parliament, which took place almost immediately. My Lords, how different is the course we are called on to take now. In 1831, we find the Colonial Parliament was invited (for these are the words used by Lord Goderich) to consider this question and to legislate upon it; and we now in 1853 are engaged, not in discussing the question whether we shall abandon the whole system of the Canada clergy reserves, but whether we in 1853 shall give 242 to the Colonial Parliament power to do, inter alia, what we in 1831 invited them to do. I have said, no consequences arose from this despatch of Lord Goderich, and the struggle continued as heretofore; but in 1835 the Legislative Council appears to have become alarmed at the state of the contest which continued in the colony, and they in that year for the first time addressed the Imperial Government, requesting them to interfere in reference to this much-vexed and long-mooted question, That address was answered by Lord Glenelg, who was then Colonial Secretary, in a despatch dated the 5th of December, 1835; and he repeated the same views as had been expressed by his predecessor in office as to the colonial nature of this question, and the unconstitutional character of attempting to legislate by the Imperial Parliament on matters affecting the local concerns of the colony. He said—The chief practical question, then, which at present demands consideration is, whether His Majesty should be advised to recommend to Parliament the assumption to itself of the office of deciding on the future appropriation of these lands. There are two distinct reasons, both of which appear to me conclusively to forbid that course of proceeding. First, Parliamentary legislation on any subject of exclusively internal concern, in any British colony possessing a representative assembly, is, as a general rule, unconstitutional. It is a right of which the exercise is reserved for extreme cases, in which necessity at once creates and justifies the exception. But, important as is the question of the clergy reserves in Upper Canada, yet I cannot find in the actual state of the question any such exigency as would vindicate the Imperial Legislature in transferring to themselves the settlement of this controversy. The second ground on which I think myself bound to abstain from advising His Majesty from referring this question immediately to Parliament is, that the authors of the Constitutional Act have declared this to be one of those subjects in regard to which the initiative is expressly reserved and recognised as falling within the peculiar province and the special cognisance of the local legislature, although its ultimate completion is no less distinctly made to depend, in addition to the ordinary submission to His Majesty, on the acquiescence of the Imperial Parliament. 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 for six weeks before that decision was pronounced. Remembering, it should seem, how fertile a source of controversy ecclesiastical endowments had supplied throughout a large part of the Christian world, and how impossible it was to foretell with precision what might be the prevailing opinions and feelings of the Canadians on this subject at a future period, Parliament at once secured the 243 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 than in its infant state, and of which no human foresight could divine the more mature and settled judgment.That showed that up to this date in the year 1835, every Colonial Secretary was still under the impression that by the Act of 1791, the power of the Colonial Parliament to legislate was unlimited. Lord Glenelg proceeded to say—I think, therefore, that to withdraw from the Canadian to the Imperial Legislature the question respecting the clergy reserves would be an infringement of that cardinal principle of colonial government which forbids parliamentary interference, except in submission to an evident and well-established necessity.There is a subsequent despatch from Sir George Grey, dated the 29th December, 1837, but it is much to the same effect, and I am unwilling to inflict a long statement upon your Lordships. I will, therefore, hurry over this historical sketch that I have ventured to lay before your Lordships. I will not refer to successive documents of the same description, or quote the words of the Earl of Gosford, the Earl of Durham, or Lord Sydenham. The same story is to be found in them all, both in reference to the clergy reserves and the mode of dealing with them. From this very ominous volume, that was laid on your Lordships' table in the year 1840, I will merely quote one more despatch; it is from my noble Friend Lord John Russell, and is dated the 7th September, 1839, the year before the Act was passed which I now propose to deal with. He said—Parliament delegated to the local legislature the right of appropriating the clergy reserves, and the effect of the Bill is to retransfer this duty from the local legislature to 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 prejudice and of no substantial advantage. It would postpone indefinitely the settlement of a question which much concerns the welfare of the provinces to bring it to a close; 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. For all these reasons Her Majesty will decline to give Her assent to this Bill.I ought to have said that this was in 244 answer to a further address from the Colonial Legislature calling upon the Colonial Secretary to apply to Parliament to arrange this matter for them. My Lords, I have now shown what the views were of successive Secretaries of State for the Colonies on this subject. In the year 1840, for the first time, the two Houses in Canada came to a decision upon this subject, and a Bill was at last passed for the settlement of this question. The two Houses at length agreed, under the governorship of Lord Sydenham, to send to this country a Bill for the Royal assent. That Bill was prepared under the 42nd clause of the Act of 1791, and was laid upon your Lordships' table with the view that at the expiration of thirty days from that period, no address being made to the Crown respecting it, it might receive the Royal assent. Unhappily, a question was raised, not by a noble and learned Lord in this House, but by one whose legal acumen has very often pointed out defects in Acts of Parliament before—I mean a right reverend Prelate near me (the Bishop of Exeter); and he raised the question as to whether the Colonial Legislature had not exceeded their powers, and in truth that which every successive Colonial Secretary had believed to be their right, and each successive Assembly of Canada had believed also to be its right, and that which I believe every lawyer in this country who had looked to the question up to that period had believed to be indisputable—a question was raised as to whether the Act of 1791 enabled the Canadian Parliament to deal retrospectively with the clergy reserves, as well as prospectively with regard to the appropriation of fresh lands. My Lords, on this question being referred to the Judges, they decided that the Canadian Parliament had not the power, and had no right, to pass the Bill; and although it was absolutely necessary for the Parliament and Government of that day to acquiesce in that decision, yet I think your Lordships will agree that it was no little hardship upon that colony, after the course successive Governments had taken, and the belief so long existing, and this constant struggle respecting the subject, that when at last the two Houses had been brought to agree, then the authorities of this country should step in and say, "We have been all wrong; you might have spared yourselves these many years' contests; we might have spared ourselves all the despatches that are contained in these books; we might 245 have spared all our constitutional law, and you all your struggles. We find that such a right did never exist; and now that you agree, we must step in to differ with you." The result of that decision was, that the Government of the day, feeling that it was absolutely necessary to settle this question, and that no alternative remained, brought in a Bill to a great extent, although not absolutely, embodying the provisions of that Bill which had been agreed upon by the two Houses of the Canadian Legislature in the preceding year, That Bill was introduced into the House of Commons, and subsequently passed through both Houses, though very materially altered in its progress;—especially as regarded the relative proportions to be received by the respective denominations of Christians, considerable alterations were introduced. Well, my Lords, I am not going to deprecate the spirit of compromise that admitted those alterations to be made, but I do not think we have a right to complain of the colony because it has not been accepted, when a Bill was passed in a final form, in no degree agreed to by them, and in many respects opposed to their wishes. So far from a universal acquiescence being given to the measure, as stated in this House on a former occasion, we had at that time received from Lord Sydenham, the Governor of Canada, an intimation that this compromise would not be conclusive, that the Canadians would never be satisfied with it, and that at some time after the question would be raised, and this unhappy controversy would be renewed. But even if this had not been the case, and if it had been accepted by the Canadians at the time as a settlement, what right should we have now to consider them bound by that settlement, or to say that what was suited to the circumstances of Canada in 1840, is entirely suited to her circumstances in 1853? Have no changes taken place in that country since then? Why, nothing hardly remains the same. The increase of population has been enormous—I believe the population has been nearly if not quite doubled within that period—and the progress in material wealth and civilisation has more than kept pace with the increase of the population. The relative proportions of the religious denominations within that country have been materially changed—because it is not as in a settled country, where families follow the individual belief of their parents. In that country a large immigration has taken place from various parts, and of 246 course the denominations of Christians are in a constant state of mutation, and fluctuations occur from year to year. I say then, my Lords, that the circumstances of Canada are as different now from what they were in 1840 as it is possible to conceive; and though it may be an interruption of my statement for a single moment, let me point out the state of extraordinary prosperity, peace, and contentment, except on this one subject, which that colony now enjoys. We now hear nothing of the question of annexation, and I think I am bound to say that we hear nothing of it in consequence of the course of government that has been pursued towards that colony for several years past. I say that a wise policy has been maintained both by the Government at home and by that able man my noble Friend Lord Elgin, who has acted in accordance with and trader the directions of that Government. My Lords, we hear nothing now of annexation; the Canadians justly believe themselves to be the inhabitants of a country that requires not to be annexed to any other; but, moreover, they do not desire another change that was touched upon in this House, but which I hope will never be seriously mooted—I mean that of independence. I believe, my Lords, that independence would be as injurious to Canada as annexation. I believe in that colony there is as strong a feeling of loyalty towards the Government and towards this country as in any other part of Her Majesty's dominions, either colonial or at home; and if you wish to maintain this feeling—if you wish to maintain this great and important colony as a portion (I will not call it a dependency, but an integral portion) of this great empire—if you wish so to maintain it, you must pursue the policy that has been followed for several years past. You must not now take a retrograde step, especially on this one point in which her dearest interests are involved, and on which men in all countries feel more keenly than on any other. I defy any noble Lord, however eloquent, to show that we should make this an exceptive case; if we wish to maintain this portion of our empire in its present temper, loyalty, contentment, and peace, we must follow out the policy that has been pursued, and not depart from it by refusing to give that assent to this Bill which I am now about to ask your Lordships to grant. What is the difference between the opponents and supporters of this Bill? Is there any Member of your Lordships' House who will deny the neces- 247 sity for making an alteration in the Act of 1840? Does any one pretend that no alteration whatever is to be introduced into it? Most undoubtedly if there be any of your Lordships who entertain that opinion, the noble Lords opposite are not the parties to do so, for it was distinctly recognised by the Government that preceded the present that alterations were necessary, and the only question appears to have been, by whom were those alterations to be effected? I have already on a former occasion, quoted a passage from the despatch of Sir John Pakington on the 22nd of April last year, and I feel it to be so important that I shall quote that passage again. He says—That while it appears to Her Majesty's Government that in the distribution authorised by the Clergy Reserves Act, 3 & 4 Vict., of the proceeds of the sales of reserved lands, no ground is left for reasonable jealousy, or complaint of undue favour to particular religious denominations, they think it possibly may be desirable, on account of the changes that may be effected in the character of the population, either by extensive immigration, or other causes, that the distribution in question should, from time to time, be reconsidered.Well, my Lords, what is it that the present Government propose? An alteration, undoubtedly, in the Act of 1840; but do we propose that measure which some noble Lords and others in the country have expressed so much apprehension of—do we propose any measure for secularising those reserves? By no means. ["Hear, hear!"] The right rev. Prelate cheers me, and I know what he means; he is about to introduce the old argument, that though we are not going to secularise them we are about to put out of our own hands, and into the hands of the Legislature of Canada, the power to secularise them. Most undoubtedly we are; and if you can show any case for retaining a privilege in the hands of the Imperial Legislature which until the year 1840 we believed to belong to the Colonial Legislature, and which by right belonged to the Colonial Legislature as much as any other question affecting their local concerns—unless you can prove that, no prospect you can hold out to me—even if you can substantiate it, of secularisation of the reserves by the Canadian Parliament, ought to justify you in refusing to do that which you believe to be an act of right and justice to the colonists of Canada. The present measure is a simple one, and its object is to hand over the decision of this question to those to whom it rightfully belongs. I, certainly, for one, 248 will not anticipate what the Colonial Legislature will do if you pass this Bill, because I stand distinctly on the question of right and justice, and we have no right whatever to enter upon that other question. At the same time, if I were expressing my own individual opinion, I would say that I am not without hope that the Canadian Parliament will treat this question in the same spirit that your Lordships would do, and that if you pass this measure now there will not be—I will not say a desire on the part of any of them, but—a unanimous decision, or a decision by a majority of the Colonial Legislature, for the secularising of those reserves. That is a matter of mere individual opinion; I put it forward as nothing more, but I say there are grounds for a just confidence in them on this question. I see that the noble and learned Lord opposite shakes his head; but I know of nothing that has passed, at least, that would indicate any foregone conclusion on the subject, or indicate a determination on the part of the Legislature or Assembly of Canada to do more than to acquire the powers which I say the Government is prepared to give them, and which I hope your Lordships will assent to. My Lords, what was the Resolution that was passed, on the Address by the Legislative Assembly on July the 1st, 1851? The address, asking for the power to legislate on this question, was passed by a considerable majority; but there was a further question raised on this subject, and an attempt was made to decide then what should be done with those reserves. A Motion was proposed by Mr. Mackenzie that those reserves having been originally bestowed upon the Protestant clergy, and a portion of them having been diverted from that purpose and appropriated to the Presbyterian Church, future religious tranquillity would be secured by a final diversion of those reserves from all ecclesiastical and Church purposes, and by their application to a general system of education, whereby persons of all religious creeds would alike profit by them. Here then, was the question of secularisation distinctly raised; and though I do not mean to say the division on that question indicates the exact state of opinion upon it, it leads me to form an opinion that the members of the Canadian Parliament are not yet prepared to take that final step, the resolution having been negatived by a very considerable majority. As I have said before, I will not enter upon the consider- 249 ation of what the Canadian Parliament may do when your Lordships shall have restored to them that which I believe they ought never to have been deprived of; but you may look upon it as an axiom that you can have no better defence against the abuse of power than responsibility; and when you throw upon the Canadian Legislature a share of the responsibility, you will have taken at once the only security you have a right to take, and the best security you can have, against any undue or improper use being made of the powers you confer upon them. I need not refer to the despatch of Lord Elgin on this subject, nor to the despatches of the noble Earl near me, when he was Colonial Secretary:—but how stands the question at this moment? In what position are we now placed, and how does this question come before us? There have been two Addresses to the Crown on this subject from two distinct Assemblies; one address was agreed to by the Legislative Assembly shortly before a dissolution; the other address was agreed to by the Assembly immediately succeeding; thus representing the feelings of the people of Canada after the result of a general election, at which this question had been specifically raised. You have those two Addresses before you, urging upon you to hand over to the Colonial Parliament the power of legislating on this question, and to divest yourselves of that power which they feel to be at variance with their rights. My Lords, practically, the Canadian Parliament had this power in the infancy of the State; the right existed in the infancy of the State, and was supposed to continue up to the year 1840; and now, in the mature age of this colony, will you hesitate to give them that power which nobody wished to deprive them of before, through an apprehension that they will be disposed to abuse it? My Lords, you have abandoned the finality of the Act of 1840, as I have shown by the despatch of the late Government; and I say, when you have abandoned the finality of the Act of 1840, there is no reason on which you can base your refusal to pass this measure through a fear that the Canadian Parliament would abuse the powers conferred on them. My Lords, if you say that is a reason for refusing to pass this Act, the same reason might have retained in the hands of the Colonial Office every power that has been conceded to our colonies on every principle that was sound and good. Was there, I ask you, any ap- 250 prehension, when you passed the Act of last year, handing over to New Zealand the administration of the lands of that colony, that there would be any abuse of that power? No doubt, in the first instance, there might be an abuse of it; but is that a just and sufficient reason to refuse doing what is just and right? Well, just so it is in the present instance; the refusal to grant this power on account of its possible abuse by the colonists of Canada is equally untenable as an argument against the concession; and I can see no reason but one based upon that abstract principle which at any rate was abrogated in 1840, and which I believe is maintained by a right hon. Friend of mine in the other House of Parliament—I can see no other reason but this abstract principle, the want of power in all Parliaments to deal with a question of this nature—on which you can refuse to pass the Bill now before you; and if you refuse to pass it upon that ground, the objection will equally apply to the power of the Imperial and of the Colonial Parliament—we, under such a principle as that, have no more business to legislate upon it than the Canadian Parliament, to whom you refuse the power. When Sir John Pakington, in the despatch I have read to your Lordships, stated that the late Government was willing to entertain the question, and proceeds to say that any proposals that were made for the redistribution of the reserves, Her Majesty's Government would be willing to entertain, I must say, it appears to me that no greater violation of the principle of colonial freedom was ever propounded by a Colonial Secretary. By acting upon that principle, you will say that you admit that there are things which it is right should be done within the province of Canada; you admit the present state of things is unsatisfactory, and that an alteration may take place; but you say to the Canadians, "If you will submit those proceedings to us—if you will make your recommendation—we, keeping you in leading-strings, will decide whether we think it is right to do those things for you or not: you shall not do them for yourselves; we are the judges; we will exercise a discretion for you, and legislate for you if we think fit, and if not, let it alone." What becomes of the question of the public faith after this? My Lords, of finality I think we have long ago disposed; but there is another question I would like to ask, and that is, what becomes of this argument that has had such important weight with 251 many out of doors, and some of your Lordships—the argument which is based upon the supposition that we are bound to maintain the rights of the Church of England? My Lords, is there on this question any longer subsisting what I may call a Church-of-England party?—and I will go further, and ask if it be possible to maintain that there is even a Protestant party? The noble Earl (the Earl of Winchilsea), whose feelings are always excited, and properly so, by that subject, shakes his head; but if he looks to the past history of this subject, he will find that it is impossible to say that there is any argument which can be called the Protestant argument any longer to be maintained. The Act of 1840 actually did that which it is now proposed to repeal; it actually endows the Roman Catholic Church. The noble Earl to whom I have just now alluded spoke on another subject on Monday last; he spoke with holy horror of the wickedness of Her Majesty's Government, and certain Members of your Lordships' House, in supporting an institution of an anti-Protestant character; but I would remind the noble Earl that the Act of 1840, which it is proposed to repeal by what is called this anti-Protestant measure, specially provides that a portion of those reserves should be given to the Roman Catholic Church. ["No, no!"] I believe I am wrong in saying "specially provides;" but by the Act there is power so to appropriate them; and since the passing of the Act that appropriation has been made. The Act of 1840 entirely altered the position of those clergy reserves, and power was given to grant a portion of them to the Roman Catholic Church. From that period the Roman Catholic Church has derived very considerable advantage from them; and a sum of 1,160l. has been regularly paid to the Roman Catholic Church during the whole of the intervening period. What then becomes of the Protestant argument? You are complaining that we are sacrificing the Protestant character of those reserves, and passing a Bill of a most anti-Protestant character, because we are repealing a measure under which the appropriation of a portion of them to the Roman Catholic Church is to be made. You can no more maintain the anti-Protestant character of this Bill, than the right rev. Prelate can maintain (I shall leave him to consider the answer he received on a former occasion from a right rev. Brother) that this Act is an act of sacrilege; for after the appropriation that took place in 1840 252 we now propose to give to another body the power that we did not hesitate to exercise ourselves. My Lords, I sincerely hope that it is unnecessary for me on this occasion to enter into any discussion or argument on the question of the relative numbers in the Canadian Parliament by which this measure was supported and opposed. The Secretary for the Colonies in the late Administration (Sir John Pakington) dwelt upon it on a former occasion when the question was before us; but I feel, my Lords, that such an argument strikes at the root of all representative government. I feel that it will be impossible to maintain such an argument as affecting Canada without looking to it as affecting our own House of Commons; and there are few of your Lordships, I believe, who will agree to a proposition to attach an enormously preponderating weight to the opinion of the Member for the West Riding of Yorkshire or of the city of Manchester, over the opinion of the Member for the borough of Droitwich or the borough of Midhurst, in the Imperial Parliament. Few of your Lordships will agree to such a proposition, and it was a bad argment for any one to put forward, but more expecially for one who had held the important office of Under Secretary for the Colonies. My Lords, I hope another argument will not be used, namely, an argument that is founded on an analysis of the votes as regards the religion of the Members by whom this measure was carried. If you do so, you will adopt a most dangerous course. If you come to the decision that the Roman Catholics in the Canadian Parliament have no right to vote on a question affecting the clergy reserves, you must equally come to the conclusion that Roman Catholic Members of your Lordships' House have no right to vote on such a question as came before you on Monday last. Both the arguments are equally dangerous and equally untenable; and from the deep interest I feel, both officially and individually, in the welfare and peace of Canada, it was with the most sincere pain that I found them urged by some of the opponents of this Bill. In regard to this question, those Roman Catholic Members of the Colonial Legislature have not, up to the present time at any rate, voted on a question that interests their Protestant countrymen in any greater degree than themselves. They voted that a measure of colonial freedom should be passed; their Protestant countrymen believe also that it ought to pass; and any 253 opinion beyond that they have not professed. We are told that the Roman Catholic endowments in Canada will stand in a very different and a more advantageous position than the Protestant endowments if this measure should pass. I maintain that will not be the case. I say that if you pass this measure the clergy reserves will stand precisely on the same footing as the Roman Catholic endowments. In the first place, my Lords, there is a great misunderstanding with respect to the endowments of the Roman Catholic Church. Those endowments mainly consist of tithes, and with respect to those tithes the Canadian Parliament have already the power to legislate on them—as much power as they will have to legislate on the clergy reserves if you pass this Bill. With reference to the other large branch of what may be called endowments in the nature of charitable and educational establishments, we have already seen how insecure their tenure is if the Legislature of Canada wish to alter it. I quoted on a former occasion a case where, in spite of treaties, and of an Act of Parliament which was passed subsequent to those treaties, so little secure was their tenure supposed to be, that they willingly surrendered any security they had, and accepted from the Government of the day a colonial ordinance as their only title and security. With this single fact before you, can it be considered that we are dealing with the clergy reserves in an unfair or partial spirit by giving an advantage to any other Church in that country over the one to which the majority of ourselves belong? A petition was presented just now by a most rev. Prelate (the Archbishop of Canterbury) from a most distinguished Prelate of Canada, the Bishop of Toronto, and he stated the substance of that petition, which was already on your Lordships' table, in the form of a letter addressed to me. I have read that letter with the attention which anything coming from that eminent individual deserves; but I must say that I have been struck with astonishment at reading this letter, having had previous opportunities of observing the great powers of mind of that eminent man—his great ability—his clearness of argument—his logical acumen—I say I have been astonished, in reading this letter, to find that, however able it is in many respects, there is, throughout the whole of it, an absence of that continuity of argument, and of that logical deduction, that I never saw wanting in any other of 254 his productions. There is hardly one sentence in that letter which does not contradict that which precedes it, or which is not at variance with that which succeeds it. The right rev. Prelate tells you at one time that we are placing the Church of England in an inferior position to the Church of Rome; and he uses some words in the force of his zeal which I am sure the amiability of his disposition must have subsequently led him to regret. In a subsequent part of his letter, however, he appeals to those very Roman Catholics, and calls upon them to assist in the common cause; nay, more, he points out in two distinct passages of the letter that the Roman Catholic endowments stand upon a weaker foundation and are in a worse position than the clergy reserves will be, even if you pass the present measure. I rejoice, therefore, that your Lordships are in possession of this letter, with respect to which I have on several occasions had anxious inquiries from the right rev. Prelate near me (the Bishop of Exeter), who was so desirous for its publication that he sent it to a newspaper called the English Churchman before it was received at the Colonial Office. [The Bishop of EXETER made an observation.] I really did not look at the date of the paper. I saw it there a day or two after I received the letter. I presume, therefore, that the right rev. Prelate can explain how this letter addressed to the Colonial Secretary—a public document—was published in a newspaper before it was laid on the table of your Lordships' House. I rejoice, however, as I have already said, that this letter is in the hands of your Lordships; because, long as it is, I will appeal to any of your Lordships who have given it a candid perusal, whether the balance of the argument it contains is not against the position of the right rev. Prelate, and in favour of the view taken by Her Majesty's Government, so far as equal justice to the various religious denominations of Canada is concerned. We have been frequently told that we should take an example in this matter from the course pursued by the United States in a similar case: and that the Canadian Parliament are now anxious to do what the United States never attempted to do, and certainly never did. We are particularly told to look at the State of New York, whose regard to public faith is put in prominent contrast with the assumed desires and intentions of the Canadian Legislature. My Lords, I be- 255 lieve that the two cases are not at all parallel, and that in cases really parallel the comparison would not hold good. But I am ready to take the case as it has been stated. I think I have a right to deduce from the circumstances as they are presented to us, an important argument in favour of the Bill now before the House. What is the cause that the State of Now York has never endeavoured to confiscate, as it is called, these endowments of the Episcopal Church of England, which was established at the time of the connexion of that colony with this country? It is because in these days we dealt with the State of New York in a different manner from that in which noble Lords are now calling upon us to deal with Canada. The Government of those days did not, by imperial Acts of Parliament, endeavour to fetter the State of New York with reference to this endowment of the Church of England. We did not say, to use the words of the late Colonial Secretary, "If you want alterations, appeal to us; we will make them if we think fitting;" but we left them a free action in this matter; and as we left them, and as we trusted them in other cases, we placed confidence in them as to this; we did not say to them, "You are unworthy to be trusted on that most important matter, the management of affairs connected with the maintenance of your religious establishments." On the contrary, we said to them, "Everything connected with your local concerns shall be upon the same footing, whether it relates to the State or to the Church;" and we see the results. The spirit of confidence which we displayed towards the State of New York, was rewarded, as I believe a similar display of confidence towards Canada with respect to these reserves will be. You trusted the people of the former province; and, as we are now told, they have maintained unimpaired and unsecularised these establishments, which date from the time of their connexion with this country. I believe that if, upon the passing of this measure, of which I feel confident, these reserves are secularised, that the cause of that secularisation will be to be traced to the mistrust shown by this country and its Legislature. I think it is greatly to be lamented that this question has remained open so long as it has done; but of this I feel sure, that if you leave it open much longer, when at last this power is yielded, there will be such a spirit of acrimony existing, that so pitted against 256 each other will be the various sects of Canada, that confiscation or secularisation—whichever you please to call it—will be the certain and inevitable result. I feel that I have trespassed upon your Lordships' time a great deal too long; but before I conclude I must allude to one other matter, although it is perhaps hardly germane as regards your Lordships' House. When this Bill was first introduced into the other House of Parliament, it contained a third clause, and I think it right to explain both the reason of the omission of that clause, and the position in which the subject now remains. When this Bill was prepared, I felt that, inasmuch as we were repealing that provision of the Act of 1840 which placed in the hands of the Imperial Parliament all questions affecting the future distribution of the clergy reserves, it was desirable that, as that Act contained a clause guaranteeing under certain contingencies a provision from the Consolidated Fund, that clause also should be repealed, although it was hardly possible that the case contemplated by it could ever arise. I was of this opinion because I desired to make the measure as complete as possible, and not to leave anything open for future discussion or debate. At the time, however, that the Act of 1840 was passed, I was not, I believe, in this country, and certainly I was not in town, and I was not, therefore, aware that that guarantee had originated in an arrangement made between the Government of the day and the most rev. Prelate who then occupied the see of Canterbury. Upon the subject being brought before the Government, we came to the conclusion that, inasmuch as apprehensions, however fallacious, were then and might still be entertained that the fund might, under possible circumstances, fall short of the 10,000l. and odd then allotted to the two Churches, and as, by the alteration of the law now proposed, by which the future management of this fund was transferred from the Imperial Government to that of Canada, this point might not remain in precisely the same position as before—it was incumbent upon us—in order that there might be no misunderstanding or misapprehension as to good faith having been kept in a matter of this kind—to take care that, whatever might be the effect of the altered provisions of the Bill, we should not specifically and by enactment repeal that guarantee to which the two parties concerned in this matter had formerly agreed. 257 That was the reason why the clause was omitted. I do not wish to conceal from your Lordships that subsequently to the omission of this clause it has been estabblished, so far as the opinion of the law officers of the Crown goes, that the measure which I am now about to ask your Lordships to read a second time, does in itself do away with the effect of this guarantee, inasmuch as it does away with the conditions on which it was based. That no doubt is the fact; but at the same time I certainly see no reason to regret that the clause, inserted in the first instance, was subsequently omitted from the Bill, inasmuch as we still maintain that provision for a deficiency in the fund, for which, and for which alone, this clause was inserted in the Act of 1840. Now, my Lords, I have arrived at the conclusion of the statement which I have felt it to be my duty to make in proposing the second reading of the Bill. But I must in conclusion entreat your Lordships that you will not—as I feel confident that you will not—hastily refuse a second reading to a Bill which is so earnestly desired by a great majority of that important community now living within the province of Canada. I trust that you will not now enter upon a controversy with that colony which I feel confident cannot long be maintained. I trust that you will not now refuse a second reading to this Bill, unless you feel that you can conscientiously and firmly, year after year, refuse those appeals to you which certainly will be again and again renewed—unless you feel a thorough confidence in any arguments which may now be brought forward in opposition to this Bill—unless you feel that your position is so strong that you can maintain it—unless you feel that right and justice are with you, and not with the colony—unless you feel that you can consistently persevere in the struggle when once you have embarked in it. I trust that—unless such be the case—you will not enter upon a course which I believe cannot be ultimately successful. My Lords, before I conclude, having thus addressed myself to your Lordships collectively, I would address myself with all respect, but with all earnestness, to the right rev. Bench. I would most earnestly exhort and pray them not to engage the Church of England in a contest of this kind. I would earnestly implore them not to yoke her with an opposition to the independent action of a colony. I know well what must be the result of such a struggle—colonial 258 freedom will in the end prevail—but I fear that, however short the struggle, the Church of England in the colony will not remain in its present high position. I believe that the Church of England would be worsted in the contest, and that, instead of, as now, from the purity of her doctrines, the zeal of her sons, and the assistance of their fellow-countrymen here—making a progress in the colony which gladdens the hearts of Churchmen, a spirit of animosity against her will be aroused in all the opposing sects, and that even some of her own sons, disgusted with the struggle, would not, perhaps, remain faithful to her as they are now. I appeal, then, to the right reverend Bench, not thus to check the vigour—to a certain extent new-born—which is now to be seen in the Church of England in Canada, but to leave the colonists of this empire to arrange their own Church affairs. I ask, then, and I ask your Lordships generally, to vote for the second reading of this Bill, which does not militate, as I in my conscience believe, against any of these sacred rights that the right reverend occupants of that Bench are bound to protect, and which, if passed—and especially if passed by a large majority of your Lordships—will give religious peace and contentment to that important portion of this mighty empire—to the inhabitants of a colony which is rising day by day into increased importance.
§ Moved—That the Bill be now read 2a.
The BISHOP of EXETER
rose to move as an Amendment, that the Bill be read a second time that day six months. He had heard with the utmost astonishment the extraordinary inaccuracies which pervaded the whole of the noble Duke's statement of the law affecting the question; but having heard those inaccuracies, he had ceased to feel some of the astonishment he should otherwise have done at the arguments he had used in urging this question on the House. The noble Duke had argued that the colonists had uniformly had the same power as that which it was now proposed to give them; that practically the Colonial Legislature had had that power since 1824; that it had been always recognised as belonging to them, and that Lord Goderich had invited them to use it; but he confessed that he heard with amazement the noble Duke state that if this Bill passed, the Colonial Legislature would have no more power over the clergy reserves than they now had over the Roman Catholic endowments. It 259 was with utter amazement that he had heard such a statement from such an authority. Why, the very contrary was the fact. The Roman Catholic endowments would still be protected. Under the Constitutional Act of the 31 Geo. III., which would be absolutely annulled for ever as related to the clergy reserves, if their Lordships passed this measure, the Roman Catholic endowments would still be protected. Would the noble Duke the Secretary for the Colonies deny that this would be the case? At present, if the Colonial Legislature should send over a Bill to this country for putting the same termination to the Roman Catholic endowments as this measure would give them the power of doing unconditionally with regard to the clergy reserves, it could not be carried into effect without the consent of both Houses of Parliament. The Bill must remain thirty days upon the table of their Lordships' House before it obtained the Royal assent, and an address to the Crown against the Bill would get rid of it altogether. But that would not be the case if the Colonial Legislature chose to exercise the power which this Bill proposed to give them in dealing with the property of the Church of England; and their Lordships, therefore, would never have the power of interfering to prevent the secularisation of these reserves, in case such a proposal should be made. Were their Lordships, then, to be told that the two cases were the same? The provision in the Act of 31 Geo. III., was framed in such a way that, unless any Bill upon this subject had the concurrence of both Houses of Parliament, it would not become law. It was not necessary, according to that Act, for the House of Lords to inquire what the other House was doing—joint action was not necessary. The House of Lords, therefore, had at all times the power of saying it should not be lawful. This Bill, however, took away this protection, and thus striking as it did at the root of the sacred interests of religion, he trusted that that House, which was specially entrusted with the guardianship of those interests, would not suffer it to become law. Would the noble Duke, when this Bill went into Committee, undertake to introduce such a provision as would render correct the statement he had made, that the case of the Roman Catholic endowment was the same as that of the clergy reserves? Would he introduce a provision that the House of Lords and the House of Commons should have the power of stopping the secularisa- 260 tion of these clergy reserves if the Canadian Legislature should think fit to pass such a measure? If he would not, where was the public faith? He (the Bishop of Exeter) contended that the Colonial Secretary was pledged as a man either to take that course, or to abandon the ground upon which he rested his case. The noble Duke smiled; but if he (the Bishop of Exeter) had made such a statement, and had argued that a Bill ought to pass because the Colonial Legislature would have no more power over the clergy reserves than they had now over the Roman Catholic endowments, and then was told he was utterly mistaken, and that it would take away altogether the clergy reserves from the protection of each House of Parliament, leaving still the Roman Catholic endowments under that protection, he (the Bishop of Exeter) should feel it his bounden duty to introduce such a provision as that he had suggested. He did not pretend to judge of what the noble Duke owed to his own honour. But he would say, for himself, that if he had made that statement for that purpose, he should feel himself bound to consent to the introduction of a provision which would make the measure accordant with the statement advanced by him, and to which he had attached so much importance. The noble Duke had spoken about the exclusive right of the Colonies to legislate upon matters of strictly colonial interest, in terms which certainly astonished him. He spoke as if the Colonies had an absolute right to this, and this was certainly quite consistent with the language used in his despatch, where he undoubtedly went the whole length of affirming an absolute right in the Colonies to legislate in all matters of purely domestic concern. He there said—The Government are fully satisfied that no such sentiments of regret for the possible secularisation of these reserves would justify the Government or Parliament of this country in withholding from the Canadian people, through their representatives, the right of dealing as they might think proper with strictly domestic matters.There was not a word here of those interests which the Legislature of 1791 felt it to be their duty to guard; everything was left to the mercy of the Colonial Legislature. But the principles here laid down were not those of the law of England. Speaking in the presence of so many learned Lords, he ventured to say, not one of them would assert he was incorrect when he stated that the Imperial Legislature had an absolute right to legislate on every mat- 261 ter whatever on which the Colonial Legislature had a right to legislate also. The best way of dealing with such matters was to exercise mutual consideration and forbearance. He was glad to find he had touched a spring which vibrated in the feelings of so many noble Lords. The authority on which he laid down the proposition that the Imperial Legislature had a right to pass laws for the Colonies, was, in the first place, that of a very great man, who, though not equally authoritative on all points and all matters, still had great and deserved weight attached to his opinions on constitutional government—he meant Mr. Burke. At the time when he had not differed from his former political friends, and when he was in the fullest career of what were deemed the most liberal constitutional principles, in his great speech on American Taxation, Mr. Burke said—I look on the imperial rights of Great Britain, and the privileges which the Colonies ought to enjoy, under those rights, to be just the most reconcileable things in the world. The Parliament of Great Britain sits at the head of her extensive empire in two capacities—one as the local Legislature of this island, providing for all things at home, immediately, and by no other instrument than the executive power; the other—and I think her nobler capacity—is what I call her imperial character, in which, as from the throne of Heaven, she superintends the several inferior Legislatures, and controls them all, without annihilating any. As all these provincial Legislatures are co-ordinate to each other, they ought all to be subordinate to her. It is necessary to coerce the negligent, to restrain the violent, and to aid the weak and deficient, by the plenitude of her power. She is never to intrude into the place of others while they are equal to the common ends of their institution.A more correct and accurate description of the rights and privileges of the Colonial and Imperial Legislatures could not be drawn. It was, to be sure, eighty years ago since it had been spoken, and it might be, though he doubted it, that we had grown wiser as well as more liberal since that time; but, even supposing Mr. Burke's authority not to carry weight with it now, he could refer to the opinions of another very excellent man—one of the most upright and excellent this country ever produced, and well known to many around him—the late Sir Samuel Romilly. Mr. Wilberforce had moved for leave to bring in a measure to afford some protection to slaves in the West Indian Colonies, but had been met by assertions on the part of the planters that we had no right to interfere in the internal affairs of the Colonies—just, in fact, as the noble Duke near him said we had no right to 262 legislate for the Canadian Church. In reference to that notion and assertion, Sir S. Romilly, in his diary—and, therefore, the record of his opinion was all the more satisfactory and valuable, as he had written his thoughts in the quiet of his own room—said, writing under the date of June 13, 1815—Wilberforce made his Motion for leave to bring in a Bill for establishing a registry of slaves in the plantations. The Motion was opposed by several persons who have an interest in West India property. They said the attempt to carry such a measure was likely to produce very alarming consequences; that the British Parliament's right to legislate as to the internal concerns of the Colonies was disputed, and such an act as this could not but excite the greatest jealousy and alarm on their part; and they hinted that it might produce open resistance. Lord Castlereagh said he should not object to bringing in the Bill, if it were merely to be printed and suffered to stand over to the next Session. The right of the British Parliament to pass such a law could not be disputed; but it was very inexpedient to do it if the Colonial Legislatures could be prevailed on to pass such Acts themselves; and, in the hope that they would, he suggested the expediency of postponing the measure to another Session. This suggestion it was thought prudent to adopt, and Wilberforce said that if permission were given to bring in the Bill, he should merely bring it in, have it printed, and take no further step at present. A great deal has been gained by this debate. It is of great importance to put an end to the notion entertained, or at least professed by the planters, that their Colonial Legislatures have the sole and exclusive right to make laws to regulate their own internal concerns.Again, on June 19, 1816, he said—Much was not said in the course of the debate on the question of the right of the British Parliament to legislate with respect to the treatment of the slaves in the West India Islands. Something was said on it by Brougham and something by myself, but very little by any other Member. But, though I did not think it expedient to enlarge upon it, I own that I feel a great deal of indignation when I hear the colonists endeavouring to revive the political controversy which preceded the American war.In addition to that authority he had implied in it the opinion of Mr. Wilberforce, which was certainly very valuable on such a subject; but now he would cite the express authority of Mr. Wilberforce himself, who, in his diary, writing under the date of May 3, 1816, said—The same views I pressed on Lord Bathurst, who assured me that he had told the West Indians, frankly, he would next year pass a registry Bill if the Colonial Assembly would not do it.That great and good man, just forty-eight hours before his sainted spirit fled for ever, exclaimed, that he felt thankful and happy that England had purchased the liberty of those unhappy slaves, even at the cost of 263 20,000,000l. He lived to see all his cherished hopes accomplished—all his best hopes realised; and it was one of the most affecting incidents of our history to look into the last scenes of his life, of whom it might well be said that he was— Felix non vitœ tantum claritate sed etiam opportunitate mortis. Here, also, he had the authority of his noble and learned Friend (Lord Brougham), whose greatest glory it was to have been associated with Romilly and Wilberforce in their efforts to improve the condition of the slave. The Colonies had made every effort to stave off those proposals and to neutralise their efforts; and their Lordships would recollect the Act by which the Colonial Legislature proposed to punish the murder of a slave—or rather to legalise it—by a fine of 18l., and the noble efforts by which that illustrious triumvirate forced an amendment of that measure; and the noble and learned Lord then exposed, as it deserved, the monstrous it equity of pretending to make a law which was to punish the murder of a slave, by a provision that would absolutely neutralise its declared object. And so year after year these three men—with the addition of Mr. Buxton—struggled almost alone for the protection of the slaves,—contending for the right of the British Parliament to interfere in colonial affairs. This still continued to be recognised as the duty of the British Parliament and the people, by many Members of both Houses, and especially by that party in the Legislature which succeeded to the Government in 1832, and in 1833 introduced into Parliament the noblest enactment to which the assent of the Legislature was ever asked. When, in 1833, the question of slavery engaged the attention of the Home Government, and the British Parliament accomplished the most noble act of generosity ever performed by any legislative body, in voting a sum of 20,000,000l. as compensation to the slaveholders of the West Indies, the Jamaica House of Assembly sent a committee of its members to this country with a protest against the proceedings of the Imperial Parliament, which was read in the other House by Sir Richard Vyvyan. Their instructions ran as follows:—They are to protest in the most decided manner against any interposition by Parliament in their internal affairs. The Assembly of Jamaica are always ready, on the invitation of the Crown, to discuss the measure of emancipation, compensation being first provided by Parliament, but they will not yield their legislative rights, except 264 to violence, which their confidence in the justice of their fellow-subjects will not permit them to apprehend.This document was officially signed by Richard Barrett, the Speaker of the House of Assembly of Jamaica. The noble Earl opposite, then Mr. Stanley, and Secretary of State for the Colonies, stated to the deputation most distinctly that it was the intention of Government to carry out the measures of Parliament, and—if possible, with the concurrence of the House of Assembly—to effect a complete extinction of slavery, and that such extinction must form the basis of any representation to which the Ministry could consent to yield. The deputation declared that they had no power to consent to, or authority to propose, any such plan. In a subsequent speech Mr. Stanley said—It was in consequence of the vain efforts which had been made to induce the Colonial Assembly to act in accordance with the express wishes of Parliament and the country on the subject, that they felt it necessary to legislate upon the great leading principle embraced in the measure, leaving the local details, which could not be filled up here, to be filled up by the different local Legislatures. Without, then, refusing to the local Legislatures the settlement of that which properly belonged to them, when we had forced the great leading principles upon them, their last hope of preventing the freedom of the negroes would be removed. To them was left the filling up hereafter of the details of that great outline which we now feel it our duty to mark out for them at once and for ever.Here, then, were instances of most marked and memorable interferences of the Legislature of this country with the local Legislature of Jamaica, and that interference approved of by the people. Was there anything more sacred in the local Legislature of Canada than in the local Legislature of Jamaica? The latter had existed for 200 years, and was really in such a state that it might be considered entitled to be intrusted with legislative power as far as possible. The first question to be looked to in considering the proceedings of the Colonial Legislature was, were they or were they not repugnant to the Act of Parliament of 1791? When that Act was made, the Colonial Legislature of Canada had full powers given to alter and amend its provisions to suit the circumstances of the colony. All that the spirit of the Act required was that there should be a bonâ fide provision for the support of the Protestant religion, "which," said the statute, "shall be maintained henceforth and for all time to come." And this was a principle the 265 Colonial Legislature were not to infringe. This was the ground on which he took his stand when he asserted the right of the Imperial Legislature to meddle with the acts of the local Legislature. He asserted, then, on the authority of Burke, of Romilly, of Wilberforce, of Brougham, of the noble Earl opposite, and finally of the Parliament of Great Britain itself in 1833, that the Imperial Legislature had a right to deal with all the acts of local and Colonial Legislatures. These were great names, but he would quote still another. In 1837 Lord John Russell brought in certain Resolutions [see 3 Hansard, xxxvii, xxxviii], the sixth of which was as follows:—That the legal title of the American Land Company to the land holden by the said company by virtue of a grant from His Majesty, under the public seal of the said province, and to the privileges conferred on the said company by the Act for that purpose made in the fourth year of His Majesty's reign, ought to be maintained inviolate.A right hon. Baronet who was now a Member of the Government (Sir Wiliam Molesworth) denied the right of Parliament to interfere with the Colonial Legislature, whereupon Sir G. Grey said—The right hon. Baronet had denied the right of the House to interfere in the way proposed. How then had Parliament ventured to strike off the fetters of 800,000 slaves in the West India colonies?The right hon. Baronet was not the only one of Her Majesty's present Government who held those opinions; but he might refer to another, whom he should always honour, however he might differ from him. Mr. Gladstone, the Chancellor of the Exchequer, on the 10th of June, 1839, made use of the following words:—He concurred with those who laid it down as a general principle regarding the control which the Imperial possessed over the Colonial Legislature, that that control was supreme. There could not be a shadow of doubt that Parliament had maintained and exercised that control. It was a matter not to be questioned that it formed part of the duty of Parliament to watch over, to correct, and to control the Legislatures of our West India colonies. He agreed, further, that as a general rule it was expedient, it was prudent, it was in accordance with equity and justice, that Parliament should leave the ordinary business of legislation to the Colonial Legislatures, and that Parliament, exercising a control over itself, should not permit itself to interfere or to meddle with affairs of everyday occurrence, but should rather reserve itself for great and worthy occasions." [3 Hansard, xlviii. 119.]He did not mean to say that he had the same confidence in the authority of Mr. Gladstone as he had in that of those who 266 had always maintained the same opinions on this question. He felt that the authority of that right hon. Gentleman was considerably damaged by such variance of opinion; he must therefore be content to receive him as a neutral. Let it not, however, be supposed that he charged the right hon. Gentleman, or those who had concurred in his former views, and who were now acting with him, with inconsistency. It would be unfair to expect that men, after the lapse of 14 years, should always continue to hold exactly the same opinions on any particular question. Nevertheless, seeing that there was this difference between the opinions they formerly entertained, and those which they now espoused, he was entitled to say that either they were wrong then and right now, or that they were right then and wrong now; and at all events they should have some consideration for those who could not come to the new conclusions so easily and rapidly as themselves. His right rev. Friend (the Bishop of Oxford) had, in a former discussion in that House, denied the right of the Imperial Parliament to exercise its authority in this matter, and had used arguments the effect of which was to strip the memory of his illustrious father of that renown which he had earned by his untiring labour in the cause of the oppressed slaves of our Colonies against the enactments of the local Legislatures. If his right rev. Friend's principle were sound, the name of William Wilberforce, who, through such unexampled toils, pains, disappointments, and mortifications had at length attained the one object for which he lived, instead of being revered as the great and holy champion of the negro's rights, ought rather to be stigmatised as the oppressor of the planter. He (the Bishop of Exeter) had on a former occasion frankly and candidly stated his views, both in reference to the Act of 1840 and the Bill now introduced, and for so doing a right hon. Baronet a Member of the Government had taken upon himself to style him in the other House of Parliament "a pest to his diocese," by reason of his great legal lore. Now, he really did not pretend to any great legal lore, though he should most heartily rejoice to possess it. Be this as it may—let the right hon. Baronet assail him, if he pleased, for his legal lore. He was sorry to say that he could not recriminate; on the contrary, he must frankly admit that the right hon. Baronet had showed himself as innocent of all knowledge on this subject as the merest 267 child. He would not bandy invectives with this Ministerial personage; but he would give their Lordships one instance by which they might judge of the wisdom as well as of the learning of which he was possessed. The right hon. Gentleman had told the House of Commons that "the law of England abhorred perpetuity, and had always looked upon every measure that had a tendency that way with hostile eyes." Now, in commenting on this position, he would not refer to any recondite authority—to Bracton, for instance, no, nor even to Coke, or Hobart, or Vaughan. He would content himself with referring to an authority, which was on the shelves of every Englishman who possessed a library, and was familiar to every tolerably well-educated gentleman in the land. He would refer to Blackstone as an authority on this subject, who said, "A third attribute of the King's Majesty is his perpetuity. The King never dies." Such is the abhorrence of perpetuity of the law of England. Blackstone afterwards says, "The law had wisely ordained that the parson, quatenus parson, shall never die, any more than the King, and that the present incumbent and his predecessors who lived seven centuries ago were in law one and the same person, and what was given to the one was given to the other also." So much for this precious maxim of our laws—abhorrence of the perpetuity of Church endowments. But what did the right hon. Baronet think of corporations? Was not the very essence of a corporation perpetuity? at least it had been so held by every juridical or philosophical writer from the compilers of the Pandects down to this day. Let the right hon. Baronet get out of that difficulty if he could. But it should be remembered that this opinion of the right hon. Baronet was not given privately, but was expressed in the presence of other Ministers of the Crown; and yet not one of that right hon. Gentleman's Colleagues thought fit to rise and repudiate such a monstrous doctrine. It appeared in these days that Conservative progress and Radicalism, if not identical, were closely and intimately allied. Who would have expected to see this alliance so portentously illustrated, when, at the beginning of last December, the noble Earl (the Earl of Aberdeen)—whom he cordially believed to be the soul of honour, who never yet uttered a word which he did not conceive to be truth, or give expression to a principle which he did not feel—being called upon to state the principle of the 268 Government he was engaged in forming, said it might be defined, in one word, to be that of Conservative progress? Surely we had advanced a pretty long way when we had got to the destruction of religion in our Colonies; for he said we had got to the point of destroying the provision for religion in the Canadian Colonies, if the noble Earl's plans were to be adopted by the House. The noble Earl said that endowments were quite a different thing from religion. He (the Bishop of Exeter) entirely agreed with him; but though different things, they were to be combined, so that one should assist the other. He begged to commend to the noble Earl's consideration the authority which declared that "Kings were to be the nursing fathers of the Church, and Queens its nursing-mothers." He said the dictates of that divine authority clearly pointed out that it was a duty incumbent on every State to sustain religion by endowment, or by temporal provision. They knew that men could not do without such temporal provision. The aristocracy of this country could not be maintained without their broad lands; and the Church must have its modicum of support, or it could not proceed in the discharge of its spiritual functions. The noble Earl assented to that; and, in assenting to that, he did no more than declare his assent to the principle of the British constitution; for it was a fundamental principle of the constitution that the Church should be an established and endowed Church in this country. The compact between the Sovereign and the people, expressed in the coronation oath, bound the Sovereign to maintain the endowments of the true religion, not only in England and Scotland, but also in the territories thereunto belonging. Were they to be told, then, that religion and endowments were not only not the same, but entirely disconnected? He did not mean to say that no religion could exist without endowments, but he did say that, according to the ordinances of Providence, no religion could be effectively maintained in any country without a proper provision for its ministers. He should not scruple to avow the conviction he deeply and earnestly felt, that if their Lordships passed this Bill, they would, not by themselves but by others, be guilty of sacrilege, and sacrilege was one of those sins, not only most awful in its offence against God, but most awful in its results to the individual or the nation who com- 269 mitted it. He entreated their Lordships to bear in mind the terrible end of that Assyrian tyrant who dared to use the sacred vessels he had taken from the temple of Jerusalem for his impious revelries. It was in a hall gorgeous as their own, and in the proudest hour of his royal grandeur, when he was feasting with a thousand of his nobles, that words were seen on the wall, written by an unearthly hand, which told him that he had been weighed in the balance and found wanting—that his kingdom had passed away from him; and on that very night the fairest and greatest monarchy in the world ceased to exist. The right rev. Prelate concluded by moving, as an Amendment, that the Bill be read a second time that day six months.
§ Amendment moved, to leave out "now," and insert "this day Six Months."
§ LORD LYTTELTON
said: This question is so important with reference to those principles of colonial freedom which I have occasionally ventured to advocate in this House, that I hope to be excused for addressing your Lordships. I conceive that the question for us is to be decided on those principles alone. Whether these clergy reserves are, or were, in themselves a good thing, is a question which, certainly not being a Canadian, I would not presume to decide positively; but as well as I can judge, I should be disposed to answer it in the affirmative. That they in a great measure disappointed the intentions of those who established them, is quite true. What those intentions were, is by no means so clear as may perhaps be supposed by those of your Lordships who have not happened to look at the imperfect records of the debates of 1791. But whatever they were, it is certain they were, to a great extent, disappointed. That, however, I should attribute to mismanagement and error. Land appropriations, especially for religious purposes, after the example of all European countries, have been made in several of our colonies. In the colony with which I am myself connected—in several of the Australasian colonies—in the West Indies, and in others, such appropriations have been made, not without success. I would not go further than this. I do not say that they are necessarily the best system. It is for the governing body to decide whether they shall maintain the institutions of religion in that or in some other manner. Whether the governing body shall abstain altogether from making any such provision, is another question. I have no hesitation 270 in saying that a governing body does not do its duty which does not see to the maintenance of the ministers and the offices of religion. But the question here is, what is the governing body? Now I would first consider this question in the general and abstract way, without adverting to the circumstances which are supposed to fetter the discretion of Parliament in dealing with the matter. When we say that this is a point which, as being entirely local, is not for us, but for the Canadian Legislature, to decide, we are told that, if so, we had as well give over everything to them, and leave the connexion of Canada with England as that of Hanover was till a recent period. This view proceeds upon an entire neglect of that great principle which I am not aware that the noble Earl (the Earl of Derby) has everadmitted—which I know the noble Earl below (Earl Grey) always combated—but which the right hon. Gentleman (Sir J. Pakington) admitted in theory, in his recent despatch to the Australian colonies, while accompanying it with doubts, which I believe to be unfounded, as to its practicability—which has been allowed, though, I confess, in rather too cold and reserved a manner to please me, by the present Under Secretary for the Colonies—which has been set forth more ably and fully than by any one else by the present Chief Commissioner of Woods—and which I hope to hear enunciated on a fitting opportunity by my noble Friend (the Duke of Newcastle)—namely, that it is possible, once for all, to discriminate between subjects of imperial and of local interest. I am not going into that general subject. But this I say, that no such division ever could be made by any one, that would not include the question of religious endowments among subjects strictly local; and if, as such, it is a matter for the local Legislature to decide, it is one which not only they should be allowed, but which they should be called upon, to decide. I say this because I observe that in a despatch of Lord Glenelg's it is said that in case of the Canadian Parliament desiring that the question should be settled at home, there would be no objection to its being so. I am not so sure of that. The objection would no doubt be diminished; but on the whole I should be inclined rather to agree with Lord Durham and with the several Secretaries of State to whom my noble Friend (the Duke of Newcastle) has referred, that Parliament ought to have declined to undertake to settle the 271 matter. According to this, I should say that the Act of 1791 was wrong in this respect; and I should say the same of the Act of 1840, though, no doubt, after the strong expressions of Lord Sydenham, and other Governors of Canada, and the entreaties of the Canadian Legislature, that Parliament would settle the matter instead of themselves, it was at least an excusable error. That such questions were left to the colonies in the early days of our colonial empire, is quite certain. I suppose that if ever there was a time when the Church of England at home was in a palmy state, and most guarded with exclusive rights and privileges, it was in the time of James I., the early days of Charles I., and Charles II.; and yet in those very days, Maryland was given over to the Roman Catholics, Pennsylvania to the Quakers, New England to the Puritans, and, somewhat later, I regret to say, New York to no religion at all, as far as public provisions were concerned. This appears to me the general case for the Bill. The Colonial Legislature may do wrong in such a matter; but Parliament does not undertake simply to prevent their doing wrong, but their doing wrong only within certain limits, within which this case does not fall. I will now advert to some objections taken, not from the history of the case, but from the nature of the case. The awful word sacrilege is used; and so awful a thing that is, that I would not lightly say—I would not deny, but I would not lightly say—that in case of a Colonial Legislature proposing to do, or doing, what could be clearly and irrefragably shown to be a sacrilegious act, it might not be the duty of Parliament to interfere, having the power to do so. But I am prepared to contend that the alienation of Church lands is not necessarily sacrilege, but is to be decided to be so or not according to circumstances, and by the discretion of the governing body. A legitimate instrument in reasoning is the putting of an extreme case; and if it is so when the extreme case is only a possible one, I presume it is still more so when it is one which has actually happened. I will take the case of this country. According to the most learned authorities, there was a time when of the whole soil of England not less than one-fourth—according to one of the most learned of them, Sir H. Spelman, I believe it is said that nearly one-half—six-thirteenths I have seen it reckoned—was Church land. I say nothing of the man- 272 ner in which that land may have been alienated; but is it possible for any one to contend that the whole of it was for ever to remain so appropriated, under the awful penalties denounced by the right rev. Prelate? I can quote a still higher authority—one to which all your Lordships will defer, and especially the right rev. Bench—that of Bishop Butler. Bishop Butler was once consulted by a scrupulous-minded owner of alienated tithes—a kind of property to which some at least of your Lordships will not readily admit that the guilt of sacrilege necessarily attaches. It is evident that the case of tithes is the strongest that could be named; and as to this, too, Bishop Butler stated his opinion to be that they could not be held essentially inalienable, but must follow the discretion of the governing power, and the course of law. Well, we are referred to the coronation oath. The words of that oath are to this effect, that the Sovereign shall maintain all the rights and privileges of the bishops and clergy which they now have, or shall have, by law. These are very large words. I shall content myself with observing that if they are to be held to mean that no part shall be touched of the temporalities of the clergy in any part of the Empire—and this is a question not of degree, but of principle—they prove a great deal too much. What has happened in another colony—South Australia? There, as in this case, there was a legal provision for the clergy which the local Legislature could not touch, and Parliament had reserved to its own control. Parliament gave up this power, and the first use which the South Australian Assembly made of its liberty was to sweep away all religious endowments whatever, and fall back on the voluntary principle. I regret this; and I may observe, in passing, that, like almost every one else, I hope that the Canadian Parliament will preserve these appropriations. It is only for the sake of argument that I assume that they may secularise them, as the extreme case, which, of course, any lesser case would follow in the way of inference. I say we may disapprove of what South Australia did; but I never heard any one say that the coronation oath would compel its disallowance, or any other obligation on this country such as has been referred to. Now, to advert to these more prominent objections to this Bill, relating to the history of the case; and, first, to that which is undoubtedly the weakest of them all, that the Act of 1840 was a final measure. 273 I must say that this objection appears to me to proceed upon as great a confusion of thought as can be imagined. How is it possible that the essence of an Act of Parliament can be that it should be final? The Act itself says nothing about its being final, except in its preamble, which recites that it is desirable that the question should be finally settled. Could any rational being doubt that for a moment? But that indicates nothing but the wishes and intentions of its framers. No Act can be final in the sense here contended for. We may speak of the Act of Settlement, of the Roman Catholic Relief Act, or other great statutes of that kind, as final measures; but that is because we are looking back upon them—and the course of events has proved them to be so—as having been accepted by the country. In this case the Act was not a final one, because it has failed to prove so—because it has not been accepted as such by those whom it concerned. A doubt is thrown over this question by the peculiar way in which it is said that the faith of the Crown, or of Parliament, or of the country, is pledged to the maintenance of those appropriations; and I am willing to admit that this is the only colourable plea for opposition to this Bill. But I conceive that it, too, is founded on a fallacy—the fallacy of supposing that public faith can be pledged to an institution as it can be to individuals. No one doubts the latter case, or that that faith should be maintained at all hazards. But the distinction is one which has always been held. Public measures are passed, and the vested rights of individuals, and of them only, are always provided for. The present is a similar case; and the case of the Australian Church Acts, to one of which I have already referred, is, in principle, quite the same. Then we are threatened with certain consequences. It is said that this measure will endanger the principle of all religious endowments, in this country and elsewhere. Ireland, I apprehend, is at the bottom of many of the fears and forebodings on this question. Now, the question ought not to be complicated by the importation into it of remote and uncertain possibilities like this. Strictly speaking, the case does not arise; for I have denied that the Imperial Parliament would itself be the agent in this matter, as being out of its proper sphere. But, besides, the two instances are quite different. The ground of this Bill is, that the sense of the people of Canada, expressed through their legiti- 274 mate organ, may be opposed to religious endowments. In this country the great majority of the people are in favour of such endowments, and upon that they rest; and we may be very sure that if ever the sense of the people becomes opposed to them, it will be a very vain attempt to try to maintain them. We are appealed to on behalf of the churchmen of Canada. I, for one, refuse for a moment to listen to that appeal. Who are these churchmen of Canada? As setting themselves against their fellow-colonists on a question of internal policy, and which is to be decided by their collective voice, we do not know who they are. As an individual, I know them well; and I believe that in all our colonies the members of our Church are as the salt of the land, and to them I look far more than to all others for the perpetuation of our institutions throughout our Empire. But as a Member of Parliament, and for the present purpose, I do not know them. Still less can I admit the appeal, which, to me, I must say, is an offensive one, urged by those who call themselves the loyal party in Canada. No party has a right so to address us, as distinguishing themselves from their fellow-subjects. The colony, as a whole, has a right to look to England for protection, for acts of grace, and of munificence; and I recognise no other organ by which it can address us, but the legitimate constitutional one which we have given to it. My Lords, these colonies are bound to us by the strongest, and at the same time, if I may so speak, the most sensitive bonds of affection and of pride. Not, indeed, a little—a great deal would be required to destroy those bonds; but a little will impair and weaken them, as a very little, a very few words, will strengthen them, and draw them closer. I was told the other day, and I heard it with the greatest interest and pleasure, by an hon. Member of the other House of Parliament, that, in an interview he had with some leading Canadians, he used the very simple expression, in speaking of our North American provinces, "the Transatlantic portion of the British Empire;" but he told me that the expression, simple as it is, was dwelt upon again and again by those men with the greatest delight, on account of their hearty recognition of their equal rights as our fellow-subjects. Upon this principle our early colonies were founded. Unhappily, this country did not long adhere to it; but the charters of those colonies are an imperishable record of the 275 principles of their first foundation. We lost the best portion of them because we abandoned those principles. Almost within the memory of all of us those principles have been revived and acted on, in some good measure, with the happiest results. The opposition to this Bill invites us to a signal act of retrogression in that course, in the case of the most flourishing, the most free, the most attached of our colonies. I have no fear that this, any more than the other House of Parliament, will countenance that opposition.
§ LORD ST. LEONARDS
said, that the House should first ascertain how the question of these clergy reserves really stood. The Bill before them insisted upon what was directly contrary to law and practice. Both on its introduction and on its third reading in the other House, the Under Secretary of State had overlooked that fact; and so also had the right hon. Gentleman the Chief Commissioner of Woods and Works, who was more conversant with the details of colonial policy than the arrangement made by the Statute law with regard to those reserves. The first Act relating to those ecclesiastical endowments was dated so far back as 1774. That Act provided that the Roman Catholics of Canada might exercise the rites of the Romish religion, and declared that their church should retain all its revenues, that is to say, their tithes, and to receive their accustomed dues so far as they were in the hands of Roman Catholics, and except in so far as those tithes were payable by the Protestant occupiers of the land. The same Act provided that the rest of those tithes, that is, the portion of them arising out of lands in Protestant hands, should be at the disposition of the Crown for the benefit of the Protestant clergy. There it stood; and since that time the rights of the Roman Catholic clergy had never been disturbed. In 1775 and in later years the Crown issued instructions by way of letter to the Governors of those colonies directing them to dispose of the lands—they would not permit the Roman Catholics to receive the tithes of lands occupied by Protestants—and these lands were to be appropriated for the maintenance of the clergy of the Established Church within the lower Province; that was complied with, and so the matter stood till the Constitutional Act of 1791, and that their Lordships knew was intended as a great constitutional settlement. It failed because the colony had not shown a disposition to receive a constitution like 276 that country. That Act did not justify the statement of the noble Duke (the Duke of Newcastle) and his Colleagues: it simply recited the Act of 1774, and the letters issued by the Crown, and then directed that, as regarded the tithes, the subject of that Act, they should be liable, subject to that Act of Parliament, and subject to the letters, to be dealt with by the Governor in Council, and with the assent of the Crown, under the restrictions thereinafter contained. It then proceeded to recite the message from the Crown, stating the desire of the Crown to form a perpetual fund or provision for the Protestant clergy of the province. In order to provide that fund, it gave power to the Crown, that in respect of such allotments there should be an appropriation of one-seventh, and that as regarded all future allotments there should also be one-seventh set aside to be called the clergy reserves. The effect of that was a power given to the Crown to make this a perpetual provision—out of what? Out of the Crown's own land—out of the Crown's own revenues—not the property of any man or body of men, but property which by law, by right, and by the constitution, belonged as fully to the Crown as the property of any Peer of that House belonged to him. In no other way could the colony acquire that right except by a grant from the Crown. Could there be a wiser thing if it were right at all to provide for religion, than that the Crown, out of its own domains, should make that grant? Undoubtedly, as the plan was subsequently carried out, it was a bad one, and from that had arisen all the difficulties that had ensued, and which had made the question the burden and the pest of the country. The reservation of the land had had a bad effect, wherever the country had been allotted and brought into cultivation—the reserve land remained a waste, a bar to every improvement, and a burden to the country:—it was not saleable, and the clergy had no means of cultivating it. The Constitutional Act provided for the creation of rectories, and some forty were established of little value—not more than 39l. each on an average—and although great efforts had been made to get rid of them these efforts had hitherto failed. The House should now consider how the case stood under the Act of 1791 as to the power of the Crown, as to the power of the clergy, and as to the power of the Imperial Parliament. The Act of 1791, by Section 41, gave to the colony—the Governor and 277 Council and Assembly—with the assent of the Crown—the power of repealing or altering the provisions then made respecting the clergy reserves and the erection of rectories, but "under the restrictions thereinafter provided." The noble Duke (the Duke of Newcastle), and others who took his view, omitted to go on and look into these restrictions. There was this provision in Section 42, that if any Bill should pass the Canadian Legislature which should affect the Act of 1774, or the tithes, or the clergy reserves, or the rectories, or the ecclesiastical establishment, or its rights, the consent of the Crown should not be given by the Governor, but the Canadian Legislature should present to him an address praying him to send the Bill to this country to be laid before the Imperial Parliament, and the Imperial Parliament might exercise its discretion upon the matter. Section 42, therefore, gave to either House of Parliament not only the control over the Colonial Legislature, but over the Crown; it was a veto upon the power of the Crown. So important was it thought by our ancestors to preserve the religious establishment, that they would not give the Crown the power of making any alteration in these endowments. Could any other safeguards have been devised than those which were adopted? and were all these to go for nothing? His (Lord St. Leonards') object had been to show how the matter then stood, and to contradict the statements that, under the Act of 1791, the Colonial Legislature had the power of dealing with these reserves. Now, it was said that if Parliament passed the Bill now before it, it would place the Protestant clergy on the same footing with the Roman Catholic: that he entirely denied. And what had been done under the Act of 1791? The Crown desiring the establishment and support of that religion and that Church, the existence of which in Canada some now seemed disposed to deny, proceeded to create the Canadas into a diocese, and bring them in communication with the archiepiscopal see of Canterbury; and the letters patent expressly referred to the clergy reserves, and based upon them the foundation of the see of Quebec. He had told their Lordships how the matter stood as regarded the tithes of the Roman Catholic and the Protestant Churches. The Roman Catholics had never been disturbed in their rights; but in 1823 the Provincial Legislature, upon the ground of provision having been made by the clergy reserves for the Protestant 278 clergy, abolished the tithes as far as they were concerned, taking advantage of the provision which Parliament was now asked to place at the mercy of that Legislature. The Act of 1791 did not attempt to stop legislation; there was no attempt at finality—no attempt to say "this shall remain for ever;" but, legislation being allowed, certain checks were provided against the abuse of that power, so as to preserve the clergy reserves at all times as a provision for the Protestant clergy. But it was found that there was inconvenience arising from the dispersed state of the reserves, and the impediments to agricultural processes and improvements, and an Act of Parliament was passed in 1827 giving power to the Crown to direct a sale of the reserves, directing that a proportion of one-fourth of the proceeds should be applied to the improvement of the remaining portion, or wholly for the purposes for which the original reserves were appropriated, and for no other use, or intent, or purpose whatsoever. If the recognition of the Colonies, if the sanction of the Imperial Parliament, if the power of the Crown, and the consent of the Crown were to be of any avail, how could any title stand more secure? If it were the title of a private individual, and not of the Church, it would be felt to be so monstrous a violation of right that no man in that House would endure that it should be questioned. It might be all very well now to proceed to strip the victim, but the appropriation of the spoils, he would venture to say, would be a more troublesome task; and he was satisfied that if the Bill passed, it would create more difficulty, and dissension, and animosity in the Colony, than almost any other measure that could be framed, In 1839 the Colonial Legislature passed a Bill in order to clear up doubts as to the disposition of the clergy reserves; they then vested them in the Crown, and absolutely discharged the Colony from all trust and responsibility beyond the general purposes of public worship and the spread of Christian knowledge. At that time the Canadian Legislature, so far from desiring to have a control over the funds, resolved to place their disposition in the hands of the Crown. The Crown refused to accept the disposition of those funds; Lord John Russell intimating his opinion that it was not within the Constitutional Act to do so. The Act, therefore, fell to the ground. In 1840 another Bill was passed by the Canadian Parliament, authorising the sale of all the Canadian re- 279 serves, and appropriating one-fourth to the Protestant clergy, one-fourth to the Scotch Church, and the rest to the other Christian denominations. The question then arose whether the Canadian Government, even with the assent of the Crown, had the power of passing that measure. This point was submitted to the Judges, who pronounced that they had not; and that they had assumed a right over the reserves which they did not, in fact, possess; and, in his opinion, the decision pronounced by the Judges was strictly conformable with the law and the constitution. Now, if ever there was a compact entered into by any nation to preserve the property of a Church, it was the compact of the year 1840 which followed. There was an anxiety to meet the wishes of the Canadian Legislature, which was not then to be pacified except by a sacrifice of part of the rights of the Church. The then Archbishop of Canterbury was a party to the arrangement, and all the great men of the day were called in; and they agreed at last to carry a measure as nearly as the law laid down by the Judges would permit, which should meet the view of the Canadian Parliament; and upon the consent of the Church, given by the Archbishop, an Act was passed. What followed? It was anticipated that, the proceeds being so small, there might not be enough derived from the reserves to provide even the most moderate stipends for the clergy. The Consolidated Fund was, therefore, pledged by the Imperial Parliament as a guarantee to make good to an amount specified what the clergy reserves to be allotted to the English and Scottish Churches might at any time fall short of. Could the Canadians say that was not a benefit—to put an end to a controversy, and have an absolute provision for the clergy of the two Churches there? If a third party came in, as the Imperial Parliament did, and gave such a guarantee, could it be said this was not a compact binding upon all parties? The Act of 1840 began with the Act of Union, which repealed all the provisions of former Acts of Parliament relating to the Governor and Council; but the parts which were repealed in no respect affected the reserves of the clergy. It then went on to provide how new laws should be made, and in what manner the Royal assent should be given to those laws; and Section 42 of that Act happened, singularly enough, to contain the very thing which the 42nd section of the Constitutional Act of 1791 contained. 280 It was to the effect that in case any Bill were passed by the Canadian Legislature touching the Roman Catholic tithes or the Protestant clergy reserves, or anything relating to ecclesiastical establishments, the Royal assent should not be given to the Bill until it had lain on the tables of the two Houses of the Imperial Parliament for thirty days; and if either House refused its concurrence in the measure, and addressed the Crown upon the subject, the Crown was restrained from giving its assent thereto. The fact was, therefore, that the power still remained with the Imperial Parliament to stop altogether the action of the Canadian Legislature in dealing with these reserves. The noble Duke had told their Lordships that at present they were maintaining a law which provided for Roman Catholic establishments. But it was no such thing. The Act of 1840 simply provided that, out of the reserves to be sold under the Act of 1827, the obligations of the Crown to any religious denominations should be performed in the first instance. Well, it turned out that one of these obligations was an annual payment of 1,600l. to the Roman Catholic clergy in Canada, in consequence (said the noble Duke) of their having lost some tithes; but they had lost no tithes, so far as he (Lord St. Leonards) was aware of, except those which they did not gain by the Act of 1774; and that Act gave them all the tithes of their co-religionists, but not of the lands occupied by Protestants. The noble Duke had said that chap. 78 had no connexion with the Act of Union; but that was not so. They were two parts of the same transaction. Now, the Act directed the reserves to be sold, and it made this distinction in consequence of the opinion of the Judges that the reserves sold or to be sold under the Act of 1827 should go thus: two-thirds to the Protestant clergy and one-third to the Scotch Presbyterian Church; but as to the rest, to be sold under the Act of 1840, the Church of England was to take two-sixths, the Church of Scotland one-sixth, the remaining half to go for purposes of public worship and religious instruction, according to the discretion of the Governor in Council. While defending the interests of the Protestant clergy, he would strenuously oppose any attempt to destroy the rights of the Roman Catholics. The Under Secretary for the Colonies, in the other House, intimated that the Government was not indisposed to get rid of 281 the 44th section of the Act of 1840, which was as much to say, "While we are pre pared to destroy the rights of the Protestants, we are equally ready to destroy those of the Roman Catholics." Now, he ventured to think that the Government would not dare to take this course—first, because it was wrong; and, secondly, because the Roman Catholics would not submit to it. The noble Duke had said over and over again that this Bill would place the Protestant clergy on exactly the same footing as that on which the Roman Catholic clergy now stood. That was a gross mistake. Pass this Bill and you empowered the Canadian Legislature at once to deprive the Protestant clergy of their property; but it could not deprive the Roman Catholic clergy of their property without sending a Bill over to this country for that purpose, which must lie on the tables of Parliament for thirty days, and might be disallowed by the Crown at any moment within that period. Would their Lordships sit quietly by and see the rights of the Protestant clergy destroyed, while those of the Roman Catholics were preserved? Would such conduct be becoming in a Protestant Legislature? He perfectly understood the propriety of maintaining the rights of the Roman Catholics; but whilst he was ready to maintain those rights, he was equally prepared to maintain the Protestant clergy in their rights. Let it be remembered that, by the Act of Union of the two provinces, the Roman Catholics were enabled to vote upon the question of these Protestant clergy reserves; and that, by their means, a measure had been passed by means of their votes for committing the property of the Protestant clergy to the care and protection of the Canadian Parliament. Now, after the taste of the first fruits which would have been acquired by the destruction of the Protestant clergy reserves, and an end was put to the payment of tithes to the Protestant clergy, did they suppose that the Canadian Legislature would be long before they helped themselves to the Roman Catholic tithes, and the Roman Catholic endowments as well? In the course of the discussion respecting this measure, much had been said about finality. As regarded human affairs, generally speaking, he could not understand the applicability of the word; but this, at least, was certain, that men who entered into a contract were bound to adhere to it. The law might reverse it, but no one who was 282 a party to it could do so without violating the principles of morality. If human arrangements were not to be binding to this extent, what was the use of laws, and what security could there be for property? If ever property was settled finally for a particular purpose, it was the clergy reserves. He must say he had listened with astonishment to the argument which had been addressed to them that night, to the effect that as the Act of 1840 had taken a portion of the property from those to whom it belonged, and given it to others to whom it did not belong, therefore it was a mere question of degree; why not then proceed to take a little more? According to that argument there could be no such thing in the world as a compromise of rights; because all compromises of rights rested upon this basis—that each party to the arrangement gave up something for the sake of quietness and peace, and for establishing and securing future rights; but what could be thought of the morality of those who, having persuaded a person to surrender a part of his rights, should then turn round upon him, and found upon that circumstance a claim to the whole? It had been admitted by a Committee of the Colonial Legislature in 1846 that the Act of Union was intended to be a final settlement of the question, and had been accepted by the Canadian Parliament as such. That the Imperial Legislature might repeal the Act of Union if they pleased, there was no doubt whatever. Nobody disputed their power; but would it be just to exercise that power? On a former occasion he had heard a right rev. Prelate speak of the necessity of giving the Canadian Legislature control over this property as a matter of right and justice. The clergy reserves belonged to them as much as they did to the Canadian Legislature. The property was settled; it never was the property of the Legislature of Canada. If their right followed from the free constitution which was given to them, why was not the right transferred to them when that constitution was granted? He should deeply regret the separation of the colony and the mother country, which had been hinted at; but if the Imperial Parliament yielded up the rights of which they were the sacred repositories, they might depend upon it that the respect entertained for the mother country would cease; and that, instead of more firmly securing the union, they would take the most effectual means of terminating it. One would think, 283 from all that had been said in support of the Bill, that its opponents were interfering with the right of the Colonial Legislature. But what was the fact? Why, that the right was not in the Parliament of Canada. The property, he repeated, was settled, and belonged as much to the Protestant clergy of Canada as his (Lord St. Leonards') house did to him. Let not their Lordships he misled by the idea that they were only dealing with the property of a small class. They might rely upon it that the rights of property must be preserved universally, or not at all. The noble Duke had stated that the Act of 1840 withdrew the clergy reserves from the operation of the Constitutional Act of 1791, and that the opinion of the Government was, that they ought to be restored. Restored! What could the noble Duke mean by that? The Act of 1791, as regarded the clergy reserves, was not a Canadian Act, and the question was simply, whether they should now repeal an Act of the Imperial Parliament, and give the clergy reserves to the Parliament of Canada; not whether they should restore to the Canadians a right which they never possessed, but whether they should now take the property of the Church and transfer it to the Canadian Legislature. It was notorious that the Canadian Legislature meant to secularise this property. The right rev. Prelate said on a former evening that he would not be a party to an act of spoliation; but why did he propose to transfer to another hand the power of doing that which he shrank from himself? In conclusion, he called upon their Lordships to reject a measure which violated the principles of justice and morality, and set a precedent for subverting the rights of property, of which there are many persons in this country who would not be slow to avail themselves; but, on the contrary, to protect the rights of the Protestant clergy in Canada, and prevent the passing of a measure which was, in truth, nothing else than an act of spoliation.
The BISHOP of NORWICH
was understood to say that he intended to vote for the Bill, because he regarded it as the fulfilment of the pledge which had been made by the British Legislature to the Legislature of Canada, as to the policy they considered it right to pursue with respect to colonial government—namely, that the colonies should be allowed to regulate their own internal affairs. His main reason, however, for supporting the 284 measure was, because he believed he was thereby best serving the interests of the Church in Canada, though he regretted that, in coming to that conclusion, he was altogether separating himself from several of his right rev. Brethren, as well as from many other friends of the Canadian clergy, who believed that he was adopting a course most adverse to the true welfare of the Church. Should the measure pass, what may be the result on the Church in Canada must be left to the Canadian Legislature. They, not the British Parliament, would be responsible. The proper course was, for their Lordships to discharge what they believed to be their duty, and to leave to the Canadian Parliament to discharge theirs. It had been assumed as certain that, if this measure passed, the Canadian Legislature would alienate the clergy reserves; but he thought the evidence was not sufficiently strong that they should possitively assert this. What is said is, that the Roman Catholic members of that Legislature, who had undoubtedly acquired great influence in it since the union of the two Canadas, would use that influence to procure the secularisation of the Canada reserves. This is strongly put forth in a letter written by a right rev. Prelate (the Bishop of Toronto), whose local position as a Bishop of the Church in Canada gave weight to his views on the subject. But the right rev. Prelate, in that same letter, supplies an argument against his view. His words are—"The day would speedily arrive when the same measure would be meted out to the Roman Catholics, when their property-would be disposed of in a similar way." There can be no doubt that the secularisation of the Canada reserves would be contrary to the interest of the Roman Catholic Church. If the Roman Catholics of Canada should use their power to secularise the endowments of the Protestant Church, they could not look forward to their Lordships putting a veto upon any measure which might be passed in accordance with the precedent, for secularising the endowments of their own Church. But he did not believe the Canadian Parliament would commit so unjustifiable an act as secularising the Protestant clergy reserves. We must look, too, to the probable effect on Canada of refusing this measure. The Canadas were in so advanced a state that some time since there was a talk of a movement for annexation or independence; a sentiment of loyalty, however, existed in the colony, which was a surety for the continuance of 285 the connexion for some time, at all events, with this country. But their Lordships could not ignore what had taken place; and although this measure, if it did not pass, might not exactly be a casus belli, yet its rejection would cause considerable exasperation between Canada and the mother country. And here it was necessary to refer to that part of the Bishop of Toronto's letter in which he said, that, in passing this Bill they were "disgusting the loyal and Conservative party in Canada." But he (the Bishop of Norwich) would wish to know how would the adoption of the contrary course operate upon that portion of the Canadian community which was not held to be so loyal and so Conservative? What would be the consequence to the Church, supposing that a contest was entered upon between the colony and the mother country? What would be the result if, after a time, the Colonial Legislature should have the disposal of these reserves, either by the concessions of the Imperial Parliament, or from other circumstances? The result would, of course, be, that they would exercise their power in a spirit of hostility to the Church, which did not now exist. Having adverted to the possibility of Canada becoming one day independent, he, for one, could not look forward to that event as being necessarily a calamity. He believed, on the contrary, that the wisest policy which this country could pursue towards her colonies was to recognise this prospect, and to deal with them as if they would one day naturally become separate and independent nations. It was not sufficient that we should give our colonies the same laws and the same institutions, civil and ecclesiastical, that we ourselves possessed. We were bound to do more, and gradually to accustom them to control themselves, to legislate for themselves, and to adapt the laws and institutions which they derive from us to their growing and changing wants. But, whether the separation of Canada from the mother country was calamitous or not, he would ask how would the Church gain in case their Lordships exasperated the Legislature of Canada against it by the rejection of the Bill? He had always considered that it was from the original legislation upon this subject that all the mischief and inconvenience attendant on the measure had proceeded. And without meaning to say that the intentions of the framers of the Act of 1791 were not founded in wis- 286 dom, still he was bound to say that the measure had been carried out in a manner so mischievous to the colony and to the Church, that, whether the reserves were ultimately to be alienated or not, the Church of Canada would be in a worse position than if the reserves had never been granted. While, then, he admitted the justice of handing over these reserves to the disposal of the Canadian Legislature, he believed that it would be both unwise as well as unjust on the part of that body to proceed to their secularisation; but should they do so, he maintained that though the Church of Canada might not have a legal claim, it certainly would have an equitable claim for compensation upon the Legislature of this country. Upon these grounds, he should give his vote in favour of the Bill now before their Lordships' House.
§ The EARL of DERBY
My Lords, I should recommend the right rev. Prelate, who has just sat down, to dismiss altogether from his consideration the last topic which he has urged upon your Lordships, and on which he seems not a little disposed to rest the vindication of the vote which he is about to give—a vote calculated, as some of your Lordships earnestly believe, to strip the Church in Canada of its possessions. If the right rev. Prelate imagines that Her Majesty's Government could hold themselves bound to grant an equitable compensation to the Church in Canada—or that the Church in Canada would have a claim upon Her Majesty's Government for any such redress, in consequence of losses arising from the passing of this Bill, then I say, my Lords, that the prudent course for the right rev. Prelate, before giving his vote in furtherance of this Bill, would be to ascertain from Her Majesty's Government—which I suppose he might easily do—how far they will be disposed to answer the sanguine expectations which he has formed of their willingness to grant compensation for any injustice that may be sustained by the Church in Canada from the passing of this measure. And, my Lords, I feel quite sure that the right rev. Prelate's own sense of justice would quite satisfy him, in the event of that answer being of a negative character, that it would be quite impossible in him to reconcile his vote of to-night with a due regard to his conscientious feelings—a vote recorded with the perfect conviction that, though the Bill would entitle parties to an equitable compensation, there was no 287 chance of an equitable compensation being obtained. My Lords, I do not rise for the purpose of protracting this discussion; for, so far as the argument against the injustice—against the very nature and character—of the Bill as it has been presented to us by Her Majesty's Government is concerned, the able and the powerful speech of my noble and learned Friend (Lord St. Leonards), has so completely exhausted the subject, that it must have carried conviction to every Member of your Lordships' House, so much so, that I feel any attempt on my part to expatiate on his argument would only weaken its effect. My Lords, my noble and learned Friend has demonstrated beyond the possibility of dispute or cavil that the property, with regard to which we are now about to legislate, never was for one single moment at the disposal of the Canadian Legislature, or in any way subject to its jurisdiction. And, my Lords, to address myself to that point, it is perfectly certain that the clergy reserves, previous to 1791, were the property of the Crown by right of conquest; nor is it in any way a matter of less certainty that they were afterwards appropriated by the Crown for the maintenance of the Protestant clergy; and, to a certain extent, a certain power of dealing with that appropriation was given to the Legislature of Canada, which they could not otherwise have possessed, under the Act of 1791; and all the power which they had ever exercised over those reserves was a power strictly limited, and which was conferred upon them by the Act of 1791. Setting out, then, from the Act of 1791, under the limits and under the restrictions imposed by that Act, which remained in full force until the Act of 1840, whatever power since then the Canadian Legislature possessed over those reserves was strictly and accurately defined. It is, therefore, from 1791—not denying the succession of restrictions upon the inherent power of the Canadian Legislature—that their Lordships must trace the series of concessions made by the Crown and by Parliament, in whom the domain of the reserves rested, to the Canadian Legislature, at their own pleasure, and subject to such restrictions as they pleased. And, my Lords, this view of the case appears to me to decide summarily and conclusively the claim of right—I mean the claim of strict legal right—put forward upon the part of the colony. Well, my Lords, the claim of right having been disposed of, and disposed 288 of as I think conclusively and absolutely by the arguments of my noble and learned Friend, the only grounds on which the question can be strictly argued is the policy in regard to these reserves. It certainly, my Lords, might be the policy of this country to grant to the Colonial Legislature still greater power than they have ever been granted as yet: it is the right of the Imperial Legislature to withhold the concession of any greater powers; but it must not be forgotten that in that case the powers which might be conferred—as the powers which have been conferred—are not conceded as the inherent right of the Canadian Legislature, but as the free grant of the Crown and of Parliament. But, my Lords, on the other hand, as I am speaking frankly, I will at once admit that, from the time when you conferred a representative form of government upon Canada—that still more in proportion as that colony advanced in intelligence and in wealth—that still more when its dependence upon the mother country must be considered rather nominal than real—I say, my Lords, that from that date it became essentially the policy of this country to keep a lighter and a lighter hold upon that colony with regard to matters of purely internal concern, and constantly to keep augmenting the degrees of superintendence which she was to exercise over her own affairs. I then say that if any concession is to be made, the extent of such concession is only to be limited, in the first place, by the nature of the interests involved; and next, by the consideration of that faith and honour which are due to third parties, that is, neither the British Parliament nor the Colonial Legislature. My Lords, I cannot admit what has been contended for by some—that the question of the appropriation of these reserves is absolutely a question of local interest alone. Now it appears to me that in this question great Imperial interests as well as great colonial interests are involved. When the Imperial interest and Imperial power are brought to bear upon the Roman Catholic and the Protestant establishments in the colony, I think it is difficult to contend that while the maintenance of Roman Catholic institutions of the colony is a matter of Imperial concern, the maintenance of your own communion and of your own Church in Canada is a matter of exclusively local concern, with which this Parliament has nothing whatever to do. But even in regard to the administration of the local funds for 289 the maintenance of the clergy of Canada, I should be desirous, so far as it is possible, to strain the point of strict right for the purpose of meeting what I believe is the anxious wish of a large majority of the people of Canada. For my own part, if I had the responsibility of introducing a measure for disturbing the settlement of the Act of 1840, which was undoubtedly intended to be a permanent and final settlement, I frankly declare to your Lordships that no consideration on earth—not even the chance, if there be a chance, of severing the nominal dependence of Canada on this country—could induce me to take a step which I could not reconcile to my conscience, and which I think is fraught with the most serious consequences hereafter. I would not, therefore, as a Minister of the Crown, think of disturbing the settlement of the Act of 1840. I would, on the contrary, have maintained that settlement as a compact solemnly entered into between this country and the Church in Canada—as a compact which, as a Minister, I was bound to uphold to the utmost of my power. To a certain extent the question, however, has been altered by the position which has been taken by Ministers in respect to it. I cannot shut my eyes to the fact, that, by two succeeding Governments, promises have been held out to give to the local Legislature a greater and more extensive control over those reserves—I cannot shut my eyes to the fact that a large portion of the people and of the Canadian Legislature is anxiously desirous of obtaining that power. I cannot shut my eyes to the fact—and it is an important fact—that in pursuance of the recommendation of Her Majesty's Ministers, the other House of Parliament have sanctioned to a certain extent the principle of this Bill, and have declared their willingness to entrust the Legislature of Canada with power over those reserves. I say, then, that seeing the question thus circumstanced, I am anxious to go to the utmost limit which I feel I can do without infringing those solemn obligations of honour and of good faith which ought to be dearer to us than any other consideration, and which, I trust, will never be disregarded by this Government or the country; but which, if they do disregard, sure I am it will not be long before they repent of it. I have risen, my Lords, now principally for the purpose of saying that in the peculiar condition in which we find ourselves circumstanced, I am anxious to find out the 290 possible means of escaping the necessity of meeting this Bill with a direct negative, and to go as far as good faith and honour will allow me in meeting the wishes of Her Majesty's Government. I am therefore prepared to present to you a proposition in Committee, if this Bill should pass a second reading, whereby there will be given to the Legislature of Canada more extensive powers than has been given them by the Act of 1791, but which will, at the same time, maintain inviolable all appropriations that heretofore have been made, not only upon the lives of any individuals, who have a secondary and an inferior interest in the matter, but maintaining as a permanent provision, be it for the Church of Scotland or for the Church of England, all appropriations which, either under the Act of 1827 or under the Act of 1840, have been allotted and solemnly given over, not to individuals, but to trustees, for the benefit of those Churches for ever. Maintaining these appropriations strictly and inviolably—I speak for myself alone when I say that I will waive all the great and serious objections I entertain to this Bill, and which would have prevented me were I a Minister from submitting it to Parliament—if I can obtain from the Government such modifications of this measure as should, at all events, declare that that which has been allotted under the authority of Parliament, by solemn compact, and by an Act under the sanction of the Crown, shall be held as inviolable, be it the property of the Church of Scotland or the Church of England—as if such were the personal property of any of your Lordships. I will not anticipate the arguments which I must necessarily use in bringing this proposition under your Lordships' notice. I am afraid that. I shall have to press this point upon your Lordships at some length in Committee. I make considerable sacrifice of my own feelings while, influenced by a spirit of conciliation, and a desire to meet the reasonable claims of the colonies, I make the present proposition. The colony of Canada claims to view this question as one of simply local interest; but I again repeat, that this question cannot be viewed as one of local interest, but of Imperial interest; for when arrangements have been entered into by the Parliament of England, and when funds have been vested in pursuance of these arrangements and on the faith and honour of the Legislature, to set them aside by the capricious acts of a ty- 291 rannical power, in subservience—no, I will not use that word—but in obedience to the unreasonable demands of a local Legislature, and to recall those obligations into which we have entered, cannot be matter of local, but must be of the highest Imperial interest. My Lords, I am anxious to have an opportunity of submitting this proposition to your consideration, should your Lordships be induced to give the measure consideration in Committee. I am afraid, however, my Lords, to cherish the hope and expectation that it would lead to peace upon this question, and not to fresh demands upon us. If my proposition be acceded to, I shall consent to waive my own grave objections to the measure, and consent to the second reading. If your Lordships, however, insist that this measure shall not only be prospective, but that it shall also be retrospective—that it shall violate those engagements which have been solemnly entered into; that it shall in effect plunder parties that are legally possessed of this property—then, I say, that no consideration on earth, not even the dismemberment of the Empire itself, will induce me to make such a sacrifice as to set my hand to a Bill of that description, and to say, "Content." Whatever the hazard may be, to such a Bill I shall say, "Not content."
§ EARL GREY
said, though the noble Earl who had just sat down had expressed a willingness that the Bill should pass in a modified form, and, after so important an announcement it was not likely that it would be rejected on that stage, still he (Earl Grey) felt it to be his duty to state the reasons which, in his opinion, rendered it highly desirable that it should pass in its integrity. He felt it to be the more necessary to do so because the noble Earl had not stated whether he intended to vote for the Amendment of the right rev. Prelate or not. He thought no ground had been shown for adopting that Amendment, and rejecting the Bill. The right rev. Prelate had entered into a long and able argument to show that the power of the Imperial Parliament was supreme over all local legislatures; but he used it against a proposition which not one of their Lordships—not even the noble Duke who proposed the second reading, and whose language was open to some misconstruction—had thought of advancing. No doubt Parliament had the right to interfere; but it was one thing to have strict legal right, and another to have justice in the exercise of 292 it. The supreme power of the Crown and Parliament should never be surrendered; but it should never be exercised but on imperial questions, and it was unjust and vexatious to use it in reference to merely local questions. He did not think the noble Duke was quite right in saying that if this Bill should pass, the Catholic Church would be left on the same footing as the Protestant Church. He apprehended that if the Bill now before them were to pass unaccompanied by any other measure of legislation, there would be, in strictness of law, this difference between the power of the Canadian Legislature over the endowment of the Catholic Church, and over that of the Protestant Church, that with regard to the former the Provincial Parliament would only possess the power of legislation subject to the condition that any laws they might pass would not be valid until they had been laid for thirty days before the Imperial Parliament, without being objected to by either House; whereas there would be no such restriction as to legislation affecting the Protestant Churches. But practically this difference seemed to him of very little importance, and the supposed advantage to the Catholic Church of no real value. If the Parliament of Canada, after secularising the property of the Church of England, should determine to deal with the property of the Church of Rome, the Bill they might pass would have to be sent over to this country, and to lie on their Lordships' table, and the table of the other House of Parliament, for the thirty days prescribed by law; but there was little chance of either House interfering by address to the Crown to prevent the final confirmation of such a Bill, so that substantially the power of the Provincial Parliament would be as unfettered in dealing with the property of the Roman Catholic as of the Protestant Church. But passing over this minor question, he must express his regret that the noble Earl (the Earl of Derby), who had been for several years Secretary of State for the Colonies, and recently at the head of Her Majesty's Government, had not told them what would be the probable consequences, in his opinion, of rejecting this measure. He begged to remind their Lordships that the right hon. Baronet who lately held the office of Secretary of State for the Colonies (Sir John Pakington) had not sought to conceal his conviction that the rejection of this Bill would involve the greatest risk to the connexion between this country and 293 Canada. He (Earl Grey) thought that the House might reasonably have expected to hear from the noble Earl whether he agreed in this opinion of his late Colleague, and what he anticipated as the probable result of the rejection of the measure. For his own part, he (Earl Grey) had endeavoured to trace out step by step the consequences which were likely to follow if the Bill was rejected; and the conclusion he had come to was this, that we should enter on a controversy with the Parliament of Canada, which never could be adjusted except by our concession sooner or later, and which could not remain permanently unadjusted without leading, by a few short and easy steps, to the separation of the colony from this country. It seemed to him beyond all doubt that this was the issue to which things must be brought by the loss of the Bill now before the House. There was in Canada the strongest feeling of injustice as to the existing arrangements; it was not a question of money, but of a great constitutional principle; it was whether or not the Parliament of Canada was to be prevented exercising one of the powers which they said legitimately belonged to them. He had no hope of their giving way on that point; he said more, they ought not to give way upon it. If that was so, how were they to carry on the government of Canada? Their Lordships knew too well to believe that the government of the colony could be carried on in permanent antagonism to the Legislative Assembly. Were they prepared to make the hopeless, he would say the wicked, attempt to govern Canada, in spite of her Parliament and the wishes of her people, by the authority of the Imperial Legislature and by force? No man would be insane enough to make such an attempt; and then there remained no alternative, if they rejected this measure, but to dissolve the connexion. The noble Earl opposite seemed to consider the dissolution of that connexion a light matter. Did he think it would be a light matter to the interests of the Church for which he was so anxious? Would the Church of England or the Church of Scotland be gainers, if by endeavouring to maintain this Act of Parliament, they caused the dissolution of the connexion, and left the Parliament of Canada to deal with the matter, without the slightest control on the part of the Government in this country? It was a quarrel into which we could not enter 294 with any chance of success, and from which we could not retire with honour. It was said, that whatever might be the result, even though we should lose Canada, we ought to do what was right. He fully admitted this to be true; if it could be shown that there was any obligation of duty binding upon the nation; if Parliament could not pass the Bill without violating the sacred rules of right and wrong, let it by all means be rejected. But before a course was adopted which even those who advised it did not deny to be likely to lead to so serious a result as the loss of Canada, they ought to be very sure of its necessity. As far as he could make out, two grounds only appeared to be suggested for the rejection of the present measure as one which could not be passed without a violation of the duty of Parliament: first, it was said that it was their duty not to neglect their interest in the religion of our fellow-subjects in Canada; and, next, that there was a compact by which we were bound in honour and good faith to maintain existing arrangements. With respect to the first ground, there was not one of their Lordships who entertained a stronger opinion than he did as to the impolicy of what was called the voluntary principle in matters of religion. Those most in need of religious instruction were generally those least sensible of their wants, and the welfare of every nation was concerned in having some public fund for their due instruction in the truths of religion. But experience taught him that if they forced endowments on a people contrary to their sense of right, they did more harm than good, and he would say nothing had more prevented the Church of Englaed obtaining its proper influence than the injudicious means used to extend it in former days. A right rev. Prelate, in the course of the debate, said, that by passing the Bill they would destroy religion; and several noble Lords, himself among them, having cried "No, no," the right rev. Prelate corrected himself by saying they would destroy religious endowments, as if they were the same thing. But the distinction between the two was obvious; and he (Earl Grey) firmly believed that if the passing of this measure were ultimately to result in depriving the Church of every endowment in Canada, for the real interests of religion it was far better they should pass this Bill. With regard to the second ground—the compact that was said to exist—he 295 should be glad to know with whom the supposed compact was made, and who would be injured by the infraction of it? There was no compact, as far as he was aware, with any individual, who could say he was injured by the passing of this Act. The existing holders of the stipends derived from these sources would not be affected by the Bill. The people of Canada would not be injured by it. All that the Bill purported to do was to give a power to the Canadian Legislature which it did not now possess. But he was told that an injury would be inflicted upon the Church of England and the Church of Scotland. He could not help thinking that the noble Lord, through the whole of his speech, had been led into error by making use of the language, "rights of the Church," as if the Church was not a mere abstraction, but was some embodiment capable of possessing and exercising rights. This was a fallacy. The Church, so far as it was a body capable of holding property, was a great national institution—the creature of the governing power in every country, and over which the governing power, whatever it might be, necessarily retained an authority, its existence resting upon its usefulness. The phrase, "property of the Church," was often used, but it was extremely vague language, and when they came to deal with that property practically, they soon perceived a distinction between the property of an individual, and property set apart for great national uses. It was not 400 years ago since the whole of what now constituted the property of the Church of England was enjoyed by a rival Church. Undoubtedly, 400 years ago the Roman Catholic Church was in possession of that property. He knew it was argued that this possession was itself a usurpation, as tithes had originally been set apart for the maintenance of a purer national church, which the Reformation merely restored. He would express no opinion as to how far this argument was well founded in fact, since, at all events, it certainly did not apply to the whole property of the Church. A very large portion of those estates which now constitute that property had been given to the Roman Catholic Church by kings, princes, and great feudal barons, long after that Church had adopted the doctrines and the practices which it still retained, and which Protestants abjured; indeed much of the property was given by the donors expressly for the purpose of having masses 296 said for their souls. But in process of time it came to be considered by Parliament that this property ought to be better applied for the benefit of the people, and it was taken away from the Roman Catholic Church, and conferred upon our present Establishment. ["No, no!"] He was at a loss to know what that "No, no" meant. He believed that the property of the Church was dealt with in the manner he had described. But in later times they had done much the same thing. The noble Earl opposite (the Earl of Derby) brought in a Bill in the House of Commons, and which was now law, by which about half the Irish bishoprics were extinguished. They had done something not very unlike it in this country, by establishing a Board of Ecclesiastical Commissioners, who had the power of redistribution of the property of the Church. Now the right to redistribute the Church property argued also the right to apply it to a different purpose if necessary. Would any man say that it would be consistent with a due respect for the rights of property for Parliament to pass an Act redistributing the property of the Members of their Lordships' House? Would it be less an act of spoliation to take the property belonging to their Lordships individually—to make it a common fund, and divide it equally? Would this be less unjust to the owners of large estates than more direct confiscation? It was clear, therefore, that by the measures Parliament had adopted, a distinction had been recognised between the property devoted to the support of the Church, and private property. The truth was—and let them not seek to disguise it from themselves—that the real security of the property of their own Church rested not upon this doctrine of compact, or upon the inviolability of property, but upon the conviction which pervaded the minds of the great majority of the people of England, that they had the highest interest in the continuance and in the welfare of the Church. If this feeling should cease—if by some extraordinary circumstance the whole people of this country should be converted to some different religion—all those doctrines of property and of compacts would not avail for a moment, and the property of the Church would be swept away for ever. If their Lordships thought they could properly, in the present state of Canada, looking at the intelligence of its population and at the general diffusion of education among the people, 297 intrust them to manage their own affairs, could they think it fit or decent to say to them that they should not have the power of dealing with public property in Canada as we dealt with public property in this country? Funds derived from the Canadian reserves were the result of the contributions of the Canadian people. It was by the expenditure of capital and labour on the land that the clergy reserves had obtained an appreciable value. The people of Canada, therefore, asked, and fairly asked, that their own Parliament should exercise, with regard to the endowment of the Church in Canada, the same power that the Parliament of England exercised in respect to the endowments of the Church of England in the United Kingdom. But then they were told that this general right of dealing with the Church endowments in Canada was fettered by the Act of 1840—that the Act was a compact which it was impossible Parliament could honestly repeal—and that the Parliament of England was bound by it: against this argument he took a preliminary objection. He utterly denied the right of any Parliament, or of any one generation, to bind succeeding Parliaments or succeeding generations. He was old enough to remember when that doctrine was used very much in resisting Catholic emancipation. It was said that by the coronation oath the Sovereign was placed in a position that forbade him to assent to that measure. He well remembered hearing the brilliant debates in which that question was discussed, and the unanswerable arguments by which that fallacy was entirely and for ever disposed of. It could not for a moment be submitted to, that men in one age, and at one time, should bind those who were to follow them for all time to come, and prevent them from exercising their discretion as they thought right for promoting the public interest. No doubt Parliament was always bound to act with justice towards individuals; but every Parliament, by itself, quite irrespective of what had been done by its predecessors, was at liberty to decide upon all questions of political expediency. So far from the Act of 1840 possessing any extraordinary authority, it really did not carry that degree of authority which most Acts of Parliament possessed. He would just advert to the circumstances under which that Act was passed. In 1840, before the union of the two provinces of Upper and Lower Canada, his lamented friend, Lord Syden- 298 ham, who was then Governor General of British North America, considered it necessary that the question of the clergy reserves should be disposed of before that union was effected. He therefore induced the Legislature of Upper Canada, not without considerable difficulty, to pass an Act, for the purpose which was generally supposed to be in strict accordance with the provisions of the Act of 1791. This Provincial Act was laid before both Houses of Parliament, as was required by the Imperial Act of 1791, with a view to its ultimately receiving the Royal assent; but by what he could not help calling the unhappy legal acumen of the right rev. Prelate (the Bishop of Exeter), it was discovered that the Provincial Legislature had exceeded its powers, and that there was a technical objection to their Act, which rendered it impossible that it should be confirmed. The attempt to settle the question by Colonial legislation having thus failed, it was determined that a Bill should be brought into Parliament for the purpose of doing so. But, unfortunately, the Government of that day, during the progress of the measure through Parliament, was induced to assent to changes in its provisions, by which, instead of giving one-half of the clergy reserves to the Churches of England and Scotland, and dividing the rest among the other denominations according to their numbers, as had been proposed by the Assembly of Upper Canada; the whole of the property already sold, and one-half of the produce of the lands which might be afterwards sold, was to be given to the two Churches of England and Scotland, and the remaining moiety of the value of the unsold land left to be divided among the other denominations at the pleasure of the Executive Government. This proposal was made to Lord John Russell on the part of the Archbishop of Canterbury, with whom the late Sir Robert Peel and Mr. Gladstone acted. Lord John Russell adopted it, at the same time not concealing his opinion that the arrangement was an inexpedient one, and that he only agreed to it under the impression that the measure could not otherwise be carried. It so happened that he (Earl Grey) had himself not many months before ceased to belong to the Administration of Lord Melbourne; but having his attention drawn to the subject, he wrote a letter to Lord John Russell, stating the serious consequences which, in his opinion, would result from that arrangement. He told Lord John Russell that if the Bill 299 passed in the state then contemplated, very few years would pass away before it would be necessary to bring the whole question of the Church in Canada before Parliament; and he (Earl Grey) strongly urged that the right course to adopt would have been, after reciting in the preamble of the Bill the Colonial Act, to confine the enacting part of it to a single clause, giving effect to that Act. He was aware that such a measure would have encountered much opposition, especially in that House; but he believed that the Government at that time had the means, if it had been prepared to use them, to surmount the threatened opposition. A very considerable proportion of the whole provision for the Colonial Church was derived from the annual votes of Parliament, from which source it had been arranged, in 1832, that the stipends of existing incumbents should be paid for their lives; while the charge on account of the Canadians, previously borne by this country, should positively be put an end to. If the Government had included in the Bill giving effect to the arrangement respecting the reserves which had been assented to in Canada, provisions charging the stipends he had mentioned on the Consolidated Fund for the lives of the holders, at the same time declaring that in the event of this measure failing they would not recommend the usual annual vote to Parliament, he thought it very unlikely that the Bill would have been thrown out; and, at all events, those who were then in the situation of servants of the Crown certainly ought not to have taken on themselves the responsibility of a measure which they knew would give general dissatisfaction in the colony. But the Bill was passed with the amendments he had described; and, so far from its being cordially accepted in Canada, there was, from the moment of its being known, a great opposition to it. A deputation of Wesleyan Methodists from Canada, then in this country on another matter applied to be heard at the bar of the House of Commons against the Bill. That application was refused. His friend, Lord Sydenham, the moment he heard of the alterations contemplated, wrote to the Government his conviction of the impolicy of the measure, and stated that the result which their Lordships now witnessed would not fail to follow. To say that a measure thus forced upon the people of Canada, and upon a reluctant Government in this country, which had not the power to act upon its own 300 views—that an Act passed in that manner was to be considered binding for all time to come, was an opinion which he, for one, could not for a moment assent to. He could not dismiss the Act of 1840 without pointing out what a warning it gave of the danger of pushing too far the supposed interests of the Church. Those who thought themselves the only real and earnest friends of the Church possessed at the time, and exercised, the power of preventing the measure passed by the Legislature of Upper Canada from taking effect. If that Act had been allowed to stand, or if its provisions had been embodied in the Act of the Imperial Parliament, he said with the utmost confidence, that the arrangement would have stood undisturbed for ever. It was one freely adopted by their own representatives, and consistent with their own notions of what was fair; and the people of Canada would, he doubted not, have therefore abided by it. But the case was entirely altered when the measure they had themselves agreed to was rejected, and a totally different one was substituted for it; first, any alteration was offensive to the people of Canada; and the measure was also altered in a manner inconsistent with their notions of fairness. By the Provincial Act all the property was divided between the two Churches of England and Scotland on the one hand, and all other denominations of Christians on the other, in a proportion not very remote from that in which the shares would have been allotted had they been allotted according to the numerical proportion of those who were of different persuasions. The Churches of England and Scotland at that time numbered 158,000 members, and the other denominations 174,000, so that there was no very material departure from the principle of equality in assigning a moiety of the property to each of these divisions of the population. But how did Parliament deal with the question? First, half of the Presbyterian body were struck off, because it was said that only Presbyterians in strict communion with the Church of Scotland were to be reckoned as entitled to the share they had with the Church of England. Further, it was said the proceeds of the land sales which had been already authorised were to be held as belonging to these two Churches; two-thirds to the Church of England, one-third to the Church of Scotland; and the result of the arrangement was, that the favoured Churches were dealt with three times as favourably as the 301 others, after the local Legislature had been with much difficulty brought to assent to the slightest inequality. From the moment the Act reached Canada, there had never ceased to be more or less agitation. Never was the fable of the "Dog and the Shadow" more completely realised. Clutching the advantage of some slight addition to the annual appropriation in favour of the Church of England, the security of the whole had been sacrificed, and it was now in extreme danger. But even now to reject the present measure, would be to render matters still worse. Different opinions as to vested interests prevailed on the other side of the Atlantic from those which prevailed in this country. If the settlement now tendered were thrown out, and the whole subject came to be discussed in Canada under the influence of the feelings of irritation which the rejection of this measure could not fail to create, did their Lordships think it quite certain that the party which had hitherto been a minority in the Assembly might not be converted into a majority? There were not persons wanting in Canada who were ready to urge on the local Legislature that they were competent to deal with the subject, nor did they want a large amount of popular support. Their Lordships knew by how considerable a majority the Bill had been carried in the other House, where there had not been much difficulty hitherto in passing the annual estimates, providing salaries for a portion of the clergy of North America (on which subject an arrangement had been made a number of years ago, that the payments should cease with the lives of existing incumbents), but where, if this Bill were rejected, the question might be raised on the miscellaneous estimates, whether from that source an indemnity might not be made to the Canadian people. The clause omitted ought not to have been so; but as the interpretation put on the Bill was, that the guarantee was not to take effect unless the funds were deficient which were assigned by law to the Churches of England and Scotland, and that if the law were altered that guarantee would not apply, it was comparatively immaterial that the clause had been omitted. Parliament would never allow the people of this country to be taxed for an alteration made by the Canadian Parliament in the appropriation of those funds. These were the grounds on which he asked their Lordships to pass the Bill, and he would urge upon them before they 302 rejected it to consider well the results of such a step. Up to three or four years ago, Canada had been unceasingly disturbed by angry contests. The Government had never worked quietly from 1821 or 1822 till 1849, when the annual discussions respecting the rebellion losses were terminated. The French population till lately was alien in feeling to the mother country, and even a large portion of the population of Upper Canada was disaffected. A very different state of feeling now existed. Their Lordships were told from both sides that Canada enjoyed the most perfect repose and prosperity, that the population was united and loyal to the mother country, and that there was an ardent determination to support the authority of the Crown. Before changing that state of things, he asked their Lordships to consider that the step they were asked to take was directly at variance with that policy by which, between 1846 and 1852, so great a change had been accomplished. He hoped their Lordships would not take a course directly at variance with the policy which had produced those effects, that they would not refuse to give the Bill a second reading, and that they would not consent to any amendment which might prove fatal to the measure.
§ The EARL of DERBY
explained, that from the statement he had made, it would be seen that as on the one hand he could not consent to adopt the Bill in its present state, so, on the other he was extremely anxious to have an opportunity of calling their Lordships' attention to that modification which he had shortly explained. Though he could not say "Content" to the Bill it its present shape, and though he had no right to make the request of the right rev. Prelate (the Bishop of Exeter), yet he wished to state that if the right rev. Prelate thought the subject deserving of further consideration, it would be for the convenience of their Lordships, and certainly for his own (the Earl of Derby's) satisfaction, that the right rev. Prelate should not press his Amendment to a division, but that he should assent to the second reading, with the understanding that the Amendment should be afterwards considered, and that their Lordships should take what course they thought proper on the third reading.
The BISHOP of EXETER
stated that, with that understanding he did not hesitate to say that he should not trouble their Lordships to divide.
§ The DUKE of NEWCASTLE
suggested that the noble Earl (the Earl of Derby) should lay on the table the exact words of his Amendment.
§ The EARL of DERBY
stated that the Bill had been delivered only on Friday, and their Lordships were called on to discuss it in Committee on Monday next; the time, therefore, was very short; but having seen the print of the Bill from the other House, he had endeavoured to sketch out an Amendment.
§ The DUKE of NEWCASTLE
was not aware that the Bill had been delivered only to-day. An unusual time had intervened between the first and second reading, the Bill having been read a first time last Tuesday week.
§ Amendment (by leave of the House) withdrawn: Then the original Motion was, on Question, agreed to; Bill read 2a accordingly, and committed to a Committee of the whole House on Monday next.
§ House adjourned to Monday next.