HL Deb 28 April 1853 vol 126 cc658-63

Order of the Day for the Third Reading read.

Moved—That the Bill be now read 3a.


said, that he wished to ask a question, being very anxious to obtain some information respecting the position in which the country would stand after this Bill had received their Lordships' sanction. When this Bill was introduced into the House of Commons, it contained three clauses, of which one, the third clause, repealed the guarantee clause of the Act of 1840, and in that shape was read a second time by that House. But, on going into Committee, the noble Lord who had charge of the measure (Lord John Russell), stated he had made the discovery that there was a contract implied with regard to that clause, which had been introduced into the Act by Sir Robert Peel, in order to satisfy the scruples of the Archbishop of Canterbury and his right rev. Brethren; and, that, therefore, he felt it to be his duty to omit the third clause of the Bill, which would have repealed it. The consequence was, that some of the best supporters of the Government in the House of Commons objected to proceeding—actually divided the House upon it; and, as the noble Earl opposite stated the other night, the Bill was carried by the Government against the opinion of their own friends, and by the assistance of the Conservative party. One hon. Gentleman in the House of Commons declared that he considered the removal of that clause so unjust to the people of England, that, on the third reading he would move its reinsertion. But when the time for the third reading arrived, the noble Lord (Lord John Russell) told the House that he had made another discovery—and, that, on consulting the law officers of the Crown, he was informed that the clause would, under this Bill, be altogether inoperative. The question was then put to his Lordship, whether he had taken the regular written opinion of the law officers of the Crown on this subject? and he replied, No, he had not; but he had ascertained that that was their opinion in the course of a conversation with those learned Gentlemen. Under these circumstances, the hon. Member who had given notice of his intention to move the reinsertion of the third clause, with- drew his Motion, and the Bill came before their Lordships with the third clause omitted accordingly. The other night, however, the noble Duke (the Duke of Newcastle) stated to their Lordships that he considered the clause in the Act continued in force as much as ever. Now, if this were so, there was some discrepancy between the statement of the noble Duke and that of the noble Lord in the other House. The sum of money at issue was certainly but a very small one. It was only 7,700l. for the clergy of the Church of England, and 1,580l. for the clergy of the Church of Scotland in the colony; but what he wanted to know was this—if the Bill were now read a third time, would the Consolidated Fund of this country be responsible for making good any deficiency in the reserves to that extent, or would it not? He should like to have the opinion of the Judges on that point, for he was inclined to believe, that, under the Bill in its present shape, the people of this country were responsible for the payment of the deficiency, if it occurred.


wished to know, before the Bill was passed, if the Government had any objection to introduce a clause into the Bill for placing the rights and dues of the Church of Rome in Canada on the same footing, as regarded the protection afforded by the Act of 1840, that, under this Bill, the Protestant clergy reserves were to be placed upon? He must say he should have been glad to see a clause to that effect introduced into the measure; but he by no means desired to make the question a party one. Supposing, however, that, in the next session of the Legislature of Canada, a proposition were made, under the responsibility of the Government of Canada—and it was not impossible for such a proposition to be made—for devoting the clergy reserves of the Protestant Church to secular purposes, it appeared to him that the best means of meeting that proposition by those who were opposed to it would be to desire that the same provisions should be extended to the dues and rights of the Church of Rome, and that those dues and rights should stand in the same position as the clergy reserves of the Protestant Church, inasmuch as the tithes were taken from the Protestant Church on the ground that the clergy reserves would supply the place of those tithes. If, then, the question of secularising the clergy reserves were dealt with by the Canadian Legislature, the question should be treated as one which affected the rights and dues of the other Sects as Well.


I think I shall be able to satisfy the noble Earl (the Earl of Wicklow) that he is under some misconception with respect to what fell from my noble Friend in another place, and that there was no real discrepancy between his sentiments upon the third reading of the Bill, and the remarks which fell from me on a former occasion in your Lordships' House, on the second reading of the Bill. I think that the noble Earl has misunderstood what was said with respect to the clause in the Act of 1840, believing it to be applicable to the clause omitted from the present Bill in the other House. The statement which I made upon the second reading, and which I still maintain, was perfectly correct, and I will now repeat it. I said that the guarantee clause introduced in the Act of 1840 would have precisely the same effect and the same power, so far as legislation was concerned, after, as it had prior, to the passing of this Bill, except, of course, so far as there may be an impression in the minds of any individual Members of your Lordships' House that there may be a greater probability of the secularisation of these reserves by the Legislature of Canada than there would be by the Imperial Parliament. The omitted clause was introduced into the Bill by me, under the apprehension, which now seems to be entertained by many, that when the guarantee clause was originally introduced in the Act of 1840, at the request of the Archbishop of Canterbury, there was no possible chance of the fund falling below the amount specified in that guarantee. It is perfectly clear that such was not the apprehension of the most reverend Prelate at that time, otherwise for what purpose was it introduced? The clause was introduced under the apprehension that under some circumstances, such as the possible mismanagement or deterioration of the property, or some unforeseen accident, the fund might fall below the amount specified as then received. Upon ascertaining that at the time of the introduction of the guarantee, there was that fear entertained, Her Majesty's Government came to the conclusion that it would be wrong by any specific enactment to repeal that guarantee, which, whatever may be the opinions with respect to its coming into effect, was certainly considered at the time a valid guarantee against a sudden deficiency; and against that contingency the guarantee will be as effective, without the clause omitted in the other House, as it is at present. And if it should happen, under any circumstances—the clergy reserves remaining upon the same footing as at present, with the single exception that the authority over them will be given to the Legislature of Canada, and will not remain with the Imperial Parliament—if, I repeat, by any circumstance the funds should fall below the specified amount, the guarantee will have the same effect as before the passing of the present Bill, and no other. But according to the opinions of the law officers of the Crown, if these reserves should ever be secularised, then, by removing the condition upon which the guarantee was given, and upon which it rests, undoubtedly the guarantee itself would fall to the ground, and in the event of such secularisation, this country would not be answerable in the shape which the noble Earl has anticipated. In the event, therefore, of the clergy reserves being secularised by the Legislature of Canada, there would, under the guarantee of the Act of 1840, be no security under which the funds of this country would be liable to make up the deficiency; neither would there be any such liability if the same event were to take place under the operation of an Act of the Imperial Parliament. In fact, as to the condition of the guarantee, and as to its objects and results, it remains upon exactly the same footing as before. With respect to the question of the noble Lord (Lord Redesdale), I should object to the introduction of any words into the Bill such as he has recommended, upon several grounds. I think that the object of the Bill, its title, and its enactments, are of such a character that it would not be desirable to introduce into it what I may call "alien matter." There is also a much stronger reason—at any rate, one which has great weight with me. I am most anxious that this Bill should go out in its present form, as a boon to the colony of Canada, conferred upon it by this country at the request of its inhabitants, and as a boon carrying peace to the colony. I should most deeply reject if it were to be hampered by any conditions which might tend to set any one class of religionists against the other; and still more if it should go out to the colony, carrying with it the impression that we thought it necessary to insert in it any security against the free exercise of the will and intention of the Canadian Legislature, or that, in order to prevent the secularisation of the estates of the Established Church of England, in Canada, we had thought it expedient to put the rights and dues of the Roman Catholics as a "make-weight" against such a step. I have no wish, however, that the rights and dues of the Roman Catholic Church should stand in any way upon a different footing from that in which other portions of the clergy reserves will stand after the passing of this Bill. It would be inconsistent with the position I have taken in the discussions in this House, and to the principle of the Bill itself, that such should be the case; but I confess that, to my mind, the proposal of the noble Lord would afford no effectual security against the occurrence which he deprecates. I must remind your Lordships that in the discussion upon the Amendment on Monday last, the noble Earl opposite (the Earl of Derby) expressed his opinion that the provision requiring certain Acts of the Canadian Parliament to be placed upon the table for a period of thirty days before receiving the assent of the Crown, was one which entailed considerable inconvenience, and was of very little practical advantage. In that opinion of the noble Earl—the result, no doubt, of considerable experience in the Colonial Office—I entirely concur. This provision does not extend merely to the clergy reserves, and the rights and dues of the Roman Catholic Church in Canada, but to a great many enactments upon other subjects dealt with by the Canadian and other Colonial Legislatures; and the result I believe to be that considerable doubt often exists in the Colonial Office as to what Acts come within the operation of this provision and which do not, and I am not certain whether some mistakes have not been made on this point. I think it would be desirable, not merely with respect to the rights and dues of the Roman Catholic Church, but of the clergy reserves, to repeal this provision, so that the Acts of the Canadian Legislature should stand upon the same footing as those of the Legislatures of all other colonies, and that, instead of requiring the Acts to lie for thirty days upon the table of the House, the consent of the Crown should be given upon the responsible advice of the Colonial Office. These being my opinions, I shall certainly endeavour to carry them out by introducing a Bill for that purpose. There are, however, reasons why at this moment I should not like to specify any particular time for introducing such a measure.


said, as he understood the noble Duke, if in consequence of any secularisation either by the Canadian Parliament or the Parliament of this country the sum should fall below the required amount, then the Clause would cease to have effect. That was under the existing law. He did not think they would find a single sentence in the Act to justify that opinion. The language of the Act was, that if at any time the funds should fall below the specified amount from any caase—not merely from secularisation, but from any cause—the Consolidated Fund of this country was liable.


assured his noble Friend that if he thought with him that the guarantee fund would be a burden on the people of this country, he should object to the Bill as much as he did. They had, however, the opinion of the law officers of the Crown that it would not have that effect; and, besides, a portion of the reserves had been sold, and out of the proceeds a sum was actually invested, yielding a sum which was more than sufficient to save this country from being called on to make good any eficiency.

On Question, Resolved in the Affirmative: Bill read 3ª accordingly: Then it was moved, That the Bill do pass; which being objected to; on Question, Resolved in the Affirmative; and Bill passed.


wished to guard himself against being considered as entirely acquiescing in doing away with the provisions of the Act of 1840, because he thought there were certain matters which might be called of Imperial interest, and which ought not to be affected by the present measure.