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MONTREAL : PRINTED BY DESBARATS & DERBISHIRE. queen's printers. 1845. THE TO WH PR MEMOIR UPON THE ESTATES W'UtCH THE JESUITS POSSESSED IN CANADA, I) II iNn THE OBJECTS TO WHICH THESE ESTATES SHOULD BE AT PRESENT APPLIED, MONTREAL : PRINTED BY DESBARATS & DERBISHIRE Uveen's printeh. 1845. MEMOIR UPON THE ESTxlTES ■^ 'LIED'. n the acted ssion rces : ce; din^s ' the n the Dthcr diich f the • the them aleu, lition thev » the H u"^" '^"''**"*"'-' ^^^ • - -^"i^t^ <^i' HIS J^ieuienant at Que- bec, m consideration of the services tvhic/i they have render- " ed as well to the French Inhabitants as to the Indians of \* iii ! (' o M gAOM mim •sqi n — ei^Vi^ '^^^\i iivk^ lN3»^HDHVd ONVIlOtt fl MKMOIR UrON THE ESTATES WHICH THE JESUITS '^OS^ESSED IN CANADA, AND THK OBJECTS I'O WHICH THESE ESTATES SHOULD BE AT PRESENT APPLIED^. u (£ (( fllHE Jesuits established themselves in Canada in the -■- XVll^'' century. They established Colleges and acted IS Missionaries in this country. They were in possession of considerable Estates derived from three difierent sources : 1. — Some were given to them by the King of France; 2. — Others they received from individuals ; 3. — The rest were theirs by the right of purchase. We have seen a printed volume, entitled : ** Proceedings of the House of Assembly in the first session of the eighth Provincial Parliament of Lower Canada, upon the state and progress of education, &c." This volume published in 1824 contains, among other documents, a detailed list of the titles of estates which had belonged to the Jesuits. We will quote from this list an example of each of the three kinds of property of which we have spoken. 1. — Estates given by the King. Seigniory of Notre Dame dcs Anges or CJiariesbourg. ** This Seigniory was granted to the Fathers of the " Company of Jesus and their successors, to be by them " held and enjoyed for ever as their property in franc-aleu, " with all Seigniorial and Feodal rights, on condition " that appeals from the decision of the Judges whom they " shall appoint over the said Seigniory, shall be to the " High Steward of New France or his Lieutenant at Que- " bee, in consideration of the serviced lohicli they have rendcr- '^ ed as well to the French Inhabitants as to the Indians of \t " ■■ if i,i 4 " the Country f wliicfi can never be sufficiently achiowlcds^ed,*' 2. — Estates given by individuals. Seigniory of Jintiscan. *' This Seigniory was given to the Reverend Fathers of " the Company of Jesus settled in New France for thern " and their Successors to be held as an absolute Fief with " right of Superior, Mesne and Inferior Jurisdiction, and ** subject to Fealty and Homage to the said Jacques De- ** laferte and his Heirs, according to the usages and cus- " toms of Fiefs in the Prevote of Paris — subject also to the *' payment of a silver cross of the value of sixty sols at the " end of every twenty years to the said Jacques Delaferte '' and his heirs from the time that the said Lands should " be cultivated. — T/ic said Lands to be possessed by the said " Fathers Jesuits^ ajritlied or assigned to the Indians or others " becoming Chiistians, and in such manner as the said Fa- " thers shall judge fit ^ so that the said Lands shall not be " taken out of their hands as long as they shall think pro- " per to hold and possess them. — Tliis Seigniory teas given " for the love of God:' 3. — Estates purchased by the Jesuits. Seigniory of Belalr or Bonhomme Mountain. " This Seigniory was bought by the Reverend Fathers of " the Company of Jesus (with the right of Superior, Mesne " and Inferior Jurisdiction, and that of hunting and fishing *' within the limits thereof, subject to Fealty and Homage) " from some of the descendants of Guillaume Bonhomme " and other persons who had purchased some parts thereof " from other of his descendants.'* These are only examples, as we have already said. But they serve to give accurate notions of the nature of those titles by which the Jesuits held property in Canada, and which, with trifling exceptions, were all analogous in cha- racter to those we have given. At the epoch of the Conquest of Canada by the English, the Jesuits were in peaceful possession of these properties. All their titles to property were regular — Istly Because, in 1678, they had obtained Letters Patent from Louis XIV, granting them permission to establish themselves in Cana- (( « « <: It (( »» But those and cha- ;ana- ila ; 2i\\y llorause, tlio donations made to theni were in- vested vvitli all the requisite forms of law. The capitulation of C^uehec took place on the 18th Sep- tember, 1759, and that of Montreal on the 8th September, 17(30. The Articles of these two capitulations having reference, whether directly or indirectly, to the subject matter of this Memoir, are the following : — Article G of the capitulation of Quebec. Demand of tiie French Governor. '* That tlie exercise of the Catholic, Apostolic and Roman religion shall be maintained; and that safe- *' guards shall be granted to the houses of the clergy, and " to the monasteries, particularly to his Lordship the " Bishop of Quebec, who, animated with zeal for religion, " and charity for the people of his diocese, desires to reside in it constantly, to exercise, freely and with that decency " which his character and the sacred offices of the Roman religion require, his episcopal authority in the town of " Quebec, whenever he shall think proper, until the pos- *• session of Canada shall be decided by a treaty between their most Christian and Britannic Majesties." Answer of the English General. ** The free exercise oftlie Roman religion is granted, like- wise safe-guards to all religious persons, as well as to the '* Bishop, who shall be at liberty to come and exercise, *' freely and with decency, the functions of his office, " whenever he shall think proper, until the possession of ** Canada shall have been decided between their Britannic " and most Christian Majesties.'* Articles 27, 28, 32, 33, 34 and 35 of the capitulation of Montreal. 27. Demand. " The free exercise of the Catholic, Apos- '* tolic, and Roman religion, shall subsist entire, in such '* manner that all the states and the people of the Towns " and countries, places and distant posts, shall continue '* to assemble in the churches, and to frequent the sacra- ** ments as heretofore, without being molested in any ** manner, directly or indirectly. These people shall be " obliged, by the English Government to pay their Priests « (( (( u « J 6 (( (( *' the tiilies, and all the taxes they were used to pay under the Government of his most Christian Majesty.'* Answer. " Granted, as to the free exercke of their religion, the obligation of paying the tithes to the Priests will de- " pend on the King's pleasure." 28. Demand. " The Chapter, Priests, Curates and Mis- '' sionaries shall continue with an entire liberty, their ex- " ercise and functions of Cures in the Parishes of the " Towns and Countries." Ariswer, " Granted." 32. Demand. '* The communities of Nuns shall be pre- " served in their constitutions and privileges ; they shall " continue to observe their rules; they shall be exempted ^' from lodging any military ; and it shall be forbid to mo- " lest them in their religious exercises, or to enter their *' monasteries: safe-guards shall even be given them, if " they desire them." Answer. " Granted." 33. Demand. " The preceding article shall likewise be " executed, with regard to the communities of Jesuits and " RecoUets and of the house of the Priests of St. Sulpice " at Montreal ; these last, and the Jesuits, shall preserve " their right to nominate to certain curacies and missions, " as heretofore." Answer. '* Refused till the King's pleasure be known." 34. Demand. *' All the coniinunitiesy and all the Priests, " shall preserve their moveables, the property and revenues *' of the Seigniories and other Estates which they possess in " the colony, of what nature soever they be ; and the same " Estates shall be preserved in their privileges, rights, hc- " nours and exemptions." Ansiver. " Granted." 85. Demand. " If the Canons, Priests, Missionaries, the " Priests of the Seminary, of the foreign Missions, and " of St. Sulpice, as well as the Jesuits, and the Recollets, " chuse to go to France, a passage shall be granted them '* in his Britannic Majesty's ships, and they shall have leave " to seU, in ichole or hi part, the Estates and Moveables *' which, they possess in the colony, either to the French " or to the English, without the least hindrance or pbsta- *i li it It it it It <( (( It tt ti It » (> « (( cle from the Biitish Government. — They may take ivith them, or send to France, the produce of what nature soever '■ it be, of the said goods sold, paying the freight, as men- '' tioned in the XXVl'^ article ; and such of the said Priests, who chuse to go this year, shall be victualled " during the passage, at the expence of his Britannic Ma- '* jesty ; and they shall take with them their baggage." Answer. " They shall be masters to dispose of their Estates " and to send the produce thereof, as well as their persons, " and all that belongs to them to France." The capitulation of Montreal consummated the conquest of Canada by the English. In France, at the epoch of this conquest, the Jesuits were in plenary enjoyment of their rights: the first decree against them did not occur until 1761. By the treaty of 1763, France ceded Canada to England. This treaty contains the two following clauses : *' His Britannic Majesty, on his side, agrees to grant the *' liberty of the Catholic religion to the inhabitants of Canada : " he will consequently give the most effectual orders, that *' his new Roman Catholic subjects may profess the woi- *' ship of their religion, according to the rites of the Romish *' church, as far as the laws of Great Britain permit, " His Britannic Majesty further agrees, tiiat the French inhabitants, or others, who had, been the subjects of the most Christian King in Canada, may retire with all safety and freedom wherever they shall think proper, and may sell their Estates, provided it be to subjects of his Britannic " Majesty, and bring away their effects, as well as their *' persons, without being restrained in their emigration; un- " der any pretence whatsoever, except that of debts, or of criminal prosecutions ; the term limited for this emigration, shall be fixed to the space of eighteen months, to be com- puted from the day of the exchange of the ratification of the present treaty." In 1774 (14th year of the reign of George III) the Par- liament of England adopted an Act containing various provisions relative to the inhabitants of Canada. Among these the following demand attention. Art, 5. " And, for the more perfect security and ease of u u u a a u 1 . 'i , (( " the minds of the inhabitants of the said Province, it is " hereby declared, that his Majesty's subjects, professing the religion of the Church of Rome of and in the said *' Province of Quebec, may have, hold and enjoy, the free " exercise of the religion of the Church of Rome, subject ** to the King's supremacy, declared and established by an ^* Act, made in the first year of the reign of Queen Eliza- ** beth, over all the dominions and countries which then ■ • did or thereafter should belong, to the Imperial Crown " of this realm; and that the Clergy of the said Church '' may hold, receive, and enjoy, their accustomed dues and " rights, with respect to such persons only as shall profess " the said religion." Art. 6. " Provided nevertheless, that it shall be lawful ** for his Majesty, his heirs or successors, to make sueh '* provision out of the rest of the said accustomed dues and ^' rights, for the encouragement of the Protestant religion, '' and for the maintenance and support of the Protestant " Clergy within the said Province, as he or they shall, ^' from time to time, think necessary and expedient. Art, 8. ** And be it further enacted by the authority " aforesaid, that all his Majesty's Canadian subjects within the Province of Quebec, the religious Orders and Commu- nities only excepted^ may also hold and enjoy their pro- perty and possessions, together with all customs and usages relative thereto, and all other their civil rights in as large, ample, and beneficial manner, as if the said Proclamation, Commissions, Ordinances, and other Acts and Instruments, had not been made, <&c" The English Government left the Jesuits in possession of their Estates, but Pope Clement XIV, having suppressed their Society by his Bull of the 21st July, 1773, they ceased to recruit their strength. Nevertheless they continued to keep school at Quebec until 1776 ; but at this epoch the Government having placed the public Records in the house they occupied, they were obliged to cease giving instruction. The administration and enjoyment of the Estates belong- ing to their Order was however left to them, In 1787, Lord Amherst solicited from the King of En- gland the surrender of a part of these Estates. The King (( (( ({ (( named Commissioners to examine, among other questions, whether the Estates demanded by Lord Amherst could he legally given ami granted in the manner- prof)osed. The . petition of Lord Amherst it seems was not granted. In 1789, the English Government conceived the idea of founding in the Province of Ctuebec a mixed University, that is to say Catholic and Protestant: A committee, presided over by Mr. W. Smith, was appointed for the examination of this project. Mr. Smith wrote to his Lord- ship M. Hubert, Bishop of Quebec, to request his opinion. That prelate expressed the opinion that the time had not yet arrived for founding a University in Quebec, He added that in order to place the Province in a condition lit to re- ceive in the progress of time so great a boon, it would be necessary to encourage the studies prosecuted at the Col- lege of Montreal and the Seminary of Quebec " This " is a matter, said His Lordship, over which I watch with " the greatest interest." He proposed also to found a third College, having for its endowment the Estates of the Je suits. (I " I render to the Reverend Fathers Jesuits, said he, all " the justice they merit for the zeal with which they have " laboured, in this Colony, in the work of instruction and " for the salvation of souls. Nevertheless, I should not be " indisposed to adopt measures from the present date to " secure their College as well as their other possessions to the " Canadian people, under the authority of the Bishop of " Quebec. But, to whom would belong the government " of the College of Jesuits, if restored to its former footing 1 '* In the first place to R. F. Glapion until his death, and " afterwards to those who should be appointed by the " Bishop. Is there anything extraordinary in such a pro- " ject 1 The following is an analysis of the principles *' upon which I base it, " L — The foundation of this College would consist only " of the Estates of the Jesuits. " 2. — The Province has no right to appropriate them ** othetwise than according to their prirn'mHal destination. " 3. — The propagation of the Catholic faith is the prin- *' cipal motive of all the grants, 10 (( —The circumstances of the donations and the quality " of the donors all prove that this was their intention. " The Canadians considered as Catholics have then an in- •' (ontcstable right to these Estates. '* 5. — The instruction of the Indians and the subsistence " of their missionaries seeming to have weighed considera- " biy witli the donors of the Estates of the Jesuits, is it " not fitting that the Bish,op of Quebec, icho deputes these •' missionaries^ should determine in their javor the application of that portion of these Estates ivluch shall be judged to have ' been given for theniy rather tiian that they should be left a charge upon the Government as many have been for " some years past ? Now, in preserving the Estates qf the " Jesuits for the Canadians under the authority of the " Bishop, he would be in a situation to carry into effect that *^ essential part of the intention of the donors ; and it is " besides very probable that both the College and the pub- (( le "• lie would gain by this arrangement." In his Report Mr. Smith expressed himself as follows upon the observations of the Bishop respecting the Estates of the Jesuits. " The very Reverend Bishop of Quebec icas not singular " in suggesting that a part of the Estates of the abolished " Order of Jesuits might serve for such an object." The Bishop of Quebec of that day was near enough to the time when the Estates of the Jesuits w^ere applied to their primitive destination, to know well what that destina- tion was and the modes of effecting it in times past: In laying claim to this property in general, also, he had no in- terest in misdirecting its application in detail. In 1790, the Parliament of England adopted an Act of which Section XXXV is in these words: " And whereas, by the above-mentioned Act, passed in " the fourteenth year of the Reign of his present Majesty, " it was declared,' That the Clero-y of the Church of Rome, " in the Province of Quebec, might /lold, receive and enjoy *• their accnstomed dues and rig/tts, with respect to such per- '* sons only as should profess the said religion ; provided " nevertheless, that it should be lawful for his Majesty, " his Heirs or Successors, to make such Provision out of a li u u li li ii ii 11 uality ntion. in in- utence idera- s, is it i these Ication !o have be left ;en for uf the of the ct that d it is le pub- bllows Estates ngular Dhshed >ugh to lied to estina- |t : In no in- Act of i!S *ed in ajesty, Ronrje, / enjoy z\\ per- ovided ajesty, out of ** the rest of the said accustomed dues and rights, for the " encouragement of the Protestant lleligion, and for the " maintenance and support of a Protestant Clergy within " the said Province, as he or they should from time to time " think necessary and expedient : And whereas by his *' Majesty's Royal instructions, given under his Majesty's " Royal Sign Manual, on the third day of January, in the " year of our Lord one thousand seven hundred and se- " venty-five, to Guy Carleton, Esquire, now Lord Dorches- *' ter, at that time his Majesty's Captain General and " Governor in Chief in and over his Majesty's Province of " Quebec, his Majesty was pleased, amongst other things, " to direct : *' That no Incumbent professing the Religion of '* the Church of Rome, appointed to any parish in the said " Province, should be entitled to receive any Tythes lor " lands or possessions occupied by a Protestant, but that such Tythes should be received by such persons as the said Guy Carleton, Iilsquire, his Majesty's Captain Ge- neral and Governor in Chief in and over his Majesty's said Province of Quebec, should appoint, and should be reserved in the hands of his Majesty's Receiver General of the said Province, for the support of a Protestant Clergy in his Majesty's said Province, to be actually re- sident within the same, and not otherwise, according to *' such directions as the said Guy Carleton, Esquire, His " Majesty's Captain General and Governor in Chief in and '* over his Majesty's said Province, should receive from his *' Majesty in that behalf; and that in like manner all grow- " ing rents and profits of a vacant benffire should during " such vacancy^ he reserved for and applied to the like usesJ^ " And whereas his Majesty's pleasure has likewise been '* signified to the same effect in his Majesty's Royal instruc- *' tions, given in like m.anner to Sir Frederick Haldimand, " Knight of the most Honorable Order of the Bath, late his " Majesty's Captain General and Governor in Chief in and *' over his Majesty's said Province of Quebec ; and also in " his Majesty's Royal instructions, given in like manner to *' the said Right Honorable Guy Lord Dorchester, now his • Majesty's Captain General and Governor in Chief in and " jver his Majesty's said Province of Quebec ; be it enacted (I ;l MfMa ! I' \ 12 ' *' by the authority aforesaid, that the said declaration and " provision contained in the said above mentioned Act, " and also the said provision so made by his Majesty in " consequence thereof, by his instructions above recited, *' shall remain and continue to be of full force and efi'ect in " each of the said two Provinces of Upper-Canada and " Lower-Canada respectively, except in so fa?' as the said ** (kdaration or provisions respectively^ or any part t/ierenf, " s/utU be expressly varied or repealed by any Act or Acts " which may be passed, by the Legislative Council and As- '' sembly of the said Provinces respectively, and assented to " by his Majesty, his Heirs or Successors, under the res- " triction hereinafter provided." The last Jesuit of Canada was Father Cazot ; he died in 1800. Up to the period of his decease the Government had not touched the property of the Jesuits; but imme- diately upon his death, the authorities took possession of the estates. It seems, however, that they had no intention of appropriating the revenues to themselves, but left them to accumulate in a separate chest. In 1832 the Crown placed these Estates at the disposal of the Canadian Legislature, to be applied to the purposes o( education : and this gave occasion to an Act of the Legis- lature of which the first section is as follows : *' Most Gracious Sovereign, — Whereas His Excellency " Matthew Lord Aylmer, Knight Commander of the Most " Honorable Military Order of the Bath, Governor in Chief, " was pleased by Message bearing date the eighteenth day " of November, one thousand eight hundred and thirty-one, " to lay before both Houses of the Provincial Parliament, " a despatch by him received from Lord Viscount Gode- *^ rich, Your Majesty's Principal Secretary of State for the " Colonial Department, bearing date the seventh day of '' July in the said year, whereby it appears that Your " Majesty has been graciously pleased to confide without " reserve to the Provincial Legislature, the appropriation oj " the funds arising from the Estates of the late order ofJc- " suits to the purposes of education exclusively ; and whereas " it is expedient to make Legislative provision for carrying " Your Majesty's gracious intentions in that behalf into « t{ (( u (( ({ (( <( <( 13 on and id Act, esty in recited, fl'ect in da and h,e said thereof^ )r Acts vnd As- nted to he res- ile died rnment imme- jsion of tention ft them isposal jrposes Legis- ellency e Most i Chief, ith day ty-one, aiTient, Gode- for the day of t Your citlioat tion of • ofJc- hereas irrying If into efl'ect: — May it therefore please Your Majesty that it may be enacted, and be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Lower Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parlia- ment of Great Britain, intituled :* An Act to repeal certain parts of an Act passed in the fourteenth year of His Ma- jesty's Beign^ intitided. An Act for making more effectual provision for the Government of the said Province of Que- bec in North America^ and to make farther provision for tfie Government of the said Province ; and it is hereby en- acted by the authority of the same, that from and after the passing of this Act, all monies arising out of the Es- tates of the late Order of Jesuits which noAV are in or may hereafter come into the hands of the Receiver Ge- neral of this Province, shall be placed in a separate chest in the vaults wherein the public monies of the Province are kept, and shall be applied to the purposes of education^ exclusively i in the manner provided by this Act, or by any ACT OR ACTS WHICH MAY HEREAFTER BE PASSED BY THE PROVINCIAL LEGISLATURE lu that behalf and not otherwise^* This then is the present state of the question. The Estates of the Jesuits are to be applied to the pur- poses of education ; that is a settled point that no one contests. But, ought they to be exclusively applied to the mainte- nance of Catholic Colleges or Schools 7 Or, may a portion be taken for Colleges and Schools kept by Protestants ? This is the question. To the Canadian Legislature belongs the solution of this question ; but that body can only decide it upon strict principles of justice and equity, in a manner suited to the interests of the country and becoming its own character. Now, justice, equity, and the general interest unite in favor of Catholic Colleges or Schools. To be convinced of this, it is only necessary to examine m * It is in the Act of 1790 wherefrom we have extracted the above article 35. I 14 what was ihe nature of these Estates at the period of the conquest. And afterwards investigate what have been the effects of the conquest ? §lst. llliat irns the nature of the Estates of the Jesuits at the period of the conquest ? These Estates were incontestably the property of the Catholic Church. It was a generally acknowledged principle that the pro- perty of the Catholic Church could not be diverted from its destination. This principle w^as founded upon the establishment of this Church (as to its temporal character) as it issued from the hands of the Christian Emperors, and as it has perpetu- ated itself to the present time. It was considered that human Society had tw^o kinds of w^ants. Spiritual wants for which the Church w^as charged to provide. And temporal w^ants which it belonged to the State to satisfy. Each of these two services required fixed pecuniary resources. The funds destined to defray the expences of the Church, ought they to be entirely distinct and separated from those which were destined to meet the expences of the State ? Yes ; they ought to be. It w^as thought desirable that the Church should have separate revenues, and that these revenues should never either be taken from it or carried into the public treasury of the State. This w^as the doctrine and the established rule throughout the whole extent of the Catholic world before the French revolution. Diffe- rent maxims we know were adopted by that revolution. In the present day in France the charge of the Clergy and the expences of w^orship form a chapter in the Budget of the State ; and it is the same with ecclesiastic expences as with the costs of justice, of w^ar and marine. But it is of 17( tio at 1 of the effects at the ' of tlie he pro- id iwm nent of 3d iVoni erpetu- tinds of rged to tate to luniary church, 1 those ;tate 1 \\e that t these carried octrine :tent of Diffe- >lution. gy and dget of ices as It it is 15 not from this point of view we must regard tlie Estates of the Jesuits in order to know wliat tliey were at the time of the conquest of Canada by England, that is to say in 1760 ; it is indispensable that we go back to the constitu- tion of the Catholic Church (as to property) as it existed at that epoch. We repeat that at that date there was between the pa- trimony of the Catholic Church and that of the State a separation absolute and insurmountable. It was felt that the means of providing for the necessary charges of religion, which are fixed as religion itself, could not be left to depend upon the vicissitudes of politics. Such was the situation of the Catholic body. We might easily justify this state of things, if that were the question ; but it would be a superfluous task. Whether this state of things be approved more or less, the fact of its existence must be taken as incontestable. The resources of the Catholic Church were of two sorts. 1.— Tithes. 2. — The Revenues of the property which this Church possessed. This property consisted of the secular benefices and the moveable and immoveable objects belonging to the religious communities. Both kinds were inalienable ; and why w^as it so? Be- cause, says d'Hericourt, " they belonged to the Church, and " to God to whom they had been consecrated.^^ (Lois Eccle- siastiques, De faliBnation des biens de VEglise No. 1.) The Church, then, excepting only in certain cases of absolute necessity, had not the power of alienating its pro- perty. Still less, had the State the right to seize upon the pro- perty of the Church, either to sell or give it a different destination. Every benefice and every religious society constituted a separate establishment ; but these different establishments were in reality but the members of one and the same body, that is to say of the Church. It followed that, if a benefice or a society were suppres- ■ i in sed, the property possessed by that cstablisintient did not hecoine the property of the S.ate as vacant property with- out an owner ; it remained in the patrimony of tlieCliurch ; and there were two reasons, the one historical, the other logical, why it should be so. First, let us examine the historical reason. In the first ages of the Church, the Bishops had the administration of all the ecclesiastical property of their diocese, and divided the revenues amongst all the Ministers of the Altars belonging to their diocese. In the Fifth Cen- tury, was commenced the division of ecclesiastical property among the different persons who exercised spiritual func- tions. This was the origin of benefices. *' Ecclesiastic benefices, says Fleury in his Institutes, pro- " ceed from the partition that was made of the property of " the Church in the Fifth Century." (See also Durandde Maillane, under the head Biens de l^JEglise). But this par- tition did not change the character of the property ; it was in reality only an appropriation to specific services. D'He- ricourt's definition of a benefice is, " a right that the Church " accords to one of the Clergy to take a certain portion of the ** ecclesiastical revenues, on condition that he renders to the " Church the services prescribed by the Canons, by usage " or by a deed of endowment." Thus a particular farm or house, although attached to a benefice, always preserves its original character, of Church property ; it does not cease to form part of the whole mass of ecclesiastical property ; and, consequently, if the benefice should happen to be sup- pressed, the State would not have the right either to seize upon the farm or house, or give it a non^religious desti- nation. And what we say in this respect of benefices ap- plies evidently with equal force to religious societies and their property. To the historical let us add the logical reason. The institution of every benefice and of every religious society had for its object the satisfaction of some rrM- gious want. If the benefice or the society should be sup- pressed, the want would be unprovided for. But, as the matter could not remain thus, it would become neces- sary for the Church to provide in some other way, that did not y witli- liurcli ; e other lad the )f tlieir i (listers th Cen- roperty [I func- ;es, pro- perty of rcind de lis par- it was D'He- Clmrch ^ of the s to the usage arm or Irves its ease to perty ; e sup- seize desti- ;es ap- les and Ugious sup- las the leces- that 17 is to sny, to charge another beneficiary or another soci- ety with the stTvico which ()n«^inally attached to the suppressed establishment; and liius justice and reason vvuuhJ rt'(iuirc tiiat the endowment of tliat establishment should pass to the one which succeeded to the fulfilment of its dutic'S. This disposition, or rather this new appropriation of property, the original title whereof was suppressed, would recjuire the concurrence of the Church and of the State. Of the Church, because to it belongs the right of judg- ing to whom should be confided the service originally per- formed by the suppressed establishment. Of the State, because whatever relates to the protection and administration of ecclesiastical property necessarily belongs to the civil laws. To the reasons we have hastily sketched, another must be added. The greater part of ecclesiastical property proceeded from donations made by individuals with an explicit or itnplied direction as to the use to which they should be put. So long as the donatory establishment subsisted, we could not properly alter the destination of the property ; but if it should be suppressed, equity would exact that we should come as near as possible to the intention of the donor, in confiding the service for which the donation was made to another establishment analogous to the first, to which the property would be conveyed. It would be supremely unjust that the State should possess itself of such property ; for, having relation to a religious service this service could only be executed by persons invested with an ecclesiastic character ; so that the State, in .ippropria- ting to itself the property would not only despoil the Church and witliold from the Catholic body that service to which it had a right, but would violate the will of the donor. The French Revolution, we know, was guilty of this spoliation ; but as the Canadian Legislature is cer- ta ;ly not animated by the spirit of the Constituent As- sembly, we need not waste time in combating such a pre- cedent as this. The necessity of respecting the intentions of the donors '2 16 Was another reason for the intervention of the civil power to give a direction to the [)roperty of the suppressed Order; for, it is principally that power that is ctiarged with the duty of seeing that the conditions annexed to volunta- ry grants are strictly carried out. (See Van Espeiif part 2. tit. 25, ch. G. JYo. 17 ; and Pithm, upon article 25 of the liberties of the Gallican Church.) This necessity of respecting the intentions of donors ought also to be regarded in another point of view. It is opposed, as we have already shewn, to the misap- propriation of property given for religious purposes to any but those purposes. The founder of an establishment wills in the first place that the property with which he endows it shall be applied to its support. In the second place he wills, that in case of its sup- pression, the property shall be applied to the support of another ecclesiastical service of the same nature. Upon this point there is necessarily a presumed tacit consent on his part, since we must suppose him to have been ac- quainted with the laws and maxims of the Church. If then we give to this properly a diflerent direction from that we have described we manifestlv violate the in- tention of the founder, contravening thereby the principles of natural right and those positive laws of all countries which forbid a departure from the expressed or tacit con- ditions of a bequest. A Government which should oppose itself to the appro- priation of the Estates of a suppressed Catholic establish- ment to another analogous Catholic object, would be obliged to restore them to the families of the donors : else it would incur the just reproach of spoliation. If we consult the history of the Church, it will be seen that the doctrine we advance is not mere theory, but is abundantly confirmed by facts. In 1302, the Templars were suppressed by Pope Cle- ment V ; arid their Estates were distributed among three other religious and military Orders who rendered anala- gous services to the Church, that is to say : the Order of St. John of Jerusalem, that of Calatrava, and that of the << li (( <( a « .> iC 11) power L)rdfr; ith i\\v jluntJi- part 2. • of the donors misap- to any Bt place applied its sup- pport of Upon consent seen ac- j. li reel ion the in- nciples ountries icit con- appro- tablish- 3uld be rs : else be seen , but is pe Cle- g three [1 anala- rder of t of the Kniglits of Livonia. In h)'2(>, Urbain VIll. suppressed the congregation of fYercs OntrcntuelSf and iheir Estates were p;iven to the Order of fVcirs JUnctnH Onircniurls of St. Francis. In 105(1, Innocent X. secuhu'i.sed the Order of Saint Basil of the Armenians, and subjected the brothers to the juri.sdiction of the Onlinaires: their l*iS(ates were lianded over to the diocesnn Bishops, and pensions were assigned to the tituhns upon these Instates. Sometimes it has happened that without suppressing a religious Order, a portion oC its property has been transfer- red to another Order, the fust having ceased to perform the particular service for which the property was originally bestowed upon it, and the second executing that service. " The Jesuits, says d'llericourt, are by the Bull of their *' foundation, of the number of mendicant Orders ; but the " same Bull authorises ihoir having Colleges to wMiich re- *' venues may be attached for the professors and students '* who are members of the society, and places the govern- " men! and superintendence of these Colleges and their *' endowment.*? in the general and the society. The Con- '• stitutions forbid the general to apply any part of the " revenues of the Colleges to the use of the jmifes ; but th^ " declarations, which one may take as commentary that sometimes modifies the text, permit in general assistance to be given from these funds to those among the pro/Bs who are useful to the Colleges, as the preachers, profes- sors and confessors. The funds with which the Colleges of Jesuits have been endowed have not considerably aug- mented the Estates of the Church, becau.se property was " given to them, especially in Germany, which was taken " from other religious bodies. The Benedictines and " those of Citeaux, who were most damaged by these " changes, complained of them as an usurpation ; but thfe " Popes, who had acted in concert with the Emperors and " other Sovereigns of Germany, replied that it w as to the " advantage of the Church to establish Colleges and Semi- " naries to oppose the progress of new heresie.^5, and that " the Jesuits w^ere better able to maintain these establish- " ments than tlie other religious bodies, ivJiose monasters '' were not asjormcrhj^ public Schools. It was carryiiis: oat if 20 " the InlcnlloiL of the donor to iilrc, a part of these revenues to " the Jesuits, It might he added tliiit a great part of " the property of these hodies had l)elo)K';ed to other numks *' or secular ecclesiastics, etc There have been mar.y " unions of regidar benefices added to the Colleges of the " Jesuits during the last Century The revenues of " congreffatioris more recent than the Jesuits, and which " had not been formed out of ancient orders, were derived " to them from the unions of estates, or by their entrance " into monasteries the brotlierliood of which liad been dismiss- " ed, or by the free gift of the faithful." By what precedes, we have established that the property of the Church may pass from one ecclesiastical establisii- ment to another, but that it has never been severed from the common patrimony of the Cliurch. (1). The different religious orders and the difierent functions of the secular clergy are only instruments by means of which the Churcli fulfils the task that God has confided to her : she may renounce one of these instruments, and supply the place by others of more activity and energy ; but she is bound always to preserve within herself the totality of her strength and resources. If these maxims in some instances, even before the Re- volution of 1789, have been departed from, and the Church in consequence, despoiled of property that belonged to her, such acts cannot be taken as precedents, because they were contrary to canonical rules, and these rules were re- ceived as the laws of the State in every Catholic Country. The Governments which seized the property of the Churcli in contravention of these principles, committed an usurpa- tion ; force prevailed over right but did not destroy it. Tlie Church may therefore exclaim as well against the spoliations already committed upon her, as in opposition to any further attempts of the kind in contemplation against her. So fully comprehended and admitted in all times has been this principle, that when Napoleon, who certainly was not disposed to surrender the rights of the Temporal (I) With the cxcoplion of some altogclhor extraordinary rasos and which can only occur with the consent of the Church itself, os will be seen hereafter, - ■ { miics to [)art of monks I many of the lues of which derived ntrancc Usmiss- roperty tablisli- ed from liflferent secuhir Churcli lie may e place ^ bound ijtrength the Re- Churcli I to her, se they vere re- 'ountry. Church usurpa- >troy it. inst the iition to against les has rtainly jmporal can only a ti « <( 2[ power, nc,']^ocinted with the l*ope the Concordat of the 20th messidor, in the year IX, he demanded and obtained from the 8overeii.ijn Pontilf the ratification of the sales of Church property wliicli !iad been made during the French Revolu- tion. This ratification wasii^ranted in the followinjx terms, by article l.S of the Concordat : " His Holiness for the sake of peace and the happy re-es- tablishment of the Catholic religion, declares that neither " he nor any of his successors ivill disturb in any manner the holders of alienated ecclesiastical property, and that consequently the ownership of this property, the rights and revenues thereto belonging unll remain in the undisput- *' ED possession (incommutables) of them or their repre- *' sentatives.''^ The force of this clause is obvious : notwithstanding the laws which lodged in the State the property of the Estates of the Church in France and directed their sale, the pro- perty was not undisputed in the hands of the holders. To give an undisputed title to this property, it was essential that the Church, personified by its Chief^ should interpose and give validity to the alienations. Thus it appears that the State has never been able legally to appropriate the Estates of the Church whether the religious establishment to which they belonged were still in existence or had been suppressed. In the latter case the property cannot be con- sidered in the light of vacant unowned property ; for it belongs to the common patrimony of the Church, and is destined as a provision for services which the Church must ensure by charging some new establishment with their per- formance and transferring the Estates of the suppressed Order to it. The history of the Church affords a multitude of examples of the application of the maxims we have enun- ciated. Since as long back as the V'^ Century it has been held necessary to assemble a Council to examine the grounds of any alienation of ecclesiastical property. ( Coun- cil of Carthage in 401, ap, Gratian. Causa XVIII. qucest, IV. c. 39. Letter of Pope St. Hilaire to the Bishops of France in 459.) From the date of the VIIF*^ Century, the Bishops w^ere constrained to promise under Oath, 1i ■ 22 .:it their consecration, that they would not allow any alie- natjon of ecclesiastical property to take place without the jnterveniion of the Pope. In 1468 Paul IJ. declared that he would invalidate every alienation of pcclesiasticai pro- perty made without the concurrence of the Sovereign Pontiff. In 1648 Innocent X. solemnly declared null alj t(ie secularisations decided by the treaty of Westphalia. In order that the property of the Church become the property of the State (which can only occur under circum- stances rare and exceptional) the concurrence of two powers, the spiritual and the temporal, is necessary. The consent which the first gives to an alienation so contrary to ordinary principles is never ba§ed upon any other motive but the interest of religion. Thus we find Pope Clement IX. suppressing on the 6th December, 16^8, at the solici- tation of the Republic of Venice, the three regular Orders of the Canons of St. George in Alga, of the Hieronymiles of Fesoles, and the Je^uates, and consenting that their property should be applied to the costs of the war pf Can- dia, that Christendom t|)en maintained against the Turks. The Sovereign Pontiff judged that the urgent necessity of defending the christian community against the infidels was more than equivalent to the utility of the three religious Orders. So, in like manner, Pope Pius VII. when he confirmed by the Concordat of the year IX, the alienation of the pro- perty of the Church of France was moved thereto "/or the sake of peace and the happy rccstablishment oft he " Catholic Religion.''^ We may take it as a settled point that the property of the Catholic Church cannot be legally disposed of hut in the interest of the Catholic religion. In ordinary cases this property should not be severed from the patrimony of the Church ; and if the religious establishment that originally possessed it should become extinct, the property should be transmitted to another religious establishment subject with regard to that proper- ty to the same obligations as the first. This transfer is effected by the concurrence of the spiritual and the tempo- ral powers. of h 23 ly alie- out the ed that cal pro- vereign null all iialia. »me the circum- of two r. The contrary r motive Illement le solici- : Orders nymites at their pf Can- 3 Turks, essity of iels was religious 3nfirme(i thp pro- ;o "lit Qft he )perty of f but in ) severed religious I become another t proper- •ansfer is e tempo- If under circumstances of a grave and special nature any such property should be severed from the patrimony of the Church and placed at the disposal of the State, the change can be ri.ade only with the express consent of the Sovereign Pontiff, who is governed in making the transfer by exalted religious considerations. Let us apply these principles to the Jesuits of Canada, and to the Estates possessed by them. The Jesuits of Canada formed an ecclesiastical establish- ment whose object was to instruct the Catholic youth of the Country and send missionaries among the Indians. These two functions of the Jesuits were in the nature of a religious service ; for the monastic orders which con- secrated their labours to education are considered as en- gaged in a Catholic work, because education well directed is the most certain guarantee of the preservation of the faith and of the salvation of souls ; never has this point been disputed. (See the passage above cited from cVHeri- court,) And, as to missions the evidence is equally strong. The Jesuits of Canada possessed Estates which they had derived partly from grants made by the King of France and by individuals, and partly from purchases made by their Society. The destination of them all was, to provide for the religious services with which the Jesuits were charged. This destination was the more clear because by their constitutions the .Jesuits were forbidden to possess property either in their aggregate or individual interest ; because the revenues of their propert^^ could only be employed for the purposes confided to them ; and that if the Members of the Congregation subsisted upon the produce of the pro- perty, it was in exchange for the services they rendered to the Colleges and other religious establishments to which their Estates were annexed. This was the condition of things in 1760, the epoch of the conquest. What could subsequently happen to affect this condition of things ? Two events were possible ; the one, the continuance o£' the Society. The other its destruction, as was in fact ac- complished by the decree of Clement XIV. 24 In the first hypothesis, this Society would retain its Estates, upon the understood condition of providinjjj for tho education of the Catholic youth of tlie Country and for the missions. In the second, the Estates of the Jesuits woukl have to be transferred to another reh'gious establishment, whether regular or secular, which would be required to fulfil the functions imposed upon the Jesuits, that is to say the ins- truction of the Catholic youth and the diffusion among the Indians of the light of the Gospel and the benefits of civi- lisation. (1). These two events were the only ones legally possible. And in either case the property must continue to form part of the patrimony of the Church. So, therefore, unless the conquest changed this state of things, it must be acknowledged that the Estates in question preserve to this day the character of property belonging to the Catholic Church, and that consequently any appropria- tion of them not exclusively Catholic, would be an abuse of power and an usurpation. We are hence led to inquire whether the conquest has changed this aspect of the question. This inquiry will be the subject of the following portion of the Memoir. §2. . What have been the effects of the cotujuest ? Upon the principles of public right recognized by mo- dern States, the conqueror'acquires only the sovereignty of the conquered country ; the rights of the dispossessed So- vereign are transferred to him ; but the effect of the con- quest goes no further. The conqueror cannot seize upon Estates belonging to individuals in any case in which the preceding Sovereign would not have been able to do so. Nor can he seize upon property belonging either to the (I]. In this case also, it would-be necessary to leave to the members of the Society of Jesuits the usufruct of the property or to pension them. This, indeed, is what the English Government honorably admitted as their due in leaving the ancient Jesuits the revenues of their Estates. 25 tail) its ; for the and for have to tvhelher lilfil the the ins- long the I of civi- possible. to form state of question nii;in2r to ipropria- in abuse ^est has will be by mo- ignty of >sed So- he con- seize 1 which o do so. to the B Society of is what the Jesuits the Church, charitable institutions, or public bodies; for this property has been so created cither for the spirit»iid or tem- poral welfare of the inhabitants, and ought to be respected, therefore, as much as private property. " The conqueror who takes a town or province from his enemy, " says Vattel," cannot justly at'C|uire over it any other rights than such as belonged to the sovereign against whom he has taken up arms. War authorizes him to possess himself of what belongs to his enemy : if he deprives him of the sovereignty of that town or province, he acquires it such as it is, with all its limitations and " modifications. Accordingly, care is usually taken to sti- " pulate, both in particular capitulations and in treaties of '* peace, that the towns and countries ceded shall retain all " their liberties, privileges and immunities. And why '* should they be deprived of them by the conqueror, on *' account of his quarrel with their sovereign? — {Book 3, " c/i. 13, § 199)." If, then, our capitulations and the treaty of peace were silentjthe common lawof nations would sustain our position. But these formal documents do in fact relieve the ques- tion from every doubt; and even supposing there was any uncertainty in their language, an interpretation should be adopted in accordance with the general rules of construc- tion established by the laws of nations, thai, u .o say, in a manner the most liberal and favorable to the inhal)itants of the conquered province. We affirm that the capitulation and the treaty are deci- sive. The capitulation of Quebec, that of Montreal, and the treaty of 1 763, grant to the inhabitants of Canada the exer- cise of the Catholic religion. If this were even an isolated clause, it would suffice ; for w^e cannot grant an end with- out also granting the means, and the diplomatic articles that guarantee to a conquered people the free exercise of the Catholic religion, guarantee thereby to the Catholic Church, the posvsession of its Estates which furnish it w ilh the necessary resources to meet the expences of public w'orship. But the capitulations and the treaty did not stop there, Vll 26 k — tht'ir provisions are so explicit as scarcely to need com- ment. Article o4 of the capitulation of Montreal expressly de- clares that " All the COMMUNITIES, and all the priests, " shall preserve their moveables, the projjerty and revenues *' of the seigniories and other estates which they possess, of " what nature soever they be ; and the same Estates shall be " preserved in their privileges, lights, honours, and exemp- " tions. " The Jesuits have therefore preserved the property of their Estates, as fully as they had it before the conquest And these Estates have preserved their rights, that is to say, their nature has remained the same, and they conti- nue impressed with the character of Church property, and oujrht to be exclusively applied to Catholic uses. The capitulation of Montreal even goes further, for it grants to the religious communities and to the Jesuits in particular, leave to sell in whole or in part the Estates and moveables ivhich they possess in the Colony, and to take with them or send to France the produce (Art. 35.) The conquering nation evidently acknowledged by these passages not only that she had not the right at that time to possess herself of the Jesuits' Estates, but that these Estates could not under any circumstances become her ♦property ; for if she could have foreseen any possible event whereby this might happen, she would not have granted to the Jesuits the liberty to sell their Estates and. carry the j)roduce away with them. If the Jesuits had then sold their Estates, they might according to the capitulation, have carried the price they received out of the Colony, and employed it in the support of other religious establishments elsewhere maintained by this society. In that case the Catholic religion would have exclusive- ly profited by the transaction. Why then should the Je- suits be put in a worse condition because tr.ey did not avail themselves of the permission given to them to sell, accorded by the capitulation ? England manifestly had a greater interest in the retention of these Estates in the hands in which she then found them than in seeing them 27 ed com- fssly de- j priests, revenues ssess, of shall be I exemp- / of their ;t hat is to ey conti- erty, and er, for it Jesuits in tates and ake with by these iiat time at these 3me her 3le event granted :o.rry the y might lice thev support lined by :clusive- the Je- did not I to sell, y had a in the ng them sold and the produce carried away into other Countries^ : by what reversal of all oC right ideas could she adopt a course of greater severity toward the Catholic religion in the former case than in the latter. It is to be observed that there is not, nor can there be, any question of selling these Estates and carrying the pro- duce into foreign Countries in the present day. The rea- son is Istly, that the treaty limited the power to sell to a period of 18 months after its date ; 2ndly, according to the capitulation, the power was given to each religious congre- gation with reference to its own Estates. It would there- fore have ceased with regard to the Jesuits' Estates with the suppression of that order, even had not the period fixed by the treaty expired. The Estates in question then must be directed to a Catholic object within the Province of Canada. The reasoning we offer upon this head is unan- swerable. If by virtue of the capitulation, the Catholic Church could appropriate the value of these Estates by selling them as she was entitled to do, how much stronger is her title to all the advantages attaching to them when putting them to religious uses by which this Country be- nefits. Will it be said that the 33d Article of the Capitulation of Montreal is opposed to the communities of e/eswi/s, of ^Ae J^ecollets, and the Priests of Saint Sulpice, because the English General refused the demand contained in that Ar- ticle until the pleasure of the King of England should be knoimi. The French General, it will be noticed, did not in that Article confine himself to the demand that the communi- ties should be maintained, — he further required that they should have continued to them the right to appoint to certain curacies and missions. It is evidently this latter point that was the cause of the refusal, for Article 33 cannot be taken in a sense contradictory to Articles 34 and 35 : and these Articles not only uphold the communities, but preserve to them in a plenary manner the possession of their Estates, But, if we went even the length of imagining that the idea of the English General, when he refused Article 33, was that his government might suppress these Societies, 28 lliere vvoukl slill remain sullicicnt to bear us out in our doctrine in the liu-t tliiit tliese societies were maintained in i\\e property of tlmtr 3itatcs and that the Estates preserved \.\\eu rlgkis ; hecause the suppression coukl tl»en only take place upon the condition of transferring the Estates to other Catholic establishments. The capitulation of Montreal does not relate only to tliat City and the territory dependent on it ; its provisions refer to the colony : meaning evidently the whole colony, and it is easy to perceive that it must be so ; it was the capitula- tion of iVlontreal that consummated the conquest ; the French General and his troops abandoned Canada and were to embark for France. (^Scc 12 and tlie fotlow'wg Articles of the ca/ntalatlon) ; in such a situation it was na- tural that the French General should stipulate for the iDliole colony ; and he did so in terms clear and distinct. Capittilations containing covenants relative to existing properties in a city or in a province have not less the force of law than treaties of peace ; Vattel expressly declares this ; and reason and good faith reject the contrary opinion. It is the capitulation that puts the conqueror in possession of his conquest ; how then could he pretend to the right of keeping his conquest and at the SLone time to the right of violating the conditions of the compact upon which he had obtained it ? If he had not subscribed to the conditions demanded by the vanquished, he would have pushed them to a desperate defence, the possible result of which might have been to turn the chances of the war, or at least to cause enormous losses. The conditions of a capitulation are therefore sacred. Moreover, the treaty of 1763, although it does not repro- duce in detail all the clauses of the capitulation of Montreal relative to property, contains implicitly the confirmation of these clauses, where it declares that all the. French inha- bitants and others who have been subjects of his Most Chris- tian Majesty may sell their Estates^ §*c. The religious com- munities not being excepted from this permission, are evi- dently comprised in it. If it were desired to exclude them, it would have been necessary to do so textually : an ex- press clause upon this subject would have been the more p ^ il 29 t in our ained in •eservcd lily lake tates to y to that )iis refer f, and it apitula- st ; tlie da and ollowirig was na- for the inct. exist! ni»' he force 'es this ; ion. It ;ssion of riiifht of rjo-ht of he had ndilions ed tiiem h might least to tulation •t repro- lontreal rmation \ch inha- t Chris- US corn- are evi- le them, : an ex- le more necessary, inasmuch as the ciipitulation of xMontreal had iornially i»ranted the rij;ht lo sell, and a treaty is never held to derogate from precedent stipulations unless the deroga- tion he clear and positive. If the treaty, after confirming to Ihe inhabitants of Cana- da the exercise of the Catholic Religion, adds these words : " as far as the lams if England pcrni'd" this restric- tion evidently does not refer to the appropriation of eccle- siastical Estates nor to the question of property in them,. hut uniquely to certain puhlic ceremonies, such as pro- cessions in the open air, which cannot take place in a country where Protestants are to he fomid side by side with Catholics and of which the Sovereign is Protestant. It results from all that has been advanced above, that the conquest has in no respect changed the nature of the Kslates of the Jesuits nor affected the exclusive right which the Catholic Church has over these Estates. Upon the suppression therefore of the Society of Jesuits in 1773, their legal situation was exactly the same as if the conquest had never taken place. By the suppression of the Order, two interests presented themselves for consideration. 1. — That of the Jesuits, then living, considered as indi- viduals. 2. — That of the Church with reference to the question of property in its estates. To each of these interests the principles foregoing apply, because, we repeat once more, the conquest had changed nothing either as to the nature or destination of these Estates. Upon the first point the British Government has done homage to the principle in leaving the Jesuits the en- joyment of their Estates until the death of the last member of the Order. Upon the second, the rules applicable to the matter should be adhered to. We have a right to declare that these Estates belong to the Catholic Church, that they cannot be applied to any other objects but such as shall be useful to tluit Church, and consequently, as it is at present proposed to devote the revenues to Edxication, a course of 30 );>roc('0(liiip; to which iK)one drcains of ofi'erin^ an objection, tliat these J^iStates ou^lit to be exclusively appropriated to tlie endovvnient of Catholic Collen^es or Schools. Never- theless they uii^ht be also employed in the support of missions haviii}]; for their object to bring over the Indians to the Catholic faith ; for, uncpiestionably, that was one of the original objects to which these Estates were destin- cd. These points should be arranoed in concert between the temporal authority and the spiritual authority, repre- sented, the first by the Government and the Le«i[islature of Canada, — the second by their Lordships the Bishops. We may observe, en passant, that the decree of Clemelit XIV was conformable to the maxims we liave brought forward. In one part of it, indeed, he declared that the means of subsistence should be provided for the morabers of the suppressed congregation. And as to their Estates, he declared that, •' The houses evacuated by them should be converted to pious Jises, ac- cording as it should be judged as to time and place the most conformable to the holy Canonfi, to the vjish of the founders, to the angmentotion of divine icorship, and to the public utility of the Church.''^ This Avas no unwarranted proceeding on tlie part of the Holy See ; it was the expression of the ecclesiastical law in force upon that point throughout the whole extent of the Catholic world. It may be urged that the Acts of the British Parliament already cited, seem to import that a part of the property in question may be appropriated to Protestant worship. To such an assertion we should reply that these Acts express no clear meaning to this effect. The first (that of 1774) commences by declaring that the clergy of the Catholic Church may hold, receive and enjoy their accustomed dues and riglUSf (sections.) The neces- sary consequence of this enactment is, that the laws of this Church, relative to the inalienability and exclusive appro- priation of its property, must be sustained. It is true that section 6 of the same Act adds, that the King of England may provide for the encouragement of the 31 objection, priated to Never- iupport of e Indians ; was one re cle.stin- t between ty, repre- slature of Hops. f Clement e brought means of M's of the le houses s tfses, ac- place the ish of the and to the art of the stical law ent of the arliament property orship. liese Acts iring that and enjoy le neces- ^s of this ve appro- that the cnt of the reli gion of the residue of the :> nt aecn^ uncd J'rotestant dues and rii^hts. Hut this provision of the Act could take elfect on.r in the event of its being shewn that there Was a residue, thai is to say, for example, that the revenues of the Jesuits' Es- tates exceeded what was necessary forlhe endowment of Colleges and Schools Now, from the information \vg have received, this is not so, and the revenue iVoin these estates presents no residue. Section 8, in guaranteeing to the inhabitants their pro- perty, adds these words : the reUgluas Orders and Coni- inunUles only excepted. But what is the meaning of this exception 1 One docs not clearly perceive it. Does it mean that the Government may, at its mere will and pleasure, seize upon the pro- perty of tliesc Orders and ConununUles ? It is impossible to adopt an interpretation so contrary to justice and the faith of treaties. This section rationally admits of but one of the two following interpretations : Either it signifies that the right of the communities is not as absolute as that of individuals, since should the re^ ceipts of the former present a residue, the government may employ the residue for the encouragement of the Protestant religion : Or, it signifies that in the event of an Order or a Com- munity being suppressed, the property of that Order or of that Community shall pass to other Catholic establish- ments. As respects the Act of 1790, it only re-enacts that of 1774 relative to the residue (or surplus) of the revenues. It simply adds, that in the event of a benefice becoming va- cant the growing rents and piolits of the same during the vacancy should betaken and applied to the encouragement of Protestant worship. Since the Parliament expressly limited its enactment to the rent and profits accruing daring the vacancy, it acknowledged that with this exception it had no right to the revenues, and still less to the property of the estates belonging to the Catholic Church. In France, the King had a right to the revenues of Arch- bishoprics and Bishoprics during the vacancy of their 32 Socs. Tliis rli;h(, Known by the nniric ()rr(ii,'r//6', did not ('lia!i;jjo till* cliaractrr of llii' properly oC IJislioprics and Aniibi.slioprics as property of llio C^liurcli. (I) The capiliilatioM of ^lonlreal had left uiideci(hHl the question of tifhes, the Mni'lish (ienu'ral havinjj; replied tliat iijwn this point all would depend upon the pleasure of the Kins':. 'riie Act of J\nTianiont of I7i)(), section .'>5, is more favo- ral)k^ to the Catholic Cler^^y than tlie capitulation, lor it maintains their ri^litto tilhes,only declaring that tin; Clergy shoulil collect none from })rotestants. How can we imagine that the l*arliM!uent which was more lil)eral than the capi- tulation upon this point, could intend to violate that same capitulation with respect to the property of the communi- ties? The two Acts of Parliament then contain no positive provisions in favor of the system we combat ; and that which best proves it is the conduct of the British Govern- ment, which would neither ap])ropriate to itscli' the Jesuits' Estates, nor concede them to l^ord Amherst, but has kept in reserve the rents and profits of them. Has it not thereby implicitly avowed the justice oi'the doctrine of the Bishop of Quebec, a d(jctrine to which Mr. Smith, President of the Commission of ITSD, give at least an indirect assent. Let us however go still further, and su])pose that the Acts of 1774 and 1790 do proclaim principles contrary to those we have shewn to be the correct ones — these Acts would not preclude Canadian legislation upon the subject. The Act of 1790 extends to the Legislative Council and Asaemhhj of Canada the power of varijing wholly or in party Its own provisions as well as the provisions of the Act of 1774. The Act of 1832 is still more precise upon this head, for it confides without reserve to Provincial legislation f^n aiiijro;)riation of the funds arising from the (1) It may be remarked, at passant, lliat in its ori;j;in, lliis ri^ht of /te^fc was limited to certain Sees, that it recite J upon sprciiJ causes, such as patronajre, express clauses in {irants, 6v'c,. rather than u|ion the royal .nithority ronsiilored in its essence ; that the ex- tension of the riiflit to all Sees is recent, and that tlie Ici^ality of this extension is very <]uestional)Ie. »So also might we ijiieslion the ri;j:ht ol I\irliaiii(>nt to i^jiply to Protestant worship the revenues of vacant lienciices. But the forefroing aru;uincnt is strcnfrthencd by these considerations. 33 did not ics and lod the led tliat c of the )re favo- ri, lor it jClerp;y iinngine [lie capi- at same )miiiuni- positive ind that (iovern- ! Jesuits' has kept t tliereby e Bishop sident of Lissent. that the Urary to CSC Acts subject. mc'd and Uy or in IS of the ise upon Vovincial from the Ic was limitctl CSS clauses in that the cx- msion is very to Protestant strcTifTthcncd /'JsUUcs nf tliG former order of Jesuits exdasivcbj to edu- cation. The T.pgislature of Canada is not therefore lettered by any pre< ^'dent. It has but a single point to determine : what is the solution of the question the most just and the most conformable to treaties ? The solution is that which we hav pointed out. We aiHrm that our solution is the most conformable to the spirit of the Act of 1832, to propriety, and the maxims of a sound policy : To the spirit of the Act of 1832 ; for why, it may be asked, does this Act direct that the Jesuits' Estates shall be devoted to education ? Because that was their primi- tive destination, and they belonged to a teaching congrega- tion. But if we appeal to the primitive destination of this property as a guide to its present appropriation we must do so without limitation and with exactitude : and it will be ibund that the direction given to the property was not, vaguely and indefinitely, to education ; but to Catholic education. It is, therefore, exclusively, to Catholic edu- cation that it should be devoted in the present day. The solution of the question advocated by us is we have said in accordance with jjropriety and the maxims of a sound policy. From both these sources we derive support to our opinion. In truth, in the eyes of Catholics the Es- tates in question possess a character of sacredness, of which they cannot be divested but by a decision of the Holy See analogous to that contained in the Concordat of the year IX. The feelings of the Catholics of Canada would, then, be wounded by the abstraction of a portion of these Estates to form an endowment either for Protestant worship or for Protestant schools. They would be shocked, and with reason, at so glaring a departure from the laws of the Catholic Church, from the intention of the founders, and the stipulations of treaties. Policy is opposed to our giving a needless shock to sentiments of this kind. Even in 1774 and 1790 it was felt that this could not be done, and those were epochs when the principles of religious tolerance were yet ill understood and less practised ; but they have since happily made great progress, and the same 3 34 ideas which have brought about freetloni of religious wor- ship in France, and, in England, the emancipation of the Catholics, should determine the Legislature of Canada to reserve exclusively for the Catholic religion the resour- ces that originally were created only for her use, and which cannot be turned into other channels without caus- ing in the breasts of all who profess this form of worship a profound and just affliction. ■: I This Memoir has been composed in the belief that all who will be called upon to judge of its merits, possess suf- ficient knowledge of Canadian history and of public consti- tutional law to be able to appreciate the second part, that which relates to the effects of the conquest. As to the first division of the work, which treats of the nature of the property under consideration, and the conclu- sions to be drawn from the facts, the reader before he con- demns our position, ought at least to traverse the wide field of Catholic history, and make himself master of the principles and facts upon which w^e have relied. We expect the same justice as well from those of our readers to whom, by reason of conformity in point of reli- gion, the subjects treated upon are familiar, as from those who, professing other creeds, are still too equitable and too enlightened to consider these Estates otherwise than as Catholic in their origin and uses. With respect to the capitulations and the treaties, and the legislative enactments that succeeded them, all will interpret them, we doubt not, in the most liberal sense, and in that spirit which presides over all deliberations of the British mind : render unto every man that ivhicli is Im, ti (f i wor- )f the idci to ?sour- , and caus- jrship [•dt all ss su(- consti- t, that of the ;oiiclu- \e con- ; wide of the of our of reli- those 16 and than »s, and I will sense, ions of is Im. NOTES ON EDUCATION. The preservation of the Catholic Faith in Canada is guaranteed by the Fundamental Act, whereby this Colony is incorporated with the English nation, and by the solemn promise of its Sovereigns. Its rights are therefore conse- crated, and in order that they become not an empty name, they ought to exercise a salutary influence over all the Catholic classes of society, and at every age of life. Education, the most vital element of society, imperiously demands its succour. " The public school," said Cousin in 1833, " is in truth *' a sanctuary where religion is as much in request as in " our temples." The English Government in its project of 1839 declared that religion must form an inseparable element of instruc- tion. " Without the intervention of morality and religion," said Guizot, " all intellectual developement is a positive " danger to society — the atmosphere of the school should " be moral and religious." A long and sad experience teaches that there is no branch of knowledge that there have not been found minds, in bondage to their eccentric conceptions, capable more or less of abusing to the detriment of religion or sound morali- ty. " Science, philosophy, history are in continual contact with questions of religion," ( of Mr. de Broglie in 18 ) " The union between science and faith is indissoluble." " Science needs a divine aroma," said Bacon, " to save it from corruption." Religion, then, serves as a basis to all science as to all society. Without her aid we have only a multiplicity of contradictory systems, and the confusion of doctrines lead- ing to doubt or indifference. Our age has been too honest and sincere in its faith to identify itself with the impieties of the last. It has avowed, that religion, far from being adverse to the advancement 36 and propagation of all branches of human knowledge, has i been on the contrary their safe-guard and most constant ally. It is to the Catholic Church that the learned owe the establishment of the first Universities, those cherished cradles of literature and science. The Catholic population of Canada, in the interest of the faith, and in order to leave intact this portion, the most fair of the heritage of its fathers, under the protection of a Government full of benevolence and justice, has then the right to desire a complete system of instruction suitable to the industrial and mercantile classes, and which at the same time will satisfy the wants of more elevated classes of society and professional men, with all the guarantees of orthodoxy and morality that the interests of the faith demand. This want has for a long time past been felt among a people whose nationality has resisted all the phases of the revolutions that have disturbed the country. ■ The people of Belgium wished to preserve their religion, and deemed it essential to establish a Catholic University, through which the youth of the country might find a ready path to all the sciences, free from the contagion of error and immorality. The Catholics of that country were well aware that the imperious necessity of a religious education could be met only by the free and independent, and direct intervention of the Catholic Bishops, whose principal duty it is to watch over the conservation of the Holy Doctrine.— They possess the competent authority to judge and watch over its diffusion. It is only in the instruction given under their direction that there is sufficient security. In this University all human sciences have their sanctuary. From the very elements of knowledge to the more elevated studies of Law, Medicine, History, Philosophy and Mathe- matics, the Catholic youth find all that is essential to their future worldly career, without danger to their faith. Eight years of the most striking success, both scientific and reli- gious, have already crowned this noble enterprise. It is a similar course of instruction, having the same object, and by the same means, that the Catholic Clergy of Canada wish to offer to the industrial and elevated classes of their communion. 37 ;e, has tnstant d owe Tished ?rest of e most Dnof a len the able to at the classes itees of e faith mong a s of the eligion, versity, a ready 3f error ?re well ucation d direct 3al duty trine. — 1 watch n under In this From ilevated Mathe- to their Eight jnd reli- le same 'lergy of 1 classes The Protestant Universities may suffice for tlie popula- tion of that belief. They cannot serve for the Catholic population without serious prejudice to its faith. If it were desired to introduce religious neutrality into the system of instruction, (a thing impossible in practice,) it would be easy to discover a perfect negative, which would soon infallibly degenerate into hostility. If Ecclesiastical influence and authority are to be limited to a secondary and consultative part, if the rights of their order are reduced to simple advice or simple inspection, if the instruction to be given by it cannot go beyond a few oral and isolated lessons in the grade of mathematics and languages, its intervention will be inefficacious and often useless ; it will be always insufficient and incomplete. It must be admitted that religious authority, to fulfil its mission, must direct the choice of masters, prescribe the course of instruction, and lay down the regulations of dis- cipline. Without this we may have nominally the princi- ple of religious education, but we shall have it only in name, the substance will not be there, the thing expressed by that name will be wanting. A system of instruction under other auspices, would also involve enormous expenses out of all proportion to the re- sults. The Colleges and Universities, purely laic, existing in the present day, sufficiently prove this. The costly and fruitless attempts to establish a Normal School in Canada present us with a new proof. We must carefully avoid falling into such errors, least we experience disappointment in the object we have at heart. The Catholic Bishops of Canada desire to see founded a University, adequate to the wants of the country, in which degrees, giving the right to practice the liberal professions, may be taken. The school instruction, constituting the first efforts upon the understanding of the infant, would be given in a (col- lege, properly speaking, wiiere the industrial and mercantile classes, as well as other classes of society, would obtain the education suitable to them. The higher order of education would be given in the public classes of the University. :iS APPENDIX. 'I- \ It' ,, , , DISTRIBUTION OF COLLEGE STUDIES. : ■ 1. — Common Classes, composed of two sections. — Religious Studies ; the French and Enghsh languages, and their literature ; Philosophy ; Ancient, Modern and National History ; Geography and Cosmography ; Elementary Astronomy ; the elements of Physics and of Chemistry ; the elements of Natural History ; Zoology, Botany, Mineralogy, Geology ; Mathematics, Arithmetic, Algebra, Geometry, Trigonometry. Accomplishments — Draw- ing, Painting, Music, Gymnastics, &c. 2. — Special Classes, for Commerce and Industry. — Commercial Mathema- tics ; Book-Keeping ; Political and Industrial Economy; Mechanics ; History, Composition, and use of Machines. Higher branches of the Mathematics — Analytical Geometry, description, &c. ; Application of Mathematics to Pers- pective, Civil and Military Architecture ; the construction of Machinery, Masonry, Carpentry ; Industrial Physics and Chemistry ; Land Surveying ; Linear, Topographic and Architectural Drawing; Decorative Drawing, Modelling. For tlie University Classes, the Greek and Latin Languages and Literature. SUPERIOR STUDIES OF THE UNIVERSITY. Law ; Medicine ; Belles Lettres ; Natural, Historical, Philosophical and Mathematical Sciences. The expense to be incurred Avould be for, — 1. — The construction or hiring of a suitable edifice. 2. — Furniture, Books, needful apparatus. 3. — Salaries of Prolessors. 4. — A certain number of purses for competition in learning, to stimulate emulation. 5. — Prizes and Rewards. , . . . > NOTICE UPON THE ENDOWMENTS FOR EDUCATION IN UPPER CANADA. 1 — University of " King^s College,^'' established in Toronto by Royal Charter granted in 1828. This institution is authorized to possess a revenue of ^15,000 per annum. It has received from the Government, for sixteen years to the 1st January, 1844, an annual subsidy of £1,000, Sterling. It is not known whether this subsidy has been or will be demanded from the above date. It has also received and possesses an endowment in public lands to the extent of 225,944 acres. These lands, having formed part of what were called Crown Reserves, and being disseminated in small lots in different Townships, were found, at the epoch of the endowment, to have acquired considerable- value, bv their contiguity to improved lands, and by the clearances and build- ings, either by occupiers without title, or by tenants who had taken them on lease for terms of years. These leases were, even at that time, a source of il 39 coneidcrable revenue. On tlic Ist of Januury, 1SH3, one liuifof these landb-, or 110,610 acres, had been sold, and 95,334 acres were occupied under lease, BO that only 20,000 acres remained unproductive. The quantity sold had pro- duced £125,809 8s. 9d., making twenty two shillings and nine pence an acre. The rents of lands on lease had, at the same period, produced the sum oi' c£ 16,837 18s. 4d. The e.xpenses of the establishment, for the ground, buildings, furniture, and management, had amounted to £76,797 lis. 9d. The expenses of the Treasurer's office alone, are £1,200 annually. 2. — College of Upper Canada, established also at Toronto in 1829, and joined in 1837 to the University of Klng^s College. At the same date of 1st Jfanuary, 1843, this institution had received for endowment 63,268 acres of pulilic lands, a portion ol" which had then been sold, another portion held on lease, and the remainder unoccupied. It has also received ground in the City of Toronto, covering a superficies of about 15 acres. The lands sold had produced £15,317 5s., averaging fifteen shillings and seven pence the acre. The sale of about one quarter of tlie ground, situated within the City of Toronto, has produced more than £4,200. The expenses of the College, for the fourteen years, have amounted to £79,387 12s. 4d., one-fifth of which sum has gone for the primitive expenses of the establishment. The annual salary of the Principal is £666 13s. 4d., Currency, or £600, Sterling. The Profes- sors with the lowest salaries, have £100, Sterling. Over and above the estates which bring or ought to bring a revenue to tlie two preceding united institutions, the land and improvements which they oc- cupy at Toronto are valued at £36,000. The foregoing details arc drav^rn from the accounts rendered by tlie institu- tions themselves. 3. — Grammar Schools, in the Districts. These schools established by vir- tue of a Provincial law of 1807, in each of the territorial divisions called Dis- tricts, of which there arc at present more ihan twenty, have a considerable en- dowment in public lands, called School lands. The principal in each District, besides this fund, enjoys a salary of £100 annually. 4. — Victoria College, established at Cobourg, belonging to the Wcsjeyan Methodists, received a loan of £4,100 in 1837 by order of the Secretary of tlic Colonies. 5. — Grantham Acculemy has also received a loan of £250 in obedience to a Provincial law. In what precedes, no account is taken of the annual grants out of the public funds made since the re-union of the two Provinces to the institutions above mentioned, and to others. These grants have amounted to considerable sums. Montreal :— Printed by Dcwbarats & Dcrbishiro, f^lucpn's Printer?.