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 '.'■' 
 
A JESUIT FATHER ON THE ACT. 
 
 {T/ie Globe, Toronto, March 23, 1889). 
 
 Answer to the " Opinions of The Law Journal." 
 
 The whole gisl of the objection is contained in the following extract, 
 lo which I take exception. All other citations of laws, etc., etc., and 
 conclusions drawn thereform do not differ materially from it : — 
 
 " But the statutes of Elizabeth are precise and emphatic and in 
 express words abolish the usurped power and jurisdiction of the Bishop 
 of Rome, heretofore un 'awfully claimed and usurped within this realm, 
 and other the dominions to the Queen's Majesty belonging, (i Eliz., 
 c. 1. ; 13 Eliz., c. 2.) 
 
 " Neither the treaty surrendering Canada to England, nor the Qaebec 
 Act of 1774, altered the statutory prohibitions against the foreign 
 jiirisdiction of the Pope Both granted to the Fre:ich Canadian subjects 
 of the Crown liberty to profess the Roman Catholic religion, 'so far as 
 the laws of Great Britain parniit ' and in subjection to the Crown and 
 Parliament of Great Britain." 
 
 What the Law Journal terms " liberty to profess " is thus stated in the 
 capitulations and treaty: — Capit. of Quebec, art, 6, "Libre exercice 
 a la Religion Romaine." Ca])it. of Montreal and all Canada, art. 26, 
 " The free exercise of the Catholic Apostolic and Roman religion shall 
 sul)sist entire," etc., etc. "Granted as to the free exercise of their 
 religion," etc. (See pamphlet.---" Gazette and Majl's campaign," 
 etc , p. 36). 
 
 Treaty : — " His Britannic Majesty agrees to grant the liberty of the 
 Catholic religion to the inhabitants of Canada. He will consequently 
 give the mGs;t effectual order that his new Roman Catholic si bjects 
 may profess the worship of their religion according to the rites of the 
 Roman Church, as far as the laws of Great Britain permit (le permet- 
 tront)." (Ibid., p. 38.) 
 
 The Law Journal sets at naught two undeniable principles ; the key 
 of the whole question : — Treaties become the supreme law of the land. 
 (Ibid., pp. 34, 35). The penal laws of Elizabeth, etc., did not extend 
 to the Colonies. (Ibid., pp. 46, 67.) 
 
 That the penal laws dit not extend to the Colonies will be admitted 
 by all. (See pamphlet, pp. 46, 47.') 
 
 But besides the general principle, there were other more cogent 
 reasons why they should have no force in Canada. Treaties and capitul- 
 ations are the supreme law of the land, so that even if the king had the 
 right to extend the penal laws to other dependencies he precluded him- 
 self by treaty stipulations from extending them to Canada. 
 
 ■^f" 
 
 , 
 
 .^ .i- 
 
I 
 
 Rotified treaties are beyond tlie powers of King or parliament, 
 Ihougli the Constilution itself be not. (See pamphlet, p. 34.) 
 
 So that even were there a constitutional point ceded in such solemn 
 compacts, it is beyond the i)ower of all the branches of the Legislature 
 to repeal it. The application of the principle has a stronger binding 
 force when there is no question of subsequent but of antecedent legis- 
 lation, for in the latter case inadvertency cannot be pleaded in pal- 
 liation, as the penal laws existed i)reviously and were fully known to 
 the contracting party who ceded his right. 
 
 Chitty is very explicit in the matter, though had Chitty never written 
 reason itself would force us to the same conclusion : 
 
 *' Nor can the King legally disregard or violate the articles on which 
 a country is surrendered or ceded but such articles are sacred and 
 inviolable according to their true intent and meaning." (Prerogatives, 
 etc., ch. iii., p. 20, edit. London, 1820.) (Ibid., p. 35.) 
 
 " The King may preclude himself from the exercise of his prerogative 
 legislative authority in the first instance over a conquered or ceded 
 country by promising to vest in it an assembly of the inhabitants, and 
 a governor, or by any measure of a similar nature," etc., etc. (Prero- 
 gatives, p. 30.) (Ibid., p. 35 ) 
 
 Nor is it necessary that the Sovereign intervene directly. 
 "Since the general of an army and the governor of a town must be 
 naturally invested with all the powers necessary for the exercise of 
 their respectives functions, we have a right to presume that they pos- 
 sess those powers, and that of concluding a capitulation is certainly 
 one of the number, especially when they cannot wait for the Sovereign's 
 order. A treaty made by them on that subject is therefore valid and 
 binds the Sovereigns in whose names and by whose authority the 
 respective commanders have acted." (Chitty's de Vattel, b. iii., ch, 
 xvi., sec. 261.) (Ibid., p 42.) 
 
 And when the conquering sovereign oversteps his power as in the 
 proclamation of the 7th of October, 1763, relative to the new Govern- 
 ments in North America, which pro lamation was at variance with the 
 treaty, his very Attorney-General, 'i'hurlow, in the House of Commons, 
 scouts at the idea of its provisions being binding : 
 
 " With regard to the proclamation, I never imagined that a proclam- 
 ation so exceedingly loose and general could be pleaded as an authority. 
 I stated in the beginning that it did not affect to relate to Ganada, but 
 I said that the capitulation did reserve all their effects, moveable and 
 immoveable. But even if it were otherwise is it to be supposed that 
 the tithe would accrue to the King? The tithe is collateral to the land, 
 not sunk in it. To give the right to it, is giving to the secular body, 
 as well as the regular clergy, all they were in possession of before. It 
 was always my opinion an established fact that the clergy in Canada 
 were entitled to tithes, though they might not have sued for them." 
 (Dc ites, 1774, p. 71 ; see also p. 68.) 
 
 The then Premier, Lord North, was equally emphatic : — " Whatever 
 the proclamation may have done, it certainly did not repeal the definite 
 treaty." (Ibid., p. 63.) 
 
 We all know that James Marriot, the King's advocate, in his letter 
 of May 1 2th, 1765, to the Attorney-General and Solicitor-General, Sir 
 Fletcher Norton and William de Gr^y, held a different view. But only 
 
8 
 
 one month later, on June loth, these two law officers of the Crown 
 returned a negative answer to the following question submitted to 
 ilem by the Lords of Plantation Affairs : — " Are not the Roman Catholic 
 subjects of His Majesty, residing in the countries of America ceded to 
 His Majesty, subject in those Colonies to the same civil disabilities and 
 penalties to which Roman Catholics in the realm are subject by law ? " 
 (Pamphlet, p. 67.) 
 
 The King himself understood perfectly well and admitted the 
 principle that he was bound by the treaty over and above all other 
 obligations, though as a matter of fact he may not have been thoroughly 
 informed as to the full contents of the treaty itself. This is evident 
 from a cWuse in the Royal Instructions of 1791 : — 
 
 Ibid., pp. 49, 50 : — " It is our will and pleasure that all other reli- 
 gious seminaries and communities (that of the Jesuits only excepted) do 
 for the present, and until we can he more fully informed of the true 
 state of them and hoicifar they are not essential to the free exercise of 
 the religion of the Church of Rome as allowed within our said Province, 
 remain upon their present establishments." (Chisholm Papers, p. 150, 
 Library of Parliament, Ottawa, E. No. 421.) 
 
 Not to speak, therefore, of the fact that the Jesuits remained a body 
 corporate down to 1791, and very likelj^ to the moment of their ex- 
 tinction, all these different facts go to prove not only the principle 
 that the different enactments quoted so voluminously by The Law 
 Journal were never considered as binding in Canada, but that in 
 practice they never found their application in the Colony. 
 
 What now of the principle so strongly emphasized by The Law 
 Journal, " That the statutes of Elizabeth in express words abolish the 
 usurped power and jurisdiction of the bishops of Rome, heretofore 
 unlawfully claimed and usurjjed within this realm and other dominions 
 to the Queen's Majesty belonging"? 
 
 I say that even in the hypothesis that they had in general any force 
 in the Colonies, by treaty they were excluded from finding application 
 here. The treaty was of a nature to suspend such application in other 
 points, as is clear from what has preceded. If it had power in one 
 point, regarding such enactments as penal, it had it in all ; for there 
 was never question of any other save spiritual jurisdiction. Nor could 
 there be any free exercise of the Roman Catholic religion in any 
 country without toleration in the exercise of that spiritual jurisdiction. 
 
 But in Canada it went beyond toleration, it extended to recognition, 
 and Lord Bathurst, in his letter dated the 2nd July, 1813, was the first 
 Secretary for the Colonies to officially recognize M. Plessis, who had 
 been consecrated on the authorization of Papal Bulls, as the Catholic 
 Bishop of Quebec. The extract from this letter may be found in Vol. 
 6, p. 312, of Ghristik's History of Canada. 
 
 Mr. H. W. Ryland's conscientious scruples as to the propriety of 
 such recognition were allayed by Secretary Brenton's letter of the 2nd 
 November, 18 13, which runs as follows : — 
 
 " As by the enclosed extract from Lord Bathurst's letter respecting 
 the additional allowance to the Rev. M. Plessis, he appears to recog- 
 nise him as the Catholic Bishop of Quebec. His Excellency does not 
 see any objection to a compliance with Mr. de Plessis' wishes in 
 styling him Roman Catholic Bishop of Quebec, unless there should 
 
4 
 
 V ! ! 
 
 ^\ n 
 
 m 
 
 be any particular instruction of His Majesty to the contrary." (Ibid,, 
 
 P-3I2.) 
 
 Mr. Rylund could only suggest the Royal Instriictions of 1791 ; but 
 no heed was paid to his remonstrance. (Ibid., p. 313). 
 
 On the 30th April, 181 7, was issued the mandamus which gave 
 Mgr. Plessis a seat in the Legislative Council in his capacity of Ca- 
 tholic Bishoi of Quebec. Mr. Scwell protested against this measure 
 as tending to establish Papal sui)remacy ; he even endeavored to j^er- 
 suadc the Ministers to reconsider their decision, insisting that they 
 should at least save apjjearances, but he could obtain nothing, while 
 Lord Bathurtt went still further and consented to recognize a coad- 
 jutor Bishop cum futura snccessione whenever he would be presented 
 to the Governor. (Etudes Historiques et L^gales sur la Liberte Reli- 
 gieuse en Canada, par S. Pagnuelo, Q. C, Montreal, 1872). 
 
 It is by far too late in the day to question the constitutionality of the 
 incorporation of religious orders. At least fifty years .ago the Corpo- 
 ration of St Sulpice was recognised, since which time the Oblates, the 
 Redemptorists. the Dominicans and others have been in their turn 
 iucor])orted without a word of remonstrance. 
 
 If The Law Journal is really anxious to test the constitutionality of 
 the Act of a Provincial Government based on the validity of Pa])al 
 bulls, we recommend to its consideration as a test case ihe Episcopal 
 Cor[)oration of " The Roman Catholic Bishop of Montreal in the Pro- 
 vince of Lower Canada." 
 
 Just fifty years ago on the 15th of next August, Governor (^olborne 
 issued under the seal of the Province letters patent of incorporation 
 and '' aniortissement," constituting Mgr. Jean Jacques Lartigue, Bishop 
 of the Roman Catholic Diocese of Montreal, and his successors, a 
 sole ecclesiastical corporation, v/ith the above-mentioned appellation, 
 with perpetual succession for him and his succcs.sors (Pagnuelo, Ibid., 
 p. 160.) 
 
 We have here a Provincial Act depending.; entirely on Papal bulls 
 and Papal approbation ; for no other than the one chosen by the 
 Holy See can be '•eccgnized as forming that sole corporation, and 
 had Mgr. Lartigue been removed or transferred 'lo another see, he 
 would have ceased forthwith to be sole corporator. Two bishops 
 have since succeeded him without remonstrance or protestation. 
 • If, then, the Jesuit incorporation be unconstitutional, the Episcopal 
 Corporation of Montreal is unconstitutional for a like reason. If the 
 Jesuit l)ill of compensation be unconst.tutional for the reason that the 
 Provincial Act is made dependent on the will of the Pope, a similar 
 state of things would necessarily invalidate the incorporation of the 
 Roman Catholic Bishop of Montreal. 
 
 This corporation has received the sanction of time and of more 
 than one subsequent legislative Act. It will consequently be apparent 
 to all that if the issue raised by The Law Journal were ever brought 
 before the Privy Council it could not for one moment be seriously 
 maintained. 
 
 A. E. Jones, S. J. 
 St. Mary's College, Montreal, March 19, 1889. 
 
" (Ibid., 
 
 791 ; but 
 
 ich gave 
 ^ of Ca- 
 
 measiire 
 i to ])cr- 
 hal they 
 ig, while 
 
 a coad- 
 iresented 
 ?rte Reli- 
 
 ity of the 
 J Corpo- 
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 leir turn 
 
 )nality of 
 
 of Papal 
 
 Episcopal 
 
 the Pro- 
 
 Colborne 
 rporation 
 e, Bishop 
 essors, a 
 pellation, 
 ;lo, Ibid., 
 
 pal bulls 
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 ) bishops 
 an. 
 
 Episcopal 
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 a similar 
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 i of more 
 apparent 
 
 r brought 
 seriously 
 
 S.J.