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Les diagrammes suivants illustrent la mdthode. 1 2 3 32X 1 2 3 4 5 6 ^«.;"i. >B^'-'- jA«isS"^^' ■'-•*'- ■■■-"•it&*.' ;!'.- If 4'^ r/ ■^i ^ A a OPINION OF TWELVE OF THE MOST EMINENT ADVOCATES OF PARIS, TOUCHING THE RIGHT OF THE SEMIXARY OF MONTREAL, IN CANADA, TO CERTAIN PROPERTY. The undersigned Counsel, after having read, Istly. The Treaty of Peace between France and England, signed in 1763 : 2ndly. The Act passed between the Sulpicians of Paris and those of Montrealj on the 29th April 1764 ; Are of opinion that the right of property of the Semi- nary of Montreal is incontestible : an opinion which they are about to support by a statement of facts, an analysis of the said Acts and the developement of established principles. The Company of Priests of the Seminary of St. Sulpice was a Religious Community which, like all other Com- munities of the same kind, was composed of several establishments. — The origin and source of this Company was the Seminary of St. Sulpic^ at Paris. — The last 3 mentioned establishment was the Chief seat of the Asso- ciation, and was the residence of the Superior General Other establishments in various other places, formed the dependencies or parts of the Association. Thus there was a Seminary at Puyin Velay, another at Bourges ; and it was in this manner that the Seminary of Montreal in Canada had been formed. The last mentioned Seminary was enriched by several acts of endowment, of which it is important to give an account. By the tenor of divers Notarial Acts, and by virtue of the Letters Patent, granted by Louis XIV. in May 1677, (the said Letters Patent being enregistered and filed of record in the Conseil Souverain at Quebec,) the Commu- nity of Priests of St. Sulpice became proprietor of the Lands and Seigniory of the Island of Montreal in Cana- da, &c. ; and it was expressly stipulated in the said acts of endowment, that the said property should be appropria- ted to the use of the Mission in that Country. For more than a century the Community of the Priests of St. Sulpice had peaceably enjoyed the benefit of the said Donation, the conditions of which they carefully fulfilled, when a great political event occurred which de- prived the Sulpicians of Paris of the power of continuing to accomplish the intentions of the Founders. A Treaty of Peace was signed between France and England in 1763. Py the 4th article of this Treaty, His most Christian B 3 109 8 Majesty ceded and guaranteed Canada and all its depen- dencies to His Britannic Majesty, in full right, with the Sovereignty, property, possession and rights acquired by Treaty or otherwise which the Crown of France theretofore had over the said country and its inhabitants. And His Britannic Majesty, on his part, agreed to grant to the inhabitants of Canada, the liberty of the Catholic Religion, and bound Himself to give the most effectual orders that his new Roman Catholic subjects might freely exercise their religion: and His Biitannic Ma- jesty further agreed that from the day of the exchange of the ratification of the Treaty, the subjects of the King of France should be allowed the term of eighteen months to retire with all freedom and safety wherever they should think proper and to sell their estates, provided it was to subjects of His Britannic Majesty. It appears to be certain, (although there is nothing to shew it in the Treaty,) that after the expiration of that term, the unsold property of the French Subjects were to be confiscated to the profit of the Crown of England.— Therefore, all the foreigners and the colonists who were possessed of property lying in that part of North Ameri- ca, and were unwilling to become subjects of His Bri- tannic Majesty, were bound to alienate such property on pain of its confiscation.— Such alienation could only be made to those who were to remain British subjects, and was to be consummated within the term of eighteen J months, reckoning from the exchange of the ratification of the Treaty. It was very evident that all the Members of the Com- munity of St. Sulpice could not become British Subjects by naturalization. — It was, moreover, very evident that the Sale of the property given as aforesaid, would be in direct opposition to that essential condition of the Do- nation which religion had dictated, viz : that the property should be applied to the use of the Mission. — Under the obligation also to find a purchaser among the subjects of His Britannic Majesty, is it not certain that to sell the property would have been to sacrifice it for a very inade- quate price ? — Under these circumstances, . the course adopted by the Community was that which the nature of the things seemed to point out and prescribe. The Priests who were at Montreal took the oath of allegiance, became British Subjects, and thus preserved the quality necessary to enable them to enjoy the property, and to accomplish the conditions, on which it was given. From that moment, the said Priests have formed in Canada a Community of British subjects, into which no person has since been received who was not a subject of His Britannic Majesty. From that moment too, and conformably to the inten- tions of the King of England, there ceased to be between the Sulpicians of Canada and of those France, any connec- tion of property, administration or dependence, and i^^" was, moreover, nothing but a necessary consequence of the exclusive rights which the Canadian Priests had recently acquired to the property aforesaid. Reason points out that a Donation made to a Commu- nity, must naturally devolve upon and be concentrated in those Members of the Community who are capable of profiting by the contract, and of fulfilling the conditions on which the Donation was made ; it was perhaps, even unnecessary that the other 31 embers of the Community should acknowledge, as vested in the English Sulpicians, rights which the latter possessed from the mere nature of things, and with which they were, as one may say, invest- ed by effect of the Donation. Nevertheless an act of acknowledgment exists, and it must be made known. This Act, dated 29th April, 1764, was passed before Notaries, and is between Messire Jean Couturier, Doc- tor of Sorbonne and Superior of the Seminary of St. Sulpice, at Paris ; Messire de Beaupoil, Messire Claude Bourachot, Messire Louis Legrand, and Messire Jean Moiron, all Priests of the Seminary of St. Sulpice, at Paris, and there resident, as representing the said Se- minary, on the one part ; and Messire Etienne de Mont- golfier, Superior of the Seminary of Montreal, in Canada, stipulating for himself and for the Community of the said Seminary, on the other part. After citing the Donations, and the letters patent^ authorising the acceptation thereof ; and after quoting the conditions of the Treaty of Peace of 1763, and the orders communicated to the Ecclesias- '6 tics of Canada who had become British Subjects, to dis- continue all connection with the Seminary of Paris, the parties express themselves thus : " Orders so precise and absolute, issued by a sovereign " authority which has the power of enforcing obedience, " place the Seminary of St. Sulpice at Paris in the most " embarrassing position, if it does not sell the lands, pro- " perty and rights belonging to it in Canada, they will " undoubtedly be confiscated ; — if it sells them, it will ** not fulfill the intention of the donors of the said lands, " property and rights, nor the conditions on which they <« were given, since the assistance and succour which the ** said property has hitherto afforded to the cause of Re- ** ligion would be no longer afforded : — it would be ne- " cessary to part with the property for much less than " its value, and to accept the first purchaser that might «* offer, who assuredly wojld not offer what the proper- " ty is worth, and who might perhaps be or become in- " solvent. It would be impossible not to except from ** such sale, the buildings which are essentially neces- ** sary to the Ecclesiastics who compose the Seminary of ** Montreal, and that portion of the property by the re- " venue of which they are actually supported ; and con- " sequently the Ecclesiastics who are scattered among " the Curacies and Missions for the support and advance- " ment of Religion could no longer continue their good " work. The Ecclesiastics who have remained in Cana- ** da, have taken the oath of fidelity to the King of i( (( " Great Britain, as their Sovereign and have become his ** subjects. " Under these circumstances, the persons above men- " tioned, acting for the Community of the Seminary of ** St. Sulpice, actuated by the same relij^ious motives, ** which prompted the donation made to their Seminary " as aforesaid, and earnestly designing as far as in them " lies, to fulfill the intentions of the donors : after mature •* deliberation on the part of the Community which they represent, and consulting less the interests of the Se- * minary of St. Sulpice at Paris than tL* interests of Religion, are persuaded that they ought to abandon and " cannot do better than by abandoning .o the Seniinary " of Montreal, the property and rights, the s .le of which " would be tedious, difficult and of doubtful effect, and " the confiscation of which would take place if such sale were not effected within the appointed term. By reason whereof the parties have agreed on the following " terms : «* The said Messrs. Couturier, De Beaupoil, Boura- " chot, Legrand and Moiron, in their said qualities, have " ceded, quitted and abandoned, and by these presents " do cede, quit and abandon, and if need be do here- '* by give, in the name of the Seminary of Paris, to the " Seminary of the Island of Montreal, the Island and " Seigniory appurtenances and dependencies, &c. o . And this present cession and abandonment " are made for the causes and the motives aforesaid, and (C (( -=J 8 V I i ■ i (( (( (( ti <( *• on condition that the Seminary of Montreal (and the " said Sieur Montgolfier binds the said Seminary to the •'performance of the said condition) shall execute the charges, conditions, and obligationj stipulated in the donation of the property hereby ceded and abandoned, (with all which said charges, conditions and obliga- " tions the said Sieur Montgolf^er has declared that he " and the Ecclesiastics who compose the Seminary of Montreal are perfectly acquainted) and shall so act, that by reason ol *he execution of the same, and of " this present cession and abandonment, the said Semi- " nary of Paris, and those who compose or may hercaf- " ter compose it, shall never be troubled, prosecuted and " called upon in any manner whatever on account of the " conditions of the said donation. " The said Sieur Montgolfier accepting the same and ** binding the Seminary of Montreal to the performance " thereof, as of charges, conditions and obligations ac- " cepted and contracted by the said Seminary itself; and " further binding it in like manner to continue the per- " forraance of the good work, in which it has heretofore " been engaged for the advancement of Religion." Such is the tenor of the said act, the effect of which is much less to confer new rights than to recognize and declare those which already existed- It is not an act of alienation, for that title can only be- long to acts by which a right of property is transferred. Now, the right to the property in question is not trans- I I 9 If ferred by the Community of the Priests of St. Sulpice, either to Laymen, or to any other Rehgious Corporation ; but it is formally recognized that the Priests of the Semi- nary in Canada, wlio at the time they took the oath of alle- giance,were indisputably Members of the Community,had become the sole proprietors. The property does not pass out of the hands of the Order, but continues to belong to those Members of the Order who continue capable of possessing it. The transaction therefore is not a sale. Still less is it a donation. No party can transfer to ano- ther a right which he does not himself possess. Now, two conditions must unite in the person of each proprie- tor of the property in question. Istly. He must be a Sulpicietn. 2ndly. He must be capable of holding property in Ca- nada, and of performing in that Country the conditions imposed by the donors. T hese qualities, so long united in the persons of all the Members of the Community, have since the Treaty of 1763, been united exclusively in the Sulpicians, w\io 'oecame British subjects, and who from that time forward could receive no new rights from the lib erality of their former Brethren. The names of cessiori and donation applied to the act in ques- tion, can therefore effect no change in its nature ; and it is in truth northing but a just and sound interpretation of the origin?!i titles, and the recognition of an incontestible right. *' In contractihus rei Veritas poMs qudm scriptura psrs- n I iM B 10 !:| I: 1/ " pici debet. Pins valere quod agitur, non quod scripium, " sed quod reverh gestum est inspicitur,^^ With regard to an act of this nature, all the formalities ordinarily observed with regard to the alienation of Ec- clesiastical property, would necessarily be superfluous. The Canadian Priests, who remained in possession, continued to enjoy the property as before, with this dif- ference, however, that all kind of connection between them and the Seminary at Paris, formerly the chief es- tablishmeni of the order, was discontinued. Things were in this state when the French Revolution broke out. All Religious orders were annihilated, and Ecclesiastical corporations dissolved ; but laws which were necessarily confined to the French Territory, did not reach the sub- jects of His Britannic Majesty, and the Seminary of Mont- real remained the only establishment in the world founded by Sulpicians. Fifty five years have elapsed since the signing of the Treaty of 1764. During the whole of this period the Canadian Priests of St. Sulpice have enjoyed the property, peaceably, publicl}', and as proprietors, in the midst of their fellow countrymen, and not only without being troubled by, but with the assent of the British Go- vernment. New Members have entered the community, which is perpetuated in the same manner as all other re- ligious corporations, but at the same time it admits into its bosom none but subjects of His Britannic Majesty ; and yet it is after this long and imposing possession that vague alarms have been created. Without formally at- oripttim, malities i of Jj]c- iuous. session, his dif- etween lief es- ^s were :e out. iastical issarily le sub- Mont- ►unded ce the of this ijoyed ors, in ithout h Go- unity, er re- nto its ; and 1 that ly at- 11 tacking the Seminary, doubts have been raised with re- gard to the reality and validity of its right of property, which the undersigned are tiow about to remove. En- titled .as it is to the protection of the Government under w^hich it is placed, the institution has no reason to fear being dispossessed by violence, but it ought to remove all uncertainty, and to refute objections, which are doubtless brought forward in good faith, and through ignorance of its rights and titles. The word Community, like the word Corporation, does not apply to any particular person, but makes a collec- tion or union of many individuals. " Collegium sive Cor- ^^ptis dicitur societas qticedam homimim ita contracta ut « ex pluribuspersonis, veluti una persona et unum corpus " fiat, quoa ciijusque universitas. The property of a body so composed, is not the property of the individual Members of the Orders, but that of the association ab- stractedly considered. "Res enim Jiiijus modi commu- ** nes sunt eis non ut singulis, sed ut universis. Collegium *^ personam quamuam esse imaginamus, ex pluribus per- sonis conditam,^^ {L, Mortuo, ff\ defid, juss). Thus the property of the Seminary of St. Sulpice, and conseq'aently that which lay in Canada, was the pro- perty of the Community: itdid not belong to the Establish- ment at Paris rather than to any other ; and whatever superiority of rank that Establishment might have, the pro- perty belonged to the Community, that is, to the whole Company, It is true that the *donors directed that the said II J, V I I 111 1 t 12 property shouM be united to the Seminary of St. Sulpicef at Paris, without a possibility of being separated from it for any cause whatever. But for what reason was the Seminary of Paris so mentioned in the the said Dona- tion ? It was becautse it was the seat of the Superior Administration, and the residence of the Chiefs and Legitimate Representa^tives of the whole Community : it was, as we said before, because the Establish- ment at Paris was, as we^ may say, the head of all the others, that it was specially designated by the donors. From the moment that the said Establishment lost the right of administering, or even of possessing the proper- ty in question, the reason of the ispecial designation made in the Donation, disappeared ; *^ suhlata causa, tolliiur effecius.^* The intention of the Donors was, to provide for ordi- nary cases ; they wished to prevent the French authori- ties from ever transfe^'ring the property iu question to another order, and despoiling the Sulpicians; but as- suredly they did not intend, that if by any event, or the action of any uncontrollable force, the Establishment of St.Sulpice at Paris should become incapable of possessing the said property, the Community should thereby lose it. In fact, it is an acknowledged principle, and one from which, there is nothing to show that the Donors inten- ded to derogate, that the existence of a single member of a community is sufficient to preserve to that Communi- ty its property and rights^ Suppose that at the time of i 18 5ulpicd from it i^as the Dona- Liperior ifs and (lunity : tablish- all the lors. lost the proper- n made toUitur )r ordi- authori- stion to but as- , or the ment of ssessing by lose md one rs inten- nember ►mmuni- time of the Treaty of Peace it happened (as it did in fact after- wards happen) that the Establishment at Paris had been dissolved : will any one maintain that the entire Order would thereby have been deprived of its possessions, and that the Donation to it would have become null ? As- suredly not ; so long as any Sulpicians shall remain, the Donation will continue to be valid. Besides the Donation must not be separated from the conditions on which it was made. If the Donors directed that the property should be held by the Establishment at Paris, they at the same time vigorously insisted that the income arising from it should be employed in Canada, for the benefit of the Missions ; and if they assigned a kind of superiority to the Establishment at Paris, it was be- cause at that time such superiority, or (if it is wished that it be so called) such right of property, was then perfectly reconcileable with the essential conditions of the contract. But when it became necessary to choose between the separation of that right from the Seminary at Paris, or the non-performance of the conditions, there was as- suredly no room for hesitation. As Sovereign Administrators of the property in ques- tion, the Members of the Seminary at Paris had a right to adopt that course which appeared to them most pro- per ; they had power, not to alienate the property from the Community, but to vest it exclusively in those Mem- bers of it who remained capable of possessing it. The Act of 1764 will henceforward be well under- II 14 I I stood ; it is not a Sale, or an alienation : for the property does not pass out of the hands of the Community. Still less is it a Donation, or a gift, being as it is the act of men who could not retain the property, except on condi- tions which they neither could nor would perform. It is the recognizance of tlie fact, that the whole right to the property had become vested in the hands of those of the former proprietors who alone remained capable of hold- ing it. It may be called an act of supreme administra- tion, by which the Sulpicians of Paris proved that they had understood the whole intention of the Donors, and ensured the performance of the condition of the original titles. Let it not then be again asked of the Sulpicians of Canada, whether the Act of 1764 was accomparled by all the formalities required in cases of alienation ; it was not, nor was it right that it should be ; and if it were still necessary to prove how superfluous, how superabundant these formalities would have been, it might be done by merely considering them one after the other. . They are six in number : Istly, The consent of the par- ties interested. 2iidly, The inquest de commcdo etincom- modo. 3r(!ly, The publication of the Act by the Courts of Law, and in the neighbouring places. 4thly, The Proces Verbal of the visit and valuation. 5thly, The ratification of the Bishop, or Ecclesiastical Superior. 6thly, The King's Letters Patent^ homologated by the Courts of Law. .V n,-,::t ..... , ■ ./, :■ -,-',. The consent of the parties interested was more than I 15 sufficiently expressed. Can the possibility of an inquest, or a Publication by a Court of Law be conceived ? How- was it possible to consult the Bishop on the question whether it was ri^ht to sell the property to English Sub- jects ; that is to say, to destroy the effect of the endow- ment, by an alienation of that nature? The same obser- vation applies to the authorization by the secular power. Besides by the Treaty of Peace, the tv/o Sovereigns au- thorized all the subjects of His Most Christian Majesty^ and consequently the Priests of St. Sulpice, to retain their Estates in Canada, which they could only do by taking the oath of allegiance to His Britannic Majesty. This oath, which it was impossible to expect all the Sul- picians to take, was taken by those in Canada, who be- came from that time, as hv as the property in question was concerned, the representatives of the whole Commu- nity. There is nothing in this which is not within the terms of the political authorization contained in the Treaty. And here occurs an objection, wlikh has been repeat- edly made among the vague and co nfused rumors afore- said, and of which it is right to shew the futility. It is, as a general proposition, u?-ged that persons or Communities who hold in mortmain , are not, capable of acquiring property ; and that they have need, for each particular acquisition to be relieved, from this incapability ; and it is maintained that the Canadian Priests of St, Sul- pice did not receive by Letters Patent from the King of ■ fc: k 16 France, the right to avail themselves of the disposition made in their favor by the Act of 1764. The principle laid down is certain, and there would be some force in the argument, if in the present case a new acquisition had been made by the Canadian Priests ; but it must be remembered that the original Donation made in 1677, was authorized by Letters Patent from the King of France. By these Letters Patent, the whole Com- munity was relieved from its incapability, and empowered to hold the property. Now the present question is, not to prove that the Community can acquire new property, but that the property already legally acquired, is not and cannot be legally possessed by any but the Sulpicians of Canada; that is to say, that the Community has not made a new acquisition, but continues to possess the property through those of its Members who continue ca- pable of possessing. We repeat it once more, this is the decisive point. In the Act of 1764, there is no transfer of th3 right of property ; the Act is explanatory and de- claratory of existing facts, and could not be otherwise consistently with the Acts of Donation and Endowment. It ascertains who are the persons in whom alone by the force of circumstances and the terms of the Title, the right of properly was thenceforward to be exclusively vested. The Sulpicians of Canada, as Members of the Com- munity of St. Sulpice, were rendered capable of holding i 17 . the property by the Letters-Patent of 1G77, the effect of which still continues in their persons. It is proved that the Act, by its nature, required the ob- servance of no formality. But considering it for a mo- ment, as an act of alienation on the part of the Sulpicians of Paris, and of acquisition on that of the Subicians of Canada, we should still say that in the case before us, the absence of formalities or of Letters-Patent would not be a cause of nullity. ' We must be on our guard, against supposing that the mere omission of formalities would be sufficient to annul a sale, an exchange, or a donation. It is the constant and immutable doctrine of the Galilean Church, as it was also the jurisprudence constantly followed by the French Parliament, that an alienation of Church proper- ty, even unaccompanied by any formalities, could only be rescinded by reason of the insufficiency of the causes assigned for it. Were the formalities observed? The validity of the sale would no longer be called in question. Had they been neglected ? All that could result from that circum- stance, was that the parties interested in the sale might be obliged to prove, (if the sale were contested) that it had been dictated by urgent necessity, or by need of se- curing some evident advantage ; that it was a wise act, and one consistent with sound prudence, and which it would be right to perform, if it still remained to be done. When these points could be proved, it became evident c 18 f : 1 1 1 V f, }. ' 1 Wi ^: I that those whose act it was, had not been induced to it by motives of personal interest ; that there was a total absence of fraud and false pretences ; that the interest of the Church had been the sole object ; the want of the formalities was sufficiently counterbalanced ; and no case can be found where an alienation, founded on just and honourable grounds, has been annulled on the pretext that the formalities had been neglected ; this is the opi- nion of all the authors who have written on the law of Benefices. "The property of the Church," says Des- peisses, "may be alienated without any formalities, when " the alienation is greatly beneficial to the Church." {Desp. Vol. 1, pag. 8 Lyon, 1750). Pierre Stockmans, Member of the Council of Bra- bant, thus expresses himself on the usages of France. (1) In gallioL non observantur ad amussim omnia quf the iction nging heob- pur- and it th the neral, ir cir- it had leiit of eshad )n. In en the d that >posed intage 3 have under ration, which istrate vov of Let us observe in addition, that the political conven- tions between the two Sovereigns were eminently calcu- lated to supply any defect of formality. The Community of the Priests of St. Sulpice, whose possessions in Cana- da weie known, was necessarily authorized, as all other French Subjects were, to sell their property or to retain it. Now the only method by which it could be retained, was to leave certain Sulpicians v/ho had become British Subjects, to represent the Community in Canada. This method and the adoption of it were in hke manner assen- ted to by His Britannic Majesty, who did not except the Sulpicians from the right of choosing freely which of the two courses they would adopt. If then it was necessary to look upon the Act under our consideration as an aliena- tion, it must be admitted that it was sanctioned by the authorization formally given by the two Sovereigns. It is impossible to close this paper without remarking that the British Government has no real interest in con- testing the Title of the Sulpicians of Canada. If the Sulpicians of Paris claimed or could claim the property, or if it was revendicated by the French Government, it is easy to conceive that the British Government would wish to meet these foreign claims by opposing to them the Law of Confiscation ; but the Sulpicians of Canada are British Subjects ; they have not been disturbed in their possession, nor can they be so. And it is by ascrib- ing to the Seminary at Paris rights which it does not pos- 22 i\i' sess ; by supposing that a peaceable possession of fiftj'^-five years may be disturbed ; and by raising in the name of the French Authorities the most trifling and ill-founded difficulties, that an attempt is made to contest an act of which the motives were so just and noble, and eventually to inflict on subjects of His Britannic Majesty the Penal- ty of Confiscation. The Counsel are of opinion that, in whatever point of view the Act of 1764 is considered, whether it be looked upon as an interpretation, or as an execution of the original Titles, or be supposed to bear the character of an aliena- tion, the right of property vested in the Seminary of Montreal is equally safe against any attempt to contest it. Given at Paris, 18th August, 1819. (Signed,) HENNEQUIN, ■ ARCHAMBAULT, E DELACROIX FRAINVILLE, ■ GICQUEL, I BILLECOCQ, ■ BERRYER, pere, ■ BONNET, I TRIPIER, 1 DE LA CALPRADE, i DUPIN, h'i'i BERRYER, fils, GAILLARD. i I ^ i name of founded in act of entually e Penal- point of e looked ; original n aliena- inary of ontest it. ILLE,