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 i ,! .i. 
 
O P I N I () N 
 
 OF 
 
 MR. D U P I N , 
 
 ADVOCATE, 
 OF THE ROYAL COURT OF PARIS, 
 
 ON THE 
 
 RIGHTS OF THE SEMINARY OF MONTREAL, 
 
 IN CANADA. 
 PARIS, 182G. 
 
 The Undersigned Counsel, 
 
 After reading the several Memoirs published by either 
 party to the suit now pending between the Seminary ol 
 Montreal and Mr. Fleming ; and also a Memoir of the 
 English Crown Officers, the analysis of the different 
 pleadings, and the extract from the opinion of one of the 
 Judges before whom the said suit was brought, together 
 with divers other documents relative to the questions 
 discussed therein, 
 
 Is of opinion as follows : — 
 
 When the undersigned was consulted for the first time 
 on this subject in March 1819, he had before lum none 
 of the Documents just emmieratcd ;-~!ie In.i! only to give 
 
his opinion on the merits of the Instrument styled a 
 " ConccssioHy^^ executed on the 29th of April 1764, be- 
 tween the Seminary of Montreal and that of St. Sulpice at 
 Paris ; an Instrument which, considered as an isolated act, 
 it appeared to him might be considered as a kind of par- 
 tition, by which the right to certain property was not 
 conferred, but declared to exist. 
 
 The same thing may be said of the opinion dated 18th 
 August 1819, drawn up by Mr. Hennequin, and on which 
 the undersigned was consulted as were also several other 
 Members of the Bar at Paris : in this opinion no other 
 Documents are considered than the Treaty of Peace of 
 1763, and the above cited Instrument executed in 1764, to 
 the appreciation of the form and effects of which the said 
 opinion is confined. 
 
 The Counsel consulted then were in fact ignorant of 
 ijyA real questions in the solution of which the Seminary 
 of Montreal is interested ; and therefore they have not 
 discussed them. 
 
 At the present time when the information is more com- 
 plete,it becomes possible to understand precisely the true 
 point of view in which the position of the Seminary of 
 Montreal is to be considered. 
 
 As the Seignior and Proprietor of the Island of Mon- 
 treal, and as exercising throughout the said Seigniory the 
 right of Ba?ialitCi which is one of the accesssory rights of 
 the said Spigniory, the Seminary of Montreal brought 
 ian action against Mr. Fleming for the purpose of sup- 
 
 i 
 
I 
 
 ityled a 
 764, be- 
 Ipice at 
 ited act, 
 of par- 
 vas not 
 
 ed 18th 
 1 which 
 i\ other 
 other 
 eace of 
 764, to 
 ;he said 
 
 )rant of 
 iminary 
 ive not 
 
 re com- 
 he true 
 nary of 
 
 f Mon- 
 ory the 
 ights of 
 )rought 
 of sup- 
 
 pressing a Mill which he caused to be constructed in 
 violation of the said right of BanalUe. 
 
 The Defendant instead of answering to the merits of 
 the question (which it would have been difficult for him 
 to do, as the right of the Seignior is incontestible) con- 
 ceived the project of contesting the existence of the 
 Seminary as a legally constituted body, its right to pro- 
 perty of which it is in possession, and consequently its 
 power to act by Attorney in defence of the said right of 
 propt^rty and possession. 
 
 Thus we have the following questions to examine : 
 
 Istly. Whether the Se*ninary of Montreal has a legal 
 existence as a Seminary and Community ? 
 
 2ndly. Whether it is in fact the Proprietor of the 
 Establishment at Montreal, and of the Land and Seigniory 
 thereon depending ? 
 
 3rdly W^hether its possession (wi^ich last at least is 
 incontestible,) is not sufficient to maintain an action of 
 complaint? (complainte). 
 
 Such are the questions which we are now about to 
 treat separately. 
 
 FIRST QUESTION. 
 
 lias the JSeminary of Montreal a legal existence as a 
 Seminary and Community ? 
 
 In every civilized State, no Corporation or Communi- 
 ty can exist except such as have been established or con- 
 
firmed hy the iuithority of the Goveniinent : — »Nisi ex 
 senatusconsiiUi anclorilate vol Cwsaris, collegium vel 
 quodcianquc talc corpus colcrii ; coifra senatus consultum, 
 et mandnta, ct conatitutiones collegium cclebraL Loi 3, §, 
 1 ff dc Collegiis et corporibus. 
 
 We do not state tliis proposition as an ol)jcction whicli 
 it is the business of the Seminary of Montreal to refute, 
 but as a salutary rule which forms tiic very basis of its 
 existence. 
 
 In conformity to this principle, it has always been held 
 as a maxim in France, that in order to be legal. Corpo- 
 rations and Connnunities must either be constituted or 
 approved by Letters Patent from the King, enregistered 
 in the Farlement or in the Conseils Supericurs, (See 
 in particular the Edict of the month of August 1749, Art. 
 1, which in this respect only renews the provisions of the 
 ancient Ordinances). 
 
 We say constituted or approved : for the authorization 
 given after the performance of the act, has the same effect 
 as that which should have preceded it: — Ratihabiiio 
 mandalo comparatur. 
 
 And thus it has repeatedly happened that Corporations, 
 the first establishment of which was by no means legal 
 for w\int of Letters Patent, have been subsequently con- 
 firmed by the vSovereign, and have forthwith enjoyed as 
 incontrovertible, an existence dating from their first es- 
 tablishment, as if they had been originally erected by the 
 authority of the Prince. 
 
-J\isi ex 
 ^ium vel 
 maultum, 
 Lot 3, §, 
 
 on which 
 refute, 
 sis of its 
 
 ecn held 
 , Corpo- 
 ituted or 
 3gistered 
 s. (See 
 749, Art. 
 ns of the 
 
 orization 
 me effect 
 itihabiiio 
 
 orations, 
 ans lecjal 
 ntly con- 
 ijoyed as 
 first es- 
 3d l)y the 
 
 / 
 
 This point was especially decided in favor of the Se- 
 minaries by the Declaration of the 2Gth May 1774, (ad- 
 dressed to several Parlemenis\\x\{\GY date ITOS") in whicii, 
 intcrpretini; as far as need was, tlie \M\\ Article of the 
 Edict of 1749, by which the Kincj reserved to himself the 
 right decidincf the fate of establishments unauthorized, 
 but virtually and ])eaceably existing before the promul- 
 gation of the said Edict, His Majesty declares that, •' it 
 *' is not his intention to include within the meaning of the 
 " said 13th Article, the Seminaries established before 
 " the Edict, ii)hich shall remain authorized and confirmed 
 " by virtue of these presents. 
 
 The necessary result of this act of Legislation, (which 
 as far as the Seminaries are concerned is special) is, that 
 the Seminary of Tilontreal, the existence of which is ante- 
 rior by nearly a century, to the Edict of 1749 and the 
 Declaration which followed it, would have a legal exis- 
 tence by virtue of the confirmation contained in the said 
 Declaration, e\^en if it had no other Title in its flwor. 
 
 But it has a Title of so positive a nature that it is im- 
 possible not to pay especial regard to it. 
 
 In the Collection of Edicts, Royal Ordinances, Decla- 
 rations and Decisions of the King's Council of State, 
 relating to Canada, printed at Quebec in 1803, by order 
 of the Lieutenant Governor of the Province of Lower 
 Canada, in consequence of two several Addresses of the 
 House of Assembly, dated the 5th and 7th of March 1801, 
 
a collection which is consc(iucnlly ollicial, (*) there will 
 be found, in the lirst vohnnc page 80, under the Title — 
 "Establislinient of a Seminary in the Fsland of Montreal, 
 &c." Letters Patent of Louis the Fourteentii, dated at St. 
 Onier, hi I\L^y 1()77, countersigned " Colbert,''' and enre- 
 gistered in the Conseil Snpcrieunxt Quebec, Register A. 
 foho 07; in which wc find these words, "Behig wilHngto 
 " favour the Petitioners, toe have permitted (mil permit 
 '^them, by tliesc presents signed with our hand, to erect 
 " a Community and Semi?iary of Ecclesiastics in the said 
 *♦ Island of J\lo?itreal" 
 
 After these formal expressions, can there remain the 
 slightest doubt of the force of the authorization contained 
 m the Letters Patent ? — We do not for the moment msist 
 on the clause of mortmain inserted therein : the conside- 
 ration of that clause belongs to the second question ; — but 
 for the present, and in answer to the first question, whe- 
 ther the Seminary of Montreal has a legal existence ; we 
 reply most positively "yc^, it has a legal existence" 
 
 Special Letters Patent would not even have been ne- 
 
 « This may serve for an answer to the demand of I\Ir. Fleming that the 
 Seminary should produce the original Title. — A party to a suit is only 
 bound to produce such Documents as he ought to have in his possession ; 
 but Laws are not addressed to Individuals ; — they are kept of record in the 
 public archives where all who v^^ish to cite them may see them. — In former 
 times they were addressed to the Courts of Law in order that they might 
 be enregisterod therein. — Their existence is therefore legally proved when 
 they are found on the Registers, or, if there be no Registers (for every thing 
 perishes in time) when they are found in collections printed by order of the 
 supreme authority. 
 
IMC will 
 Title— 
 ontrcal, 
 mI at St. 
 1(1 ciire- 
 istcr A. 
 ilIin<^to 
 / permit 
 to erect 
 the said 
 
 tnain the 
 oiitained 
 mt insist 
 conside- 
 3n ; — but 
 ion, whe- 
 nce ; we 
 
 been ne- 
 
 ling that the 
 uit is only 
 j)OSsession ; 
 ecord in the 
 — In former 
 they might 
 roved when 
 every thing 
 order of the 
 
 cessary, as we have said in rolcrrliru; to the provision oi 
 the Declaration of 1774. 
 
 liut even if they had been necessary, they were 
 granted ; — the terms are express and uneciuivocal ; " We 
 "have perniilted and do ])erinit tJieni by these presents 
 " signed with our hand, to erect a Coiiununity and Seriiin- 
 "ary of Ecclesiastics in the said Island of Montreal 
 «' therein, &c." 
 
 The Sulpicians of Paris could not of their own private 
 authority constitute a Seminary and Connnunity at Mon- 
 treal ; and if they had attempted to do so, the act would 
 have been null. — In order that the erection should be 
 legal, Letters Patent enregistered in the Council of the 
 Province were necessary. But from tlic moment that 
 such Letters Patent were granted and enregistered, the 
 Seminary of Montreal acquired an existence peculiar to 
 itseljf — a legal existence, as indisputable and as indepen- 
 dant as that of the Seminary of St. Sulpice at Paris ; and 
 in like manner the Sulpicians of Paris could not alone 
 have erected the Seminary of Montreal without Letters 
 Patent, so hkewise would it have been impossible for it 
 to do any thing which could affect the existence of the 
 latter when once duly authorized. 
 
 It is then a point which cannot hereafter be contestedj 
 that the Seminary and Community of Montreal has, from 
 its origin, had a legal existence as a Seminary and Com- 
 munity. 
 
 This point is important, and ought in the first place to 
 
be considered distinct iiom any other ; it is independent 
 of the possession of any particular property, or the exer- 
 cise of any particular real or Seii^niorial rifrjits : the Com- 
 munity may be more or less rich, it may or may not pos- 
 sess any particular property (this point will be consider- 
 ed presently) ; but considered in itself, it exists legally 
 by virtue of Letters Patent duly enreti;istercd, and as a 
 Commwiiti/, Avith all the lights and privileges attached to 
 a Corporation legally constituted. 
 
 It has, therefore, the right of being represented in 
 Court or out of Court, in all its proceedings, and in the 
 different acts in which it is interested, by a legally ap- 
 pointed Attorney ; for this is the privilege of all Corpora- 
 tions : Quibus autem pcrmissiim est corpus habere collcgii 
 socictaiist sive cujusqiie alterius eorum nomine^ proprlum 
 est) ad cxemplum reipublicoi, habere res commimcs, arcam 
 commimemf ei actorcm communem sive sijndlcum, per 
 quern, tanquam in republicd, quodcommtmiteragi,Jierique 
 oportf.at, agatur, jiat. Loi 1, 5, 1, {f\ Quod cuf usque 
 universiiatis nomine. 
 
 The Conquest introduced no change in this order of 
 things : 
 
 Istly. In order to prove that it did, an express article 
 to that effect must be produced. 
 
 Iii fact, says Vattel {Droit des Gens, Vol. 2, page 144, 
 in the paragraph intituled, " des choses dont le Traite ne 
 " dit rien, the state of things which exists at the time the 
 " Treaty is made, must be considered as the legitimate 
 
I 
 
 
 pendent 
 
 1 
 
 le exer- 
 
 ■K 
 
 lie Com- 
 
 % 
 
 not pos- 
 
 1 
 
 onsider- 
 5 legally 
 
 
 uul us a 
 
 
 uched to 
 
 
 ented in 
 
 
 id in tiic 
 
 
 iraWy up- 
 
 
 Gorpora- 
 
 
 'e collcgii 
 
 
 oropr'mm 
 
 
 >s, arcam 
 
 
 mm, per 
 
 
 ffierique 
 
 
 cujusqiie 
 
 
 order of 
 
 ss article 
 
 )age 144, 
 Traile ne 
 time the 
 cgitinaate 
 
 9 
 
 ** one ; and iC it be wished to make any change, express 
 "mention must be made of such change in the Treaty 
 *' As a consequence of this, all those things of which the 
 *' Treaty makes no mention, ought to remain in the state 
 " in ivhich they ivere at the Hme it wa.s concluded.^'' 
 
 2ndly. Now, far from olfering an argument simply 
 negative, founded on the fact that the Treaty of 17G3 is 
 silent on this head, that Treaty stipulates generally for 
 the preservation of the rights of all French Subjects, and 
 the free exercise of the Roman Catholic Religion ; and 
 in the particular capitulation of Montreal, it is stipulated 
 expressly, that the existing Communities shall be main- 
 tained. That article is conceived in the following terms : 
 *' All the Communities 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, 
 *' honors and exemptions." 
 
 When it has appeared that any of the said Communi- 
 ties could not be preserved, either because they did not 
 comply with tlie conditions of the Treaty, or for any 
 other reason, the British Government has made known 
 its intention in this respect, by preventing them from ad- 
 mitting new Members, and allowing them gradually to 
 become extinct. It allowed the Seminary of Montreal, 
 on the contrary, to admit new Members ; and this Com- 
 munity has in fact preserved its existence since the Trea- 
 
 B 
 
 cc 
 
 <c 
 
 {( 
 
10 
 
 ty of 1763, in the same manner as before it. The most 
 recent acts of the British Ministry, tend to confirm this 
 assertion. 
 
 It is then true, both in fact and in Law, that the Con- 
 quest made no change in the pre-existing order of things, 
 and that since it was concluded, as before, the Seminary 
 of Montreal has never ceased to have a legal existence. 
 
 The sole effect of the Conquest was that the Priests of 
 the Seminary of Montreal instead of remaining French 
 Subjects, became Enghsh Subjects; their Community 
 instead of remaining under the protection of the King of 
 France, passed necessarily under that of the King of 
 England ; but this change affected the Sovereignty only ; 
 every thing else continued unchanged, for the benefit of 
 the conquered Country. 
 
 There is of course no intention to contest with the Par- 
 liament of England, and the Government of that Coun- 
 try, the right which became vested in them by the effect 
 of the Conquest, and which certainly belongs to them 
 since the Treaty of Peace, to make new Laws, and to 
 modify the temporal Government of Communities, if the 
 public interest should require it ; all that is asserted is, 
 that the Conquest did not as a matter of course annul any 
 of the acts of Sovereignty exercised by the French Go- 
 vernment while in possession of the Country. We 
 maintain on the contrary, that the Laws given to the 
 Country, the Institutions founded, and the rights acquir- 
 ed, continued to subsist in so far as they were not de- 
 
 1 
 
 I" 
 
 
 i 
 
u 
 
 he most 
 irm this 
 
 he Coii- 
 f thuigs, 
 eminary 
 stence. 
 riests of 
 ; French 
 mmunity 
 ; King of 
 King of 
 nty only ; 
 benefit of 
 
 I 
 
 rogated from either at the time of the Conquest or subse- 
 quently. 
 
 And if the British Government should wish to effect 
 any change in any of these matters for the future, as this 
 would only be done with the view of promoting the su- 
 preme welfare of the State, neither would it be done un- 
 til after the state of things had been examined, the parties 
 interested heard, their right weighed, the treaties re- 
 viewed, and all other considerations discussed ; with that 
 scrupulous attention to the preservation of the interests of 
 its Subjects, which that Government always displays. 
 Until a change is thus effected, every thing which legally 
 existed before the Conquest will continue to subsist as it 
 has done since that event. 
 
 1 the Par- 
 tiat Coun- 
 the effect 
 5 to them 
 k^s, and to 
 ies, if the 
 serted is, 
 annul any 
 rench Go- 
 try. We 
 en to the 
 its acquir- 
 e not de- 
 
 SECOND QUESTION. 
 
 Is the Seminary really the Proprietor of the Establish- 
 ment at Montreal, and of the Lands and Seigniories 
 thereon depending ? 
 
 In like manner as the Seminary of Montreal could not 
 legally have existed as a Corporation without Letters 
 Patent to authonze and render valid its establishment, so 
 likewise it could not validly have acquired and possessed 
 temporal property without being authorized to that effect 
 by Letters Patent duly enregistered. 
 
 But this double authorization was obtained; and in like 
 manner as the Seminary became legally a Corporation, 
 

 12 
 
 so likewise it became at the same time the legal holder 
 of the property assigned to it : let us go back to an earlier 
 period. 
 
 From the year 1660 or thereabouts, a free society had 
 existed, composed of many individuals, Priests as well 
 as Laymen, for the conversion of the Indians in JVew 
 France, 
 
 The Gentlemen of the Seminary of St. Sulpice, listen- 
 ing only to their zeal, had used all their efforts to second 
 this pious undertaking. 
 
 :, It was then that the primitive associates found that 
 they should do much better by leaving the task of con- 
 tinuing the work thus commenced to the Sulpicians : and, 
 to this end, they, acting by their Attornies, subscribed a 
 Notarial Act, executed at Paris, on the 9th of March, 
 1663, which states: "That the said associates, in their 
 " quality aforesaid, for the promotion and in consideration 
 *'of the conversion of the Indians in New France, have 
 " given and do give by these presents, by pure, simple and 
 " irrevocable Donation, to take effect during the lives of 
 *' the parties, to the Priests of the Seminary of St. Sul- 
 "pice, hereunto present and appearing by Messire 
 *' Alexandre le Ragois de Bretonvilliere, Priest, Superior 
 "of the said Seminary, all the right of property which 
 " they (the said associates) have or may have to the Is- 
 *' land of Montreal, situate in New France, at the Sault 
 
 ** St. Louis, on the River St. Lawrence, together 
 
 "with the Seignioiial House called La ForeU{m the said 
 
 
 ■I' 
 
 <( 
 
 <( 
 
 (; 
 
 " id 
 <( 
 
 (( 
 
 (( 
 
 (( 
 
 (( 
 c< 
 (( 
 
13 
 
 ' holder 
 L earlier 
 
 ety had 
 as well 
 in Mew 
 
 ?, listen- 
 second 
 
 md that 
 of con- 
 is : and, 
 cribed a 
 March, 
 , in their 
 deration 
 ce, have 
 nple and 
 3 lives of 
 St. Sul- 
 Messire 
 Superior 
 ty which 
 
 the Is- 
 ,he Sault 
 together 
 
 1 the said 
 
 
 *' Island of Montreal ; the Farm and cleared Lands and 
 
 * other dependencies of the same ; and also the Seigniory, 
 " and all Seigniorial rights, jurisdiction and dues, all 
 "debts due to them from the country or from individuals 
 *' in Quebec, Montreal or in France, and generally all 
 " powers, rights and rights of action which appertain and 
 *' belong to them on account of the said Island of Mon- 
 " treal, either in France or in New France, for any cause 
 *' or reason whatsoever ; to have, hold and enjoy the same, 
 ** the Members of the said Seminary accepting hereof as 
 *' incommutable proprietors thereof: the saidDonation and 
 " abandonment being made on the following conditions : 
 " Istly : That the Donation and Property of the said Is- 
 " land shall for ever be inseparably united to the said 
 *' Seminary, without being liable to be separated there- 
 "from for any cause or reason whatsoever : (and the last 
 
 • clause is in these terms :) " And the said parties have 
 ** agreed, that if after the charges herein above mentioned 
 shall have been paid, together with the ordinary costs 
 " and ex])ensesnecessary for the preservaliofiqf the Island, 
 " and the continuance of the ivork, there shall remain any 
 " portion of the revenue arising from the property hereby 
 ceded, such remainder shall be employed for the ad- 
 vancement of the tvorkf in such manner as the zeal and 
 ** prudence of the Gentlemen of the said Seminary shall 
 " suggest, without including in this condition the Lands 
 ** which are not now cleared, or which the Gentlemen of 
 
 * * the said Seminary may hereafter cause to be cleared, 
 
 c 
 
 (( 
 
 (t 
 
 << 
 
14 
 
 ♦- 
 
 «nor the improvements, augmentations and additions 
 " whi^h they may mai^e to or about the same, of all which it 
 *' shall be lawful for them to dispose as they may think 
 " proper." 
 
 This Donation was enre^istered at the Greffe of the 
 Chdlelet of Paris, on the oth June 1663; but this forma- 
 lity was not all that was required. It was a formality 
 appointed with reference to transactions between private 
 individuals ; and in this instance the quality of the Donees, 
 and the conditions of the Donation made the intervention 
 of the Sovereign necessary. 
 
 The Donees could not legally acquire property unless 
 they were authorized so to do by Letters Patent. 
 
 But in what manner were these Letters Patent them- 
 selves to be demanded and obtained? 
 
 The Donation merely and simply transferred the right 
 to the property ; it was .nade for an object clearly point- 
 ed out, for the promotion and in consideration of the 
 conversion of the Indians in JVeio France. The whole 
 was consecrated to the performance of this work ; and 
 even in case of excess or increase of Revenue, such 
 excess or increase was to be employed in like manner. 
 The Seminary of Paris was only at liberty to dispose of 
 such clearances, additions and improvements as it should 
 itself make, which were thereafter to constitute a sort of 
 pecuUiim at its own disposal ; but, we repeat it, the 
 whole principal of the Donation ivas exclusively destined 
 to the accomplishment of the work pointed out. 
 
 / 
 
 (( ri 
 
 H 
 
 (( 
 
 it 
 
 it 
 
 (( 
 
 "a 
 
 t( 
 
I 
 
 15 
 
 ddifions 
 I which it 
 lay think 
 
 fe of the 
 s forma- 
 
 formality 
 
 n private 
 Donees, 
 
 ervention 
 
 ty unless 
 
 It. 
 
 snt thein- 
 
 [ the right 
 irly point- 
 on of the 
 he whole 
 ork; and 
 lue, such 
 e manner. 
 lispose of 
 1 it should 
 a sort of 
 at it, the 
 ( destined 
 
 / 
 
 Now it is evident, that as this work was to consist in 
 the conversion of the Indians of Canada, it couhl not be 
 executed by the Gentlemen of the Seminary of Paris : 
 it could only be j>erformed on the spot, in Canada, by 
 Members of the Society taken from that body, but sent 
 to and resident in Montreal. 
 
 Hence th^ necessity of establishing a stationary Se- 
 minary and Community at Montreal, there to possess 
 the property and to perform the work sti[)ulated. AVilh 
 this design the Donees drew up the following Memorial 
 to the King, which is prefixed to the Letters Patent of 
 May 1677. "The Ecclesiastics of the Seminary of St. 
 *' Sulpice, of the Suburb Saint Germain-les-Paris, have 
 
 " most humbly represented to Us, that made 
 
 "a Donation to them, by a Deed bearing date the 9th 
 March 1663, of the Island and Seigniory of Montreal, 
 in New France, with the appurtenances and dependen- 
 cies thereof, to which said place they have sent Priests 
 "who have laboured in converting the Indians with so 
 "much success, that they have been hivited to send 
 others to make up the number of fourteen, \\\\o might 
 form a Community there, if it should please us to grant 
 " them the requisite Letters Patent." 
 
 And here, before we proceed to consider the Royal 
 answer, let us obtain a clear idea of the Letters Patent 
 obtained in like cases. They are not a matter of pure 
 form, they are requisite in that behalj. The Seminary 
 
 ti 
 
 a 
 
 {( 
 
 (( 
 
 (( 
 
16 
 
 does not misunderstand this truth ; far from this, it is the 
 first to announce It. 
 
 The Letters Patent are the complement of the Dona- 
 tion ; without them it would have remained without 
 efl'ect ; the Donees wonld have continued unable to 
 acquire the property, and the stipulatcid conditions could 
 not have been executed. 
 
 Let us next observe that the King does not in this and 
 similar cases give a merely passive consent ; He speakii 
 with authority ; He acts as a Sovereign, as the Patron of 
 the Church, as the tutor politically speaking of all the 
 Corporations and Communities under His dominion. He 
 does not in this case perform a mere act of executive 
 A. power. His act is one legislation, relating to a matter 
 of public interest, the legal transmission of property. 
 Letters Patent of this kind have always been subjected to 
 verification and enregistered in the Supreme Courts, 
 and were null and void if not enregietered. 
 
 The Patents were not a vain formality : they were 
 never granted but upon good cause shewn, and sometimes 
 the Donation was modified, either by the Letters Patent 
 themselves or by the Edict of enregistration, and these 
 modifications affected either the amount of the Donation 
 when it was considered excessive, or the nature of the 
 conditions when they appeared to be illegal, undesirable, 
 or susceptible of amendment. 
 
 Let it not be objected that in so doing the King and 
 the Parliament altered the Contract ! For them there was 
 
 % 
 1 
 
17 
 
 it is tiie 
 
 e Dona- 
 wit ho ut 
 lable to 
 ns could 
 
 this and 
 e speaks 
 *atron of 
 f all the 
 lion. He 
 xecutive 
 a matter 
 >roperty. 
 iected to 
 
 Courts, 
 
 3y were 
 metimes 
 s Patent 
 nd these 
 Donation 
 e of the 
 esirable, 
 
 Gng and 
 here was 
 
 ao Contract, their authority was not fettered by an In- 
 strument, which, on the contrary, could have no force, 
 except what it derived from their approval which, until 
 so approved, was no more than a mere promise, sol'ms 
 offerentis promissio^ an act which remained a nullity if 
 they did not think proper to agree to it, and which might 
 be moditied, if they thought proper not to adopt it with- 
 out some modification. 
 
 In this last case, if the mo dif« cations introduced were 
 disagreeable to the Donor, it was for him to declare that 
 his will not having been perfectly complied with, it was 
 not his intention to hold the Donation good, and that he 
 annulled the Gift. But if he omitted to make such a 
 declaration, or merely permitted the Donation to be exe- 
 cuted iiccording to the conditions prescribed by the 
 Letters Patent, he was considered to have acceded to 
 them ; and the Letters Patent being from that time forth 
 confounded with the Donation, formed with it one act, 
 and inseparable and indivisiule from it, as if both had 
 been executed simultaneously and for the same object. 
 
 This being stated, let us now see what answer the 
 King made to the Memorial of the Gentlemen of the Se- 
 minary of St. Sulpice : " For these reasons, being well 
 " informed that We could do nothing more advantageous 
 " to the propagation of the true faith, or more condu- 
 cive to the establishment of the Christian Religion in 
 Our Province of Meio France^ and being willing to 
 *• listen favorably to the said Memorialists, We have per- 
 
 (( 
 
 (( 
 
 -'H 
 
18 
 
 / 
 
 i( 
 
 (( 
 (( 
 
 i( 
 (( 
 (( 
 i( 
 (( 
 <( 
 (( 
 (( 
 (t 
 (( 
 
 (C 
 {C 
 
 i( 
 <( 
 {( 
 <( 
 <• 
 (( 
 « 
 t( 
 i( 
 <( 
 
 mitted and do permit them by these presv^nts, signed 
 with Our hand, to erect a Community and S'^minary of 
 Ecclesiastics in the Island of Montreal^ there to labour 
 according to the instructions they receive' and in con- 
 formity to the Holy Councils of the Ci. .ch, and the 
 Ordinances of Our Kingdom, in the conversion of the 
 Indians, and the instruction of Our Subjects, and to 
 pray to God for Us, and Our RoyaiSuccessors, and 
 the Peace of the Church and of Our Kingdom : and 
 with the intention of further facilitating the said Esta- 
 blishment, We have accepted, consented to, and 
 approved, and do accept, consent to and approve the 
 said Donation, set forth in the Contract, bearing date 
 the said ninth day of March, one thousand six hundred 
 and sixty-three, hereunto annexed under the counter 
 Seal of Our Chancery ; and of Our further Grace, We 
 have directed and do hereby direct that the mid Island 
 and Seigniory oj Montreal be held in mortmain j or ever, 
 as being dedicated and consecrated to God ; willing 
 that it be united for ever to the said,Community, with- 
 out its being possible that it be bound, hypothecated 
 or alienated by any Member thereof in particular, for 
 any cause or reason whatever, to be held by the Mem- 
 bers of the said Seminary and Community, freely and 
 absolutely, without any obligation on their part to dis- 
 possess themselves thereof, to appoint a man whose 
 death shall be considered as that of the Seignior, or 
 to pay to Us or to Our Royal Successors, any fine or 
 
 c. 
 
1 
 
 signed 
 \nary of 
 ) labour 
 
 in con- 
 md the 
 1 of the 
 , and to 
 irs, and 
 m: and 
 id Esta- 
 to, and 
 ove the 
 ng date 
 lundred 
 counter 
 ice, TVe 
 i Island 
 or ever, 
 
 willing 
 ;y, with- 
 hecated 
 ular, for 
 e JVlem- 
 ;ely and 
 t to dis- 
 1 whose 
 ;mor, or 
 
 fine or 
 
 i 
 
 ^ 
 
 19 
 
 " indemnity, mutation fines or dues, or other dues what- 
 " soever from all which we have relieved and discharged 
 ** them, and of which (to what sum soever the same may 
 " amount) We hereby make a Donation to them, on con- 
 *' dition of their paying all such indemnities and other 
 *' dues as may accrue to any Seignior other than Qjir- 
 " selves. And We further enjoin Our trusty and well 
 " beloved subjects holding Our Supreme Council at 
 " Quebec, and all others Our Officers whomsoever, to 
 " cause these presents to be enregislered, and the said 
 ** Ecclesiastics of the said Seminary and their Successors, 
 " to enjoy the benefit thereof fully, peaceably and for 
 ** ever, and neither to disturb nor allow others to disturb 
 " them in the enjoyment thereof." 
 
 Immediately after these Acts, we find this entry in the 
 collection before cited, page 86 : " Enregistered, to the 
 ** end that it may avail according to its tenor, to the Se- 
 " minaries of St. Sulpice at Paris and Montreal, at ord- 
 I " ing to the order made this day ; Quebec, this 20th 
 September 1777." Signed, "Becquet." And in the 
 margin of the Letters Patent themselves, page 80, of the 
 printed collection, there is the following note : " Enre- 
 " gistered in the Conseil Superieur, Register A, folio 67, 
 *• verso," to which Register any on« Is at liberty to refer, 
 to verify the said Documents, and to demand a copy 
 thereof. 
 
 The Act having thus become perfect in itself, what 
 have been its consequences ? Two things equally cer- 
 
f 
 
 I 
 
 'i 
 
 20 
 
 ain:— Ibtly. 'J'iie legally authorized establishment of the 
 Seminary of Montreal, with the legal quality of Cotn- 
 munity, as we have already said in the first paragraph : — 
 2ndly. The permission that the Land and Seigniory of 
 Montreal should be held in mortmain by and for the 
 benefit of the said Community. 
 
 Let it not be objected here, that in this respect the 
 wishes of the Donors, who had on the contrary given the 
 property to the Seminary of Paris^ were not complied 
 with. The Donation was made to the Seminary of Paris, 
 but the property given was to be exclusively employed 
 in promoting the certain objects in Canada. — The esta- 
 blishment of a Community ad hoc in Canada, to be resi- 
 dent there, to possess the property which was situate 
 there, and to perform there the work which could be 
 performed no where else, was the method employed by 
 the Donors, with the consent of the supreme authority, 
 and without any remonstrance on the part of the Donors. 
 — A long possession, in conformity to this order of things, 
 followed. — No one has any longer a right to complain 
 of it. 
 
 So long as Canada remained united to France, the 
 Seminary of Montreal had beyond all doubt, two kinds 
 of superiors : Istly. In spiritual matters, the Seminary of 
 Paris, as the Chief Establishment of the Society of the 
 Sulpicians, and the natural Director of the Communities 
 dependent on that Society : 2ndly. In civil matters, the 
 King of France, to whom the Seminary of Montreal 
 
 ■i 
 
SI 
 
 t of the 
 t' Com- 
 aph : — 
 liory of 
 for the 
 
 )ect the 
 ven the 
 
 mpUed 
 f Paris, 
 iployed 
 he esta- 
 be resi- 
 
 situate 
 ;ould be 
 oyed by 
 jthority, 
 Donors, 
 f things, 
 lomplaiii 
 
 ice, the 
 70 kinds 
 iiinary of 
 y of the 
 munities 
 ters, the 
 Montreal 
 
 I 
 
 1 
 
 owed Fealty and Homage in its quality of | ossessor of 
 certain Fiefs, and who was, as King, the Fatron of all 
 Public Institutions. 
 
 But the eftect of the Conquest was to transfer this su- 
 periority in Civil matters to the Kin^ of Fii«r!and ; ami 
 France ceased to exercise anv inlluciice over the Govern- 
 nient and alfairs of the Seminary of Montreal. 
 
 This existence of the Seminary of Montreal, as an 
 establishment distinct and separate from the Seminary 
 of Paris, is the less liable to be called in question, as 
 this separation was established even before the Concjuest, 
 by a number of instruments of indisputable authority. 
 (The whole of these acts are extant and may be seen 
 from 1 G<JG to 1744.) 
 
 It is in vain to oppose to this, arguments drawn from 
 certain expressions which seem to have indicated the 
 Seminary of Paris as the proprietor. It is a principle 
 that qualities erroneously ascribed cannot aii'ect the right 
 /of any one. — The same thing must be said of certain 
 Petitions presented, before the Conquest, to the French 
 Government, by the Seminary of Paris, acting for that of 
 Montreal. — If on these occasions the Seminary of Paris 
 appeared to identify its interests withlhose of the Semi- 
 nary of Montreal, to which it naturally bore a paternal 
 affection, it is not the less true either in fact or in Law that 
 the property of the Seminary of Montreal was not the 
 property of the Seminary of Paris, any more than the 
 property of the Seminary of Paris was that of the Semi- 
 
22 
 
 I 
 
 nary of Montreal.— Now, if this separation between the 
 two Seminaries and of their interests, was a settled point 
 even before tlie Conquest, how is it possible to refuse to 
 acknowledge it, after the Conquest has rendered it even 
 more clear by destroying every kind of connection be- 
 tween them ? 
 
 And let us further consider to what consequences the 
 arguments brought forward by tlie opponents of the 
 Seminary would lead. — According to them, the Donation 
 was made to the Seminary of Paris alone ; — the Seminary 
 of Paris w as the sole owner of the properly up to the 
 day of the Conquest ; and as it did not sell the same 
 within the delay stipulated by the Treaty of 17G3, and 
 as on the other hand the Act of the abandonment made 
 in favor of the Seminary of IMontreal on the 29th April 
 1764, was a nullity for want of being duly authorized, it 
 must follow that the property at Montreal remained with- 
 out any owner, and consequently fell to the Crown of 
 England as property belonging to the Demesne thereof. 
 
 If the premises on which this argument is founded 
 were true, the consequence to be deduced from them 
 would be completely the reverse of those just stated. 
 
 The conseque\^ would, in fact, be, that the parties 
 to the cession, acting in good faith, had merely mistaken 
 their rights and the manner in which the Treaty w^as to 
 be construed. — The Seminary of Paris did not believe 
 itself the absolute proprietor of an Estate over which it 
 understood itself to possess, at most, certain honorific 
 
 I 
 
 I 
 
 [■ 
 
''is 
 
 een the 
 d point 
 efuse to 
 it even 
 ion be- 
 
 ces the 
 of the 
 onation 
 3minary 
 p to the 
 e same 
 03, and 
 t made 
 1 April 
 rized, it 
 ed with- 
 :own of 
 thereof, 
 founded 
 n them 
 ted. 
 parties 
 listaken 
 was to 
 believe 
 f^hich it 
 onorific 
 
 rights, without any pretension to the profits arising from 
 that Estate : — it did not believe itself entitled to sell for 
 its own advantage and for the purpose of coiiv(^yiug the 
 price to France, a property which, in its opinion, ought 
 to remain consecrated to the performance of a work 
 which could only be performed in Canada, by a Commu- 
 nity established for that very ])urpose and to remain for 
 ever resident in Canada. — If there was error in this, all 
 the parties at least acted in good faith ; and the British 
 Government has itself too much good faith, to allow it to 
 be possible to suppose that it would wish to take unfair 
 advantage of so innocent an error for the purpose of 
 subsequently despoiling both parties, one of which at 
 incontestibly the true proprietor. 
 
 Now, this being the case, if this error is now for the 
 first time pointed out and acknowledged, is it not evident 
 that the parties ought to be replaced in the same conili- 
 tion hi which they were before, and that from the very 
 annulment of the cession of the 29th April 1764, as con- 
 taining a transfer which was null from a defect in point of 
 form, there would arise a right to dispose of the property 
 as it might have been disposed of on the day on which 
 the Treaty was made. 
 
 In fact, the Treaty having prescribed that the sale 
 should be effected within a certain time, is it, for exam- 
 ple, to be supposed, that if a sale made by a French sub- 
 ject to an English subject, and completed within the said 
 time, became void afterwards cither by default of thp 
 
 J 
 
34 
 
 payment of the price or through any defect of form, or 
 other legal cause, the })roperty would be forfeited to the 
 Crown of England?— Is it not evident, on the contrary, 
 that in default of payment the Frenchman might take the 
 property back, on condition that he should sell it again 
 immediately? — The reason is that there would in this 
 'case be no infraction of the Treaty to which it was the 
 intention of the Frenchman to conform, and that it was 
 only in consequence of a purely fortuitous and accidental 
 circumstance that the sale became void. 
 
 The same would be the case with regard to the Society 
 of the Seminary of Paris. — They believed that they had 
 complied with the condition of the Treaty, by declaring 
 that they abandoned, as far as need be, their right to 
 the property in question, in favor of those members of 
 their Society who had become British subjects : the vali- 
 dity of this abandonment cannot be disputed without an 
 acknowledgment that they are reinvested with the right 
 to dispose of the property within the shortest delay 
 possible. — The whole effect then, of the objection (if it 
 were well founded) would be to despoil the Sulpicians 
 of Montreal who are British subjects, and to re-invest 
 temporarily the Sulpicians of France who have remained 
 French subjects. — An argument of this kind would 
 scarcely be brought forward by the very well informed 
 agents of the British Crown, and still less by those who 
 only affect the language of men devoted to the advance- 
 
1 
 
 
 5^) 
 
 3rm, or 
 I to the 
 intrary, 
 ike the 
 it again 
 in this 
 »vas the 
 t it was 
 lidental 
 
 Society 
 ley had 
 iclaring 
 ight to 
 ibers of 
 he vali- 
 lout an 
 le right 
 t delay 
 )n (if it 
 Ipicians 
 3-invest 
 imained 
 would 
 iformed 
 )se who 
 dvance- 
 
 ment of the public interest, for the purpose of masking 
 their schemes of private advantage. 
 
 But it is necessary that a more correct method of con- 
 sidering the cession of the 29th of April 17G4 should be 
 adopted. 
 
 In the first place it may be said, that if it was neces- 
 sary that the said cession should be authorized by the 
 King of France, it was so authorized by virtue of the 
 Treaty of Peace, by which that Monarch ceded the entire 
 property of Canada to England, and placed his subjects 
 under the necessity of disposing of their property or of 
 becoming British subjects. 
 
 The validity of the cession might also be maintained 
 by the arguments developed in the opinion given on the 
 ISth August 1819, or it might be explained, (as it lias 
 been by me) in the sense given to it in my former 
 opinion, as an instrument which neither transferred nor 
 conferred any right of property but was simply declara- 
 tory that such right was vested in the only Members of the 
 Society ivho, being resident in Canada and having con- 
 sented to become British subjects, would thenceforward be 
 capable of continuing to possess it^ to the exclusion of all 
 others. 
 
 But it appears to me that its validity may also be 
 maintained by considering it in a new point of view. — 
 The Seminary of Montreal must always have looked upon 
 the Seminary of Paris as its superior. — In the latter there 
 was, if I may so say, a sort of moral proprietorship, a 
 
 B 
 
'!> 
 
 26 
 
 dominion of superiority, a power of superintendence. — 
 This tie (except with regard to what was purely spiritual 
 in it) was doubtless dissolved l)y the Conquest; batmen 
 who nie by their station devoted to the service of Cod, 
 w^ould naturally be more scrupulous than tlie generality 
 of maii'vind : for the latter it frequently suffices that a 
 thins: is not forbidden to induce them to consider it as 
 penniUed ; a purely moral obHgatlou does not stop them, 
 and they only give way to a rigorous obligation which 
 they would not be permitted to violate with impunity. — 
 If they had reasoned like men of the world, the Sulpicians 
 of Canada would not have required any act of the nature 
 of that of the 29th of April 17G4.— They would have 
 been satisfied with considering that they were as effec- 
 tually separated from the Sulpiciaiss of Paris by the Con- 
 quest, as Canada was from France by the Treaty. — But 
 the Seminary of Paris, by reason of the tender affection 
 which its Members bore to their brethren at Montreal, 
 was not willing that the latter should preserve the slight- 
 est scruple. — Looking on the Conquest as an event which 
 irresistably destroyed all tempo/al superiority, and 
 placed the Seminary of Montreal in a state of perfect 
 independence in this respect, the Seminary of Paris 
 generously came forward, and so far as need ivas, (but 
 without its being necessary) declared itself to have aban- 
 doned all the property of the Order at Montreal to such 
 of the members thereof as were about to become British 
 subjects, and to remain at Montreal. 
 
 \ 
 
 riz 
 acf" 
 tiol 
 au\ 
 ih 
 
 I 
 
tlencc. — 
 
 spiritual 
 
 l)ut mem 
 
 of God, 
 
 eiierality 
 
 es that a 
 
 del- it as 
 
 top them, 
 
 on which 
 
 ipiinity. — 
 
 Sulpicians 
 
 the nature 
 
 ouid have 
 
 e as effec- 
 
 y the Con- 
 
 saty.— But 
 
 T affection 
 
 Montreal, 
 
 the sHght- 
 
 vent which 
 
 oiity, and 
 
 i of perfect 
 
 \f of Paris 
 
 / was, (but 
 
 have aban- 
 
 eal to such 
 
 )me British 
 
 27 
 
 \ 
 
 This act wa'i not a Sale, for there was no price ; nor 
 was it a Donation, for nothing was transferred to the 
 Sulpicians of Montreal, which they did not before pos- 
 sess : they alone were proprietors, for the Letters Patent 
 of mortmain had been issued in 1777 for their sole bene- 
 fit, " /o be held and C7ijo}jrd by them mid their successors, 
 ^^ Members of the said Seminary and Community ;''^ they 
 alone Avere actually in possession; and if the Sulpicians 
 of Paris had offered to sell the property to any person 
 whomsoever, they would have opposed the sale. The 
 Seminary of Paris then abandoned nothing but its domi- 
 nion as Superior, the temporal superiority which had 
 belonged to it. The act performed by it on the occasion 
 in question may be compared to the Proclamation by 
 which Louis the Fifteenth, on ceding Canada, bade a 
 farewell to His former Subjects, and released them from 
 their oath of Fidelity. Declarations of this kind add noth- 
 ing to any existing rights, but they contain a declaration 
 of them ; they serve to reassure the more timorous con- 
 sciences. It was not necessary that en act of this kind 
 should be authorized by Letter3 Patent in France ; for 
 they are only required to acts of alienation ; no autho- 
 rization on the part of England was necessary, for by the 
 act the Seminary of Montreal made no new acquisi- 
 tion ; and the sole effect of it v/as, to ascertain in a more 
 authentic manner the fact of the separation operated by 
 the Conquest, and better to shew the willingness of all ihc 
 
 i 
 
2S 
 
 ¥ 
 
 Sulpicians to submit Jranklij to all the consequences aris- 
 ing from it. 
 
 Besides, the act in question ought not to be considered 
 without regard to an ir^portant circumstance connected 
 with it : before it was signed, the Seminary of Paris 
 caused a Letter to be written to Mr. de Guerchy, the 
 French Ambassador in England, for the purpose af as- 
 certaining: the views of the latter Power : and the said 
 Ambassador answered that the King of England consen- 
 ted that the Seminary of Montreal should continue to en- 
 joy its property in Canada, but without being dependent 
 in any way on the Seminary of Paris. 
 
 Now, it was precisely for the purpose of abdicating 
 the Supremacy which had constituted this independence, 
 that the Seminary of Paris subscribed the Declaration of 
 1764. 
 
 It is then most strange that an individual founding an 
 exception on the right of a third party, and usurping the 
 right of the Government, should venture to hold on this 
 head a language which the British Government could not 
 hold without violating its pledge, and that an attempt 
 is made, under cover of its name, to briuff forwni'd as an 
 infraction of the Treaty on the part of the Sulpicians, an 
 Act of Supererogation performed solely with the view of 
 better ensuring the execution of that Treaty, and con- 
 ceived in terms to which the King of England liad de- 
 clared diplomatically that He gave His assent. 
 
 I 
 
on 
 
 ces aris- 
 
 isidered 
 nnected 
 3f Paris 
 chy, the 
 le af as- 
 Lhe said 
 consen- 
 te to en- 
 penuent 
 
 idicating 
 jridence, 
 :'ation of 
 
 iding an 
 ping the 
 I on this 
 ould not 
 attempt 
 I I'd as an 
 ians, an 
 I view of 
 nd con- 
 had de- 
 
 The factitious importance thrown around the objection 
 now refuted arises from the superstitious attention paid 
 to the circumstance thattheDonation was originally made 
 to the Seminarij of Paris, and a clause inserted, that the 
 Island oj Montreal should remain inseparabhj united to 
 the said Seminary, tvltliout its being possible that they 
 should be separated for any cause or any occasion ivhat- 
 soever. 
 
 But, on the one hand, the sole object of this clause 
 of union with the Seminary of Paris, was to provide 
 that the ivork should not be transferred or entrusted 
 to Clergymen of any Order. The wish of the Donors 
 was that the property should always be possessed 
 by Sulpicians ; and this is the whole meaning of the 
 clause. 
 
 On the other hand, it will be seen that it was impos- 
 sible that the Donation should be made othervvise than 
 to the Seminary of Paris, v/hen it is remembered that at 
 that time there were in Canada only a few isolated Sul- 
 picians, not united into a Corporation, and not then form- 
 ing a legally constituted Community on the spot, capable 
 of acquiring property directly. Under these circumstan- 
 ces it was necessary to make the Donation to the chief 
 Establishment of the Order, leaving it to that Establish- 
 ment, since it could not itself take possession, to obtain 
 (as it afterwards did) the necessary authority for estab- 
 lishing on the spot, a Community capable of possessing the 
 
 ^ 
 
so 
 
 property given, and of fulfilling the conditions annexed 
 to such possession. 
 
 Let us make this clear by an exani[)le : I bequeath to 
 the University at Paris, a house situate in the Depart- 
 ment of Ardennes, and an annual income of twenty 
 thousand Jrancs, on condition that the University shall 
 establish a College at the said ))lace for the instruction 
 of the people of the Country. The bequest is accepted; 
 the Colleoic is established. Is it not evident that the 
 De{)artment of Ardennes might l)e conquered a hundred 
 times, without any possibility that its separation from the 
 Kingdom of which Paris is the Capital, should effect a 
 revocation of the bequest ? All that would result from 
 the Conquest, would be, that the College would cease to 
 be under the same system of Government as the Univer- 
 sities of France, and would be thenceforward under the 
 inspection of the authorities established by the new 
 Sovereign ; but the College would remain the property 
 of the Country, for the benefit of which it was founded. 
 
 The same thing would take place, if, wishing to found 
 an Hospital, or an Establishment of any other public nature 
 whatever, in any of the Provinces, I had bequeathed to 
 the King as the head of the State, a certain sum 
 to be there employed for that purpose. When the money 
 had once been so employed, the establishment would 
 remain the property of the Country, for the benefit of 
 which it v.as founded ; if that Country were conquered, 
 
 I 
 
31 
 
 nnexed 
 
 cath to 
 Depart- 
 tweiity 
 y shall 
 :ruction 
 cepted; 
 hat the 
 lundred 
 10 m the 
 effect a 
 lit from 
 ease to 
 Univer- 
 ider the 
 le new 
 roperty 
 iiided. 
 found 
 mature 
 thed to 
 m sum 
 uioney 
 ; would 
 nelit of 
 :{uered, 
 
 all its dependencies would be conquered with it, and the 
 former Sovereie^n would not bo allowed to sav, *' Tlic 
 " bequest was orioiually made to me." ilc would be 
 
 (( 
 
 do to 
 
 th( 
 
 answered, " les, it was made to you, as tne Head oi tlie 
 '* State of which you were then King, in an intermediate 
 " capacity, and as haviuj^ alone i\ui power to autlioiize 
 ** the execution of the condition ; l)ut when that authori- 
 " zaiion was once f>iven by 30U, the establishment ac- 
 " quired an existence peculiar to itself: by the Conquest 
 " you ceased to have any right to the soil, and were 
 *' de|)rived of your supremacy ; you have no right to 
 " deprive the Country of a right which has been con- 
 *' ferred on it, of an Institution which was founded for its 
 " benefit and which it ought to continue to enjoy." Now 
 the same argument holds whh regard to the Donation 
 made to the Sulpicians of Paris. It was only made on 
 condition that the property should be applied to the con- 
 version of the Indians in Canada : for- this puipose a 
 Community and Seminary was specially erected in Ca- 
 nada, and authority given to hold tlie property in mort- 
 main for the benefit of the said Communitv ; from that 
 moment, the icliole benefit of the said Inst'itutioji loas vested 
 in Canada ; and the Conquest, the effect of which was 
 to cause Canada and all that belonged to it to pass under 
 the Sceptre of England, had not the effect of authorizing 
 the Seminary of Paris to take back or to sell the pro- 
 perty of the Seminary of Montreal, any mere than it 
 
 had that of authorizing the King of Franca^r dispose of 
 
 y mgr 
 
/ 
 
 -4 
 
 llic Hospitals, Magazines and iOstablishmcnts beloiif^infif 
 lo the French Covcrnment in the Province of Canada. 
 
 And the consequence thus deduced is so much the 
 more legitimate, that it is strictly conformable to the 
 spirit of the Institutions of the Church, which in every 
 article which is not a matter of faith, adapt themselves to 
 all the changes which take place in the Government. 
 Be ye subject to the Powers that bc^ is the recommenda- 
 tion of the Gospel : be obedient to the Princes, ctiam 
 discolis. And thus the Con([uest of Countries, and the 
 partition of States, have indeed the effect of changing 
 the temporal blaster to which Church Establishments 
 are subject, but have not the effect of annihilating Esta- 
 blishments founded with a view to their being maintained 
 for ever. 
 
 Let us then conclude whh regard to this second ques- 
 tion, that the Seminary of Montreal being before the 
 Conquest legally the proprietor of the property to be 
 held in mortmai ^. for its benefit, did not cease to be so 
 after that event ; that its right continued to subsist, and 
 that the declaration of 1764, in recognizing this right, did 
 not confer it, but merely made it more evident in so far 
 as need might be. 
 
 UII. 
 
 I 
 
 The Seminary of Montreal would, by the mere fact of 
 its possession, by virtue of a Title uncontested by any 
 
iiada. 
 ucli the 
 to the 
 1 every 
 elves to 
 rnnient. 
 inieiula- 
 s, ctiam 
 and the 
 hanging 
 shnients 
 g Esta- 
 intained 
 
 id ques- 
 hre the 
 y to be 
 to be so 
 sist, and 
 ight, did 
 in so far 
 
 fact of 
 by any 
 
 33 
 
 parly cnlHlv.d to contest ily have a right to bring the. action 
 which Jorms the subject of dispute. 
 
 It is uncontcstible that llie Sulpicians of Montreal are 
 in possession of all tlie property attached ) their (com- 
 munity. They inhabit the house which is the seat of 
 their establishment; they lease the lands belonging to it; 
 they enjoy both the lucrative and honorific rights depend- 
 ing on it ; they enjoy the whole peaceably, publicly, 
 animo dominie and in good faith, that is, with a conscien- 
 tious belief that they have a right so to enjoy it. 
 
 To all these characterirtics of a legitimate possession, 
 is added the length of its duration. The period oi this 
 possession may be divided into two : 
 
 Istly. That from 1G67 to 17G3, comprising eighty-six 
 years before the Conquest. '^ 
 
 2ndly. That from 1763 until the present time, compris- 
 ing seventy-two years since the Conquest; the whole 
 period being one hundred and forty-eight years ; and as- 
 suredly to a possession of this length, the epithet lo?igis- 
 sima possessio is applicable. 
 
 It may be further urged, that this possession is not 
 merely the work of the Sulpicians o^' Montreal, but is 
 also that of the two Governments which were succes- 
 sively established in Canada ; that it took place with their 
 knowledge and in their sight, and contradictorily with 
 them since this possession has been recognized in public 
 and authentic acts emanating from the Government of the 
 
 ■■"■ ''y 
 
 I 
 
34 
 
 Country al difriMcnt periods. Wc sliall not enumerate 
 these acts here, !)ecausc tlie list would be too long ; but 
 they are extant, and it would be easy for the Advocates 
 to lay an analysis of them before tlie Judges. 
 
 i\nd this is the place for considering the objections 
 which are found in the opinion emitted by the Chief Jus- 
 tice (Sewell,) who has looked upon the question chiefly 
 with reference to the possession. 
 
 The Judge in question says, that those who have only 
 a possession h titre prccaire, cannot bring an action of 
 complaint : he is right ; and it was superfluous to cite 
 ' Domat as an authority to prove this incontestible point. 
 
 The fact is, that he who has only obtained possession 
 by borrowing from another, and has only permission to 
 inhabit, or to enjoy temporarily the property of another, 
 can bring no action with reference to the thing itself, to 
 which he has not and cannot have any right whatever. 
 He whose title is precairc, knows, says, avows, confesses, 
 ^ that he is not on his own property, that he does not 
 possess on his own account, and is bound to quit the 
 property as soon as he is called upon to do so. 
 
 But this is not the position of the Ecclesiastics of the 
 Seminary of Montreal ; they are in possession, and have 
 always been so, on their own account, and in their own 
 name, and not on account of others. They are in pos- 
 session, at the same that they call themselves and claim 
 to be proprietors, anlmo clomini. 
 
so 
 
 ineratc 
 
 - 
 
 0-; but 
 
 !■ 
 
 ocates 
 
 : 
 
 ections 
 
 1 
 
 iei'.lus- 
 
 
 chieily 
 
 J 
 
 ve only 
 
 i 
 
 :tion of 
 
 I 
 
 to cite 
 
 
 point. 
 
 
 session 
 
 / 
 
 sion to 
 
 "^ 
 
 nother, 
 
 i 
 
 tself, to 
 
 
 latever. 
 
 ;:; 
 
 ifesses, 
 
 \ 
 
 i, 
 
 )es not 
 
 1 
 
 [uit the 
 
 
 ; of the 
 
 ■) 
 
 id have 
 
 1 
 i 
 
 eir own 
 
 "■•; 
 
 in pos- 
 
 
 d claim 
 
 i 
 
 The action of complaint then belongs to them in tlicir 
 ([uality of possessors, and as the actual owners of ihe 
 Lund and Seigniory of Montreal. 
 
 To this it has been objected by the Chief Justice, that 
 the right of banalUc being a servitude, the Seminary of 
 Montreal could only be entitled to bring the action on 
 its producing a Title ; and he has cited divers authorities 
 in support of this position, and more especially the 71st 
 Article of the Coulume de Paris. '* Now," he continues, 
 ** the Respondents have felt how necessary it was for 
 ** them to prove that a Mill had been built ; they have 
 " also proved themselves to be the tSeig?iioys in posses- 
 *' sio?i ; but in order to maintain the action, it would have 
 *' been necessary for them to prove that they were 
 " Seigniors and Proprietors." 
 
 The Judge is right : It would not be sulhcient for 
 them to be possessors, if there was no title. But in 
 what sense is this expression to be understood ? Pothier 
 answers this question in his Traite de la Possession, 
 No. 90, where, after having cited the maxim : " JVw//c 
 " servitude sans litre ;" he proceeds as follows : " But 
 *' when he who has enjoyed the servitude produces a 
 *' title by virtue of which he has enjoyed a right of way, 
 *' or any other servitude whatever on an estate, tjien, 
 " although the possessor[of the estate who has troubled 
 such enjoyment, should contest the validity of tlii\,' 
 titles still the enjoyment which ha:^ been had by the 
 other party under such title, is no longer to be con 
 
 a 
 
 a 
 
 (f, 
 
30 
 
 " sidered as a mere act of sufferance, and is sufficient to 
 " enable that party to maintain an action of complaint, 
 " and to demand to be provisionally maintained in the 
 " enjoyment of the servitude, tmtil the petitory action be 
 ^^ finally decided.''^ 
 
 ''No. 01. The same rule holds with reference to all 
 " such rights as are of a nature not to be acquired by 
 " mere possession without a Title, such as the right of 
 *< banalite, the right of Corvee. The Seignior who has 
 
 enjoyed them without a title, cannot maintain an action 
 
 of complaint in order to enforce them ; the possession 
 " which he has had without a title being presumed to 
 
 have been originally unjust and forcible, and founded 
 
 on an abusive exercise of his power ; but when the 
 " Seignior produces a title, although that title be dispitte(\, 
 " it is sufficient to enable the Seignior to maintain his 
 *' action, and to entitle him to be maintained provisionally 
 *' in the right to which he lays claim, until such time as 
 *' the petitory action shall have been finally decided.''^ 
 
 We are to remark here that Pothier supposes that the 
 contested title in question, is the title ivhich establishes 
 the ris[ht of banalite ; the title which vests that rio:ht in 
 the Seignior ; and not the title which would prove such 
 or such person to be the proprietor of the Seigniory and 
 entitled to the rijrhts attached to it. 
 
 Now in the particular case in question, it is not con- 
 tested that the right ot banalite in itself is vested in the 
 Seignior of Montreal, this fact has always been avowed, 
 
 n 
 
 <( 
 
 <c 
 
 (( 
 
 i 
 
 y 
 
37 
 
 and is admitted ; and Fleming, as a ccusitaire of the 
 Seigniory, could not have contested this right without 
 contradicting the tenor of his contract. 
 
 What then is the point which he contests ? lie merely 
 denies that the Ecclesiastics of the Seminary of 3Iontreal 
 are personally the proprietors of the Seigniory of Mon- 
 treal : he maintains that the said Seigniory belongs to the 
 Crown of England : he supports this assertion by argu- 
 ments which we have refuted in the two preceding para- 
 graphs. If then the Crown of England despoiled the 
 Seminary of its possession, Fleming would without hesi- • 
 tation ackuowlege that he ought to lose his case : he ^ 
 maintains simply that he ought )iot to lose it while the 
 Ecclesiastics aforesaid are his adversaries : his objection 
 is personal, and not real; it does not go to the right of 
 banalitc itself, which he recognizes as existing, but to the 
 person who is legally the proprietor of the Seigniory and 
 of the rights attached to it. 
 
 Now, in this point of view, Fleming is beyond the 
 terms of the question, because the title of which Pothier 
 speaks is the title proving that the right of banalilc be- 
 longs to the Seigniory, whoever may be the Seignior, and 
 not the title proving ; hat any particular person is proprie- 
 tor of the Seigniory in preference of any other. 
 
 The mere possession of the light oi banalitc which is 
 contested, is not suificieni; to maintain a posse ssory action 
 of complaint founded on such right ; there nmst be a title 
 shewing that the right of banalile belongs to the Sei- 
 
 t 
 
08 
 
 gniory. It is in this sense only that the Chief Justice is 
 right. But when this point (which is the only one in 
 which the vassal is really interested) is admitted ; it mat- 
 ters little who is the Seignior ; for who ever he may be, 
 / the right of hanalite belongs to him as such. 
 
 Even if the actual possessor of the Seigniory were not 
 the legitimate proprietor, the (question is one which the 
 vassal would have no right to raise ; for as far as he is 
 concerned, this would be to found an exemption on the 
 right of a third party. The vassal has a right to maintain 
 that the right of banalite is not due, if he thinks it is not ; 
 but if he admits that it is due to the Seignior, he cannot 
 go beyond this, and dispute the personal title of him who 
 is at the time in possession of the Seigniory. 
 
 And so far is he from having a right to do this, that 
 even when he contests the title on which the right of 
 banalitc is founded, this does not bar the action of com- 
 plaint ; it is sufficient that there is an apparent title. 
 How then can an action of this kind be barred by a con- 
 testation^ not of the right oi banalitc (which is admitted), 
 but of the personal title of the possessor of the Seigniory. 
 
 It is in a case like this that possession alone is suffi- 
 cient for the possessor i because though his want of a valid 
 title to the proprietorship of the Seigniory, may be a 
 subject of interest to the real proprietor of the Seigniory, 
 it is by no means so to the vassal with reference to whom 
 a right of banalile has once been shewn to be vested in 
 the Seignior. 
 
 c 
 
 s 
 
 a 
 
 t] 
 a 
 1 
 
39 
 
 Justice is 
 ily one in 
 d ; it mat- 
 le may be, 
 
 f were not 
 which the 
 ir as he is 
 on on the 
 
 maintain 
 it is not ; 
 
 he cannot 
 f him who 
 
 this, that 
 3 right of 
 
 1 of com- 
 ment title, 
 by a con- 
 dmitted), 
 jeigniory. 
 
 is suffi- 
 of a valid 
 lay be a 
 eigniory, 
 to whom 
 nested in 
 
 
 Moreover, it is only for the sake of the principle that 
 we have drawn the distinction between the title which 
 establishes the right of hanaliti itself in favor of the Sei- 
 gnior, and the title which shows that some particular 
 person is the Seignior rather than another ; for, in the 
 case in question, the Seminary is not reduced to the 
 necessity of founding its claim on its possession. Tho 
 possession is alleged, because without it the Seminary 
 could not maintain the action of complaint ; but the pos- 
 session alleged is a possession accompanied by a title. 
 This title is that which we have taken pains to establish 
 fin the two first paragraphs of this opinion. 
 
 Fleming contests it ! But he is not entitled to do this, 
 and in doing it he founds an exception on the right of a 
 third party. The decision of Pothier is against him, that 
 author expresses himself in these terms, at No. S3 of the 
 Treatise before cited : '« with regard to the rights which 
 " possession confers, and which are common to all posses- 
 sors, the principal is that of being provisionally consi- 
 dered proprietors of the thing of ivhich they are in pos- 
 session^ until it is legally claimed by him who is really 
 ** the proprietor of if, or ivho has a right to claim it ; and 
 ** even ajter it Juxs been so claimed^ until he ivho has 
 ♦' claimed it has proved his right" 
 
 " The possessor, be he who he may, being reputed 
 the proprietor of the thing he possesses, mitil it be 
 legally taken from him, ought in the mean time to 
 receive the profits, and to enjoy all the rights, either 
 
 (( 
 
 (( 
 
 (( 
 
 C( 
 
 <; 
 
 <( 
 
40 
 
 ^ 
 
 (( 
 
 (( 
 
 honorific or useful, attached to the possession of tiie 
 
 thin 
 
 
 » 
 
 No. 82. "The possessor, be he who he may, wili 
 
 " also have an action to be maintahied in his jmssessmiy 
 
 *' when he is troubled in it by any one, or to be restored 
 
 ^ *' to it when any one has forcibly dispossessed him of it." 
 
 ' The Seigniory belongs, it is said, to the King of Eng- 
 land : very well, let the King of England, if he thinks 
 his claim well founded, bring an action by the interven- 
 tion of his Officers, for the purpose of recovering it : the 
 Seminary will defend the action if ever it is instituted, 
 and then one of the two things will happen ; either he will 
 gain the suit, and so recover the Seigniory in all its inte- 
 grity, without the loss of any right attached to it; or on the 
 other hand the Seminary will prove that it is the proprie- 
 tor ; and, in this case also, it will not in the interim have 
 lost any of the advantages derived from its possession. 
 But, if in the meanwhile, and under the frivolous pretext 
 of the possibility of a claim which will undoubtedly never 
 be made, the Courts refuse to maintain the possession in 
 all the integrity in which it now exists : the property 
 itself is deteriorated and pillaged, it is left open to the 
 
 yf attacks of the first comer, since it cannot be defended 
 either by the Crown of England, which does not offer to 
 become a party to the suit, nor by the possessor, who is 
 denied the right which w^e maintain to belong to him, of 
 exercising provisionally all the rights of the proprietor so 
 lo\jg as tiie latter refrains from making his claim ; for 
 
 
 /'^ 
 
 / 
 
n of the 
 
 nay, will 
 ^ssess'ioriy 
 restored 
 ini of it." 
 : of Ed 2:- 
 16 thinks 
 interven- 
 2; it : the 
 istitated, 
 ?r he will 
 I its inte- 
 31' on the 
 proprie- 
 im have 
 ssession. 
 
 pretext 
 ly never 
 pssion in 
 property 
 1 to the 
 lefended 
 ; offer to 
 , who is 
 
 him, of 
 'ietor so 
 iirn ; for 
 
 4 
 
 / 
 
 41 
 
 this, we repeat, is the proper characteristic nnd effect of 
 possession. 
 
 The possession alone would be sufHcient to assure 
 Fleming that all the payments which he might make to 
 the Seminary would be valid, and that all the judgments 
 which might intervene would be regular, even if the 
 Seminary should afterwards be evicted ; for possession 
 /•has this advantage as far as third parties are concerned, 
 that every transaction which takes place in good faith 
 between them and the possessor, must be respected 
 by the proprietor who may thereafter cone nto posses- 
 / sion. 
 
 But, (and we cannot repeat th's too frequently) the 
 arguments of the Seminary are not founded on the mere 
 fact of the possession : it has a Title ; it is really the 
 proprietor of the property in its possession ; it has 
 been so from the beginning ; — for, from the year 1677, 
 the time at which the Donation of 1G63 received the 
 Royal Sanction, it was legally constituted a Seminary 
 and Community, and it is in this quality, and by the 
 same Letters Patent, that power was given to hold 
 the property at Montreal in mortmain for its use and 
 benefit. 
 
 It matters little that the Donation was nominally made 
 to the Seminary of Paris ;— the fact is, that the latter 
 Seminary was never in a condition to perform of itself 
 the work for which the Donation was made ;— the Es- 
 tablishment at Montreal was alone capable of doing so, 
 
 E 
 
 > 
 
 « 
 
42 
 
 / 
 
 From that time forward tlie Establishment at Paris 
 j)reserved nothing but a moral supremacy, a kind oj 
 mastership which was the consequence of the Ecclesiatic 
 discipline which directed that all the secondary establish- 
 ments should be dependent on the central one : but this 
 tie, which in no way effected the exclusive enjoyment of 
 the Priests of the Seminary of Montreal, was broken by 
 the Conquest ; and the act of abdication of the 29th April 
 1764, contains a more than sufficient and solemn declara- 
 tion of this. 
 
 The same thing holds with respect to the Sovereignty 
 of the King of France ;— it was transferred to the King 
 of England. But the right of property vested in the 
 Sulpicians was in no wise affected by this. 
 
 Before the Conquest, they were co-propriel?}?s 7io?i tit 
 singuli, sed tit imiversi, as Members of the Company of 
 Priests of the Seminary of St. Sulpice at Paris ; and the 
 right of property w^as specially vested in them as the 
 only Menibers capable of performing the work for the 
 performance of which alone the Donation had been 
 made. 
 
 After the Conquest, this right of property, so far from 
 being in any wise weakened, became more firmly vested 
 in them. They acquired nothing at this time from the 
 Seminary of Paris ; but the Seminary of Paris ceased to 
 have, even in appearance, any share in the property which 
 its members, who remained Parisiens and French subjects, 
 were thenceforth incapable of possessing, and which they 
 
43 
 
 ■proprie- 
 
 
 had no right either to sell or to retain, to th 
 either of the terms of the Donation or of their 
 tors in Canada. 
 
 The right to the property in Canada was not transfer- 
 red in 1764 to the Sulpicians of Montreal, but remained 
 vested in them ; they did not acquire it then, but they 
 contmued to be proprietors by virtue of the same title as 
 before ; as Sulpicians exclusively bound to perform the 
 work in Canada, they preserved their right entire ?ion tarn 
 jure accrescendi quam jure 7ion decrescendi : in the same 
 manner as in the case ofa bequest made simultaneously to 
 several joint legatees, the right to the whole, in case of 
 death, incapacity, or refusal on the part of any of them, 
 becomes vested in those only who are capable of taking 
 the thing bequeathed. 
 
 The Conquest had the same effect as would have been 
 produced by the total extermination of the Establishment 
 at Paris, by a plague or any other misfortune. In that 
 case, the Members of the Community who Avere in 
 Canada, would not have suffered any diminution of their 
 right to their House and property. — In imiversitaiibiis 
 nihil refert ntrtlm omnes idem maneant^ an pars maneat, 
 vel omnes immutati sint ; sed si universitas ad unum reditu 
 magis admititiir posse eum convenire et conveniri, cum jus 
 omnium ad unum redierit, et siet nomen universitatis. — L. 
 7. 5, 2 ff. Quod cujusque universitatis nomine agaiur 
 Jiat. 
 
 The accumulation of so many arguments in favor of the 
 
44 
 
 Seminary seem to us to have placed its rights in the 
 clearest possible light. 
 
 This right is certain. It has not been contested by 
 any party who had a right to contest it. There is even 
 reason to hope that it will never be so contested. 
 
 The Seminary of Montreal has no Members who are 
 not English subjects ; they have a right to reckon on the 
 justiceoftheir Gracious Sovereign.— If any unhappy advice 
 should be given him, it would not be followed. — Their 
 enemies cannot represent these Ecclesiastics as ambitious 
 or turbulent men, or as dangerous to the peace of the 
 State : they have done nothing but good in Canada, by 
 founding there, establishments conducive to the progress 
 of science and the arts, to public instruction and the ex- 
 ercise of charity. 
 
 ** The state of these Priests is altogether free, says 
 «* the learned Durand de Maille ; (in his Dictionnaire de 
 " Droit Canonique, under the word " Sulpicien ") they 
 " make no vow of greater or less strictness ; they are 
 " united among themselves by nothing but a noble zeal, 
 " to which they join all that knowledge which is neces- 
 " sary to enable to supply the Church with worthy 
 « Ministers." 
 
 Can there exist a better Title to public esteem, to the 
 protection of the Laws, and the favor of the Magistrates* 
 / Paris, 10th June, 1826. 
 
 (Sgned,) DUPIN, 
 
in the 
 
 ted by 
 8 even 
 
 ho are 
 on the 
 advice 
 -Their 
 bitious 
 of the 
 da, by 
 jgress 
 he ex- 
 
 , says 
 tire de 
 )they 
 3y are 
 ! zeal, 
 leces- 
 orthy 
 
 to the 
 rates* 
 
 [N.