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To the Senate of the Univeraity of Toronto: The Special Committee of the Senate appointed to investigate and report on the claims of the University against the late Province of Canada, as s.,*ecified in the order of reference, dated the 11th January, 1895, present the following as a Separate Report on the University's claims in respect of certain loans made to Upper Canada College out of the trust moneys of the University Endowment. 1. From various Parliamentary Returns, and the early records of the Univer- sity, your Committee find that the Univeisity Council, prior to the opening of the University, advanced moneys by way of loans to Upper Canada College, between 1829 and 1848, to pay (1) the cost of erecting the College buildings and the residences for the Masters ; (2) the expenses of bringing out from England the Masters for the College ; and (3) the annual overdraft or deficiency in income, so as to make up sufficient to pay the salaries of the Masters and the other yearly expenses of the College. 2. There is nothing in the University records prior to June, 1831, autho- rizing these advances or loans to Upper Canada College. In response to an enquiry of the House of Assembly, in 1835, as to the authority under which the advances had been made, the then Bursar gave the following explanation : " The late General Board of Education was requested by the Lieutenant-Go\ < rnor to undertake, with his express sanction, the entire management attending the erec- tion of the buildings for Upper Canada College ; and the Treasui'er of the College, [who was also Bursar of the University], was authorized by the Board to tempor- arily make use of the Board's funds in his hands, until those of King's College were enabled to repay the same, to which arrangement the University Council gave their assent." (See Appendix to Journals, 1836, No. 64, p. 6.) 3. In the Minutes of the University Council of 18th June, 1831, we find the first reference to the loans which had been previously made to Upper Canada College. At a meeting of the Council, held on that day, a communication from the Lieutenant-Governor's Secretary was read, enclosing a copy of a letter to the Commissioner of Crown Lands, informing him that 66,000 acres had been appro- priated by the Crown under an Order in Council, as an endowment for Upper Canada College, and intimating that " as certain expenses incurred by the Trustees of Upper Canada College, had been defrayed from the funds of King's College," he was to i)ay the proceeds of the sales to the Bursar of the University. The University Council in reply requested that such portion of the 66,000 acres as would replace the advances made, and to be made, to Upper Canada College, should be conveyed to the University. At a subsequent meeting of the Council, held on the 28th July, 1831, a letter from the Lieutenant-Governor was read suggesting that the Council's proposition should be varied as follows: "That King's College should hold intrust 20,000 acres of the lots oi'dered by His Majesty's Government to be set apart for the support of Upper Canada College, until all sums advanced by King's College shall be repaid to that Corporation." The University Council consented to this varia- 2 tion, on the condition that the 20,000 aort's slinuM lie granted \>y patent to tliu University, to hold upon the trusts int ationed in His J^^xcollency's letter. At the same meeting a further letter from the Lieutenant-Governor was reail recomuiending that two members of the (.'ouneil shoidd he relieved from the personal responsibility they had incurred by l)oir()wino-, for the use of Upper Canada College, the sum for which the land sot apart in York (Toronto) for the support of a Grammar School had been sold. The Universit}' Council assented to this, upon receiving a patent for the land so set apart. The property referred to was known as part of block I), or Grammar School reservation, which had been occupied by the College while the buildings on Russell Squiiro were being erected. (See Univ. Cotn'rs Report, 1S51, p. 852, and Min. Book, .. 2, p. 13G.) The letters and i^roceedings above referred to, are appended to this report as Appendix No. 1. Your Committee find that the above agreement between the Lieutenant- Governor and the University Council, was given effect to by several Ordeis-in- Council dated in 1831 and 1832, and by various patents vesting the whole land endowment of Upper Canada College in the ITniversity upon the special trusts set forth in an extract from the Letters Patent appended to this report as Appen- dix No. 2. 4. These loans to Upper Canada College commenced in 182D and went on increasing yearly up to 1843, when they amounted, without interest (including the Board's loan hereinafter mentioned), to £42.:iiS4 7s. ."xl. etn-reney, equal to S169, 137.48, and they re])resent so nnich capital abstracted from the Uiuversity Endowment. The accounts presented to the Legislature sIk.w that the Univei-- sity Council occasionally had to resort to Bank discounts to provide for these loans to Upper Canada College. (Sec Appendix Q.C,). to the Joui'nals, 1840. ) In the general summary of " Expenses and liOsses," given in tho leport of the University Commissioners, presented to Parliament in 18.51, it is stated that these loans, with the accrued interest up to the end of 184!), amounted to £75,;")00 .^s, Od. currenc}', equal to !?302,02') (pp. 53 and 348). And in reporting on them the Com- missioners express their " regret to find that an educational institution so amply endowed by the Legislatuie and the Ciown, as they find Upper Canada College to have been, should have been permitted to trench sc largely upon the resoui-ces of the University, to the interest and progress of which it was intended to be contribu- tative " (p. 33, see also pp. 35 and 340). And they also intimate that had the affairs of Uppei' Canada College been properly attended to, its net income might have sustained a charge for tlie interest on its debt to the University (p. 343). 5. Li a report of the Legislative (.'ommittee on Education, presented to the House of Assembly in 1833, the practice of making loans to Upper CaJuida Col- lege by the University Council had been similaily condennied : " It appears from evidence and documents on the Journals of your Honorable House, that the Minor or Upper Canada College is greatly indebted to the Univeisity of King's C'ollege. This fact, obtruding itself on the notice of your Connnittee, they consider it their duty to bring it under the notice of your Honorable House. * * * How far the University Council is legally authorized, to expend their funds for any other purpose than that of ])romoting the oljject for which the Charter and Endowment v/ere granted, your Coirnnittee presume not to determine ; but with every I'espect for the members of that Council they feel no hesitation in express- ing their decided disapprobation of such a proceeding. Noi' do they believe it to be regular, or justified by precedent." (See Apjiendix, 1832-3, j). (J9.) (). With reference to the explanation given to the House bv the Bursar in 1835, above referred to, youi' Committee find that the i^arliani((iit;uy Returns show that the General or Provincial Board of Education, which fioni 1823 to 1832, had the superintendence of the (irannuar and Common Seiiools (for the support of which 190,790 acres had been appropriated), and were also the ( Joverinnent Trustees ;i ML' of Upper CfUiadii College, jiI.m) ailvancod to Upper Ciinmlii College on behalf of the Provincial (lovfi'iimeiit, the sum of S2.'),')71.0- for similar purposes. In the Returns laid before the House in bS.SO (Nos. \H and 04) these advances. 01 loans, appeal" in the Board's accounts as having Ijcen made "until the funds of the University of King's College arc able; to redeem them;" and in 1834-5 they appear to have been so redeemed by sundry pnyments out of University moneys made by the then Bursar to the Receiver-General " on account of School lands." And in a niemorany the Provincial Government to Upper Canada College, the security for the repayment of which, as well as its own loans, had been continued to the University by Orders-in- Council and Letters Pa^^ent. 8. Yo'U' Committee consider that notwithstanding this legislation of 1849, the Univei'sity has a claim on the good faith and honour of the Crown to recoup the University out of the balance of the ungranted endowment of 132,483 acres set apart for the University in 1797, and recognized b}' the Executive Government of Upper Canada in 181I>, 1828 and 1830. (See University Commissioner's Report 1851, p. 10, 17 and 18; Appendix to the Journal, 1831, pp. 105-9; Sessional Papers, 1881, No. 31, p. 2.) 9. The facts stated in this Report will show how the Univer.^ity has dealt with Upper Canada College ; and your Committee concur in the remarks of the late Minister of Education that " the record of the CoUey-e has been one of much educational usefulness ; and from the nature of its work, it has performed an impor- tant and beneficial part in the higher education of the youth of this Province, and during its existence of half a century, it has had an important influence upon our national character." (Se.ss. Paper No. 31 [1881], p. 2). But, whil conceding this, your Committee submit that it was not just to the important claims of University education that a large portion of an endowment specially dedicated by the Crown, and charged with the trust and duty of providing for the higher branches of Liter- ary and Scientific Education, should have been diverted to sul)ordinate educational purposes. And it is submitted that if the endowment of Upper Canada College was insufficient for the educiational work it was established to perforin, its claims should have been recognized and dealt with by the Legislature and Government which were responsible for its establishment. And in support of this view the Report of the Legislative Committee on Education, previously referred to, may be cited : — " In regard to the support of Upper Canada College, your Committee entertain no douljt that on a respectful representation to His Majesty's Government, an endowment will be granted to that Seminary as a separate and Royal i^'ih, oxcliisivc of tlio school liuuls origin- ally set ni)art for the University nnd District (Jranmiar Scluiols. It is, indeed, manifest I'roni the spirit of the letter of the Dtdie of Poitlnnd, in 17f»7, that fur- ther grants would have been cheerfully made luid they heen rcc|uestcy the Statute, the Univer.sity Surj)lus Income Fund was at the disposal of Parliament, he presumed it was " the intention of the Govern- ment to introduce a law during next session to confii-m the appropriation." No such law was ever passed, nor was the money thus taken from the University Endowment ever appropriated, or voted, by Parliament to Upper Canada College. The Order in Council is appended to this Report as Appendix No. 3, The then University Act, C. S. U. C. c. 62, created a "CJeneral Income Fund," composed of the respective incomes of the University and Upper Canada College (s. 75). The income of the latter institution was defined to be that derived from the property of its Corporation and was designated the " Special Income Fund " of Upper Canada (Jollege (s. 77). The remainder of the General Income Fund was designated the " University Income Fund," and the Governor-in-Council was authorized to appropriate out of it whatever sums should be required ^or the current expenses of the University and University College (s. 78). The Act then provided that "any surplus of the University Income Fund remaining at the end of any year, after defraying the expenses payable out of the same, shall constitute a fund to be from time to time appropriated by Parliament for academical educa- tion in Upper Canada" (s. 81.) By the present University Property Act, R. S. O. c. 231, s. 22, this "Surplus Income Fund" is declared to be the permanent property of the University. 11. Your Committee, after much deliberation, submit that under the statutory provisions then governing the appropriation of this " Surplus Income Fund," it was not within the prerogative of the Governor-in-Council to authorize the Bursar to pay any moneys out of that fund to Upper Canada College, without the previous sanction of Parliament; and that, as there was no Parliamentary auth- ority for such payment, the University .should claim that this sum of $4,444.42, so improperly or improvidentplly taken out of the University moneys, is a debt or liability of the late Province of Canada; and that steps should be taken to have the same refunded to the University Endowment, with interest thereon from the 13th June, 1860. f. 12. Your Cdiiniiiitci' iilsn liml tliat on tlic 1 2tli Ndvcniln r, l- tlie Univeisity was, and still is, entitled to recover the interest on these loans tor the period they were current. 13. Your Coinniittee al.so report that by rejent legislation, ■')•') \'ic. c. 6.S, the t'onner site of Upper Canada ( 'olle^fe, known as Iliissell Scpiaie, is vested in the (h'own, and may be transferred to the University subject to the f(jl low inj^ charges on the rents and profits, and the pioceeds of all sales thereof according to the following priorities: (1) Eypen.sesof nianagenit'Ut and administration, and an^- local iniprovenient Vmrdens ])ay8,ble by the University, with interest thereon at four and a-half per cent, per anninn. (2) Advances made out of University funds, iuuounting to !:?.')(J,().'),S.I.t, to pay the balance due by Upper Canada College, in respect of the erection and eijuip- ment of the buildings for the College, with interest thereon from the iJOth June, 1892, at four and a-half per cent, per aiuunn. (3) An endowment fund of !?10(),00(), for Upper Canada College, with intero.st thereon at four and a-half per cent, per annum, a.s specified in the Act. All which is respectfully submitted. THOMAS HODGINS, University of Touonto, Chairman. 1st March, 18i).i. A.PPENDIX No. 1. -Proceedings of the University Council respecting the security for the loans to Upper Ganada College- Saturday, 18th June, IS-II. The following conununication from His Excellency ihe Lieutenant-Governor was read : — "CiovEKNMKNT HousE, '2nd June, 1831. " Sll{, — 1 am directed l)y the J.iieutenant-Governor to tran.^init to you the annexed copy of a letter to the Commissioner of Crown Lands from whicli the College Council will perceive that all sums accruing from tlie sales of land .set apart as an endowment for Upper Canada College and Royal Grammar School have been ordered by Ids Excellency to Le paid into the hands of the Bur.sar of Kings College till the revenue of Upper Canada College is sufficiently increased to bear the expenses of its present establishments. " 1 have, etc. (Signed) " Z. MUDGE." (Enclosure.) " Government House, 2nd June, 1831. "Sir, — His Majesty's Secretary of State for the Colonies having in his De.spatch avtthorized a township to be set apart as an endowment for Upper Canada College and Royal Grannnar School, I am directed by the Lieutenant- Governor to acquaint you that His Excellency requests that you will take under your charge the blocks of land appropriated in conformit}' to the annexed copy of an Order in Council for this purpose, and that they may be .sold for the benefit of the institution ; and as certain expenses, incurred by the trustees of Upper Canada College, have been defrayed from the funds of King's College, and as advances from time to time will be sanctioned by the College Council till the 6 ft'venuo of Up])or '^'aiiaila CoHpi^o is Mitlicit'iilly iiicn'uscd to licar tlic cunoiit ex|i(Misos (»f tlic ]iri''-i'iit cstnlilisliiiMiit, I am also to di'siic tlial vou uill jiay into the hands of till- liiiisar of Kind's ('(illtj;c tlir anioniit of llic jj rococo Is of the sales of land, eflc'(!ttHl on aocoiint of rppcr Canada ColU'y,'. " I have, t'tc, (.Signed) "Z. MUJ)GE. "The Hon. P. RoiUNsos'. " ('ommissiotn'r of Crofii Lands." Tlie C'ouncil of King's ('(tliege, having deliherated upon the ahovo letters, were Oi opinion that tlic nioie convenient an-angenient wonhl lie tluit the Government should transfer liy I'atent to th" ('iir|)oration of King's ( 'ollege, such portion of tl>e oO.OOO acres which His lixcelleiiey has proposed to direct the Crown Lands Comniissionttr to dispose of for the |'ur})ose of rejdaeing the advance which tlie ("orpoi'ation of King's College hiis made in aid of Upju'r Canada ("ollege, as may lie estimated to lie eijual in viiiue to the delit incurred. And that whatever advance may lie necessai v in futuie veai's, in aid of l'i)i)er Caimda Colleue, will he made hy King's College, to he repaid in like manner liy lands to he taken upon a valuation in each yenr, unless tliese paymisuts can be otherwise .secured. In making this suggestion, however, the College Coun<;il think it proper to add that they have no ohjeetion to offer on the part of King's College to the arrangement first proposetl hy His Excellency, of conveying the endowment of Upper Canada C'oUege to the institiition, the King ln'ing declared trustee by an instrument under the Cheat Seal, and empowering King s College Council to sell the land, until the endowment shall hi' sufficient to .supp )rt the institution after paying the delit due to King's College. It is in reference onl}- to the |)roposition last made by His Excellency the Lie itenant-Covernor, tluit the College' ('ouncil would urge tlie course they have now suggested as more secure and .satisfactory. (Min. Book, vol. 1, pp. 174-6). ThurHdaij, .'."Uh Jidij, J SHI. The following comniunication from His Excellency the Lieutenant-Governor, Sir John Colborne, was read : — " The Lieutenant-Governor with reference to a former conununication on the fcubjectof the lands .set apart for tlie I'pper Canada College and Royal Grammar School, and to the measures pioposed l)y the College Council in their minute of the ]8th June, .suggests the following arrangement should be adopted, viz.: That King's College, in the first instance, shall hold in trust 2(),()()(> acres of tlie lot.s oixlered by His Majesty's Government, to be set ajiart for the support of Upper Canada College, till all sums advanced liy King's College shall have been repaid to that Corporation. That King's College shall have full power to create a revenue for Upper Canada College till all sums advanced by King's College .shall have been repaid to that Corporation. That King's College shall have power to create a revenue for Upper Canada College ; to sell the lands set apart for the supjiort of Upper Canada College ; to tlefraj' from the proceeds of the sale of these lands the current expenses of Upper Canada College, and to replace such sums as have been advanced by King's College, or shall be advanced, on account of the buildings or expen.ses of Upper Canada College. " By adopting this course, King's College Council will become gradually the Trustees of the endowment, and the wihl land tax cannot be demanded for any part of the 66,000 acres. (Signed) " J. C. "GoVERNMKNT Hoi'SE, 2.5th July, IS31." After (It'Iilii'iation, the t'ouncil luloptcd tin- follow inn icsolntioiis : Tliat tli(( Council acoodo.s to tlic nrraiinvnimts siiifncstcil hy His KxoolltMipy tilt' Li«Mitonant-(Jov('i'iioi', coiu'civiiiii' it to Im' tlw^ iiilvntioii of His Kxi'dleiicy, tliat tilt' 2(),()()() acics .s|iokc'ii of arc to lie ^rraiitt'(l iiy patfiit to tin.' Corporation of Kin;;'s ( 'olloj^fc, u|)on tlif trusts nioitioiu'd in HIh Kxet'lloncy's icttor; and tlint with respect to tlie re>iiliio of the (!i!,()(H; ucre-i, th(( (^odetre Council sliali assiuno the a^t'iicy of dispo ine' of it for the iiurposes stateil Ity His Kxeellency, the title to the land remaiidni^, as at present, vested in tlie Crown until patents, from time to time.sliall issue to il :■ Corporation for such tracts as will cover tlie contracts of sale which the Collooe Council shall have entered into, throu<,di the Bursar, in order to enable them to niake deeds to the res])ectivo jiurchasers. The followinj^' connnunication was also read : '• 'i'he l/ieutenant-Covernor ac(iuaiiits the Collej^e Council, that it appears desirahle that the deeds ;)f the land which was set n[)art in this town for the support of a (irainmar School, should he placed in possession of the Council, and that the Archdeacon ol York und Colonid Wells, should he relieved from the personal responsihility which they have incurred, hy borrowing, for the use of Tipper (^iiiada Colle»^e, the sum for which the land in ipiestion was sold." " GovKitNMKN'T Huisi:, :J7th .Inly, is:n.'' The Hoard having- inipiired of the liursar relative to the sales of the school reservation alhuled to, accedeil to the proposition of His Kxeellency ; and u])on receiving a patent for the land which was set apart in this town for the support of a (irammar School, will assunit; the lesponsiliility now held hy the Archdeacon of York and fjieut.-Col. Wells, as suggested liy His Excellency. (Min. Book, vol. 1 pp. 177-180.) Saturdu;/, iGth March, Mli. The following communication from His Excellency was read : — "GovEiiXMKNT House, 9th March, 1833. " Sir, — r am directed by the LieutonantGovernor to state for the information of the Council of King's College, that a deed for 18,000 acres of land has been transmitted to the Secretary' and Registrar of this Province, part of the endowment sanctioned by His Majesty's Government for the support of Upper Canada College. His Excellency considers that the interests of both institutions would be advanced by the remainder of the lands sot apart for tFpper Canada College being disposed of through the agency of King's College Council, and requests to know whether the Council will consent to authorize the lots to be sold by the Bursar ''or the benefit of Upper Canada College. " I have, etc., (Signed) "WM. ROWAN." It was resolved that His Excellency's recommendation, communicated in Lieutenant-Colonel Rowan's lettei' of the 9th instant, " that the remainder of the lands set apart for Upper Cariada College be disposed of through the agency of King's ('ollege Council." be accepted and carried into etf'ect ; and the Bursar is liei'ebv authorized to sell the said lands for the benefit of Upper Canada College. (Min.' Book, vol. 1, p. 192, 4.) APPENDIX No. 2 Extracts from the Letters Patent granting the lands for the endowment of Upper Canada OoUege to the University in truat to secure the leant made to the OolleKe. " WiiKHKAS wo liav;i huretotbio tliouj^liL tit to tliroct that the liinds ami tcne- iiK'iits licieiiiaftcr iiit'iitioiit'd nml (Icsi'ril.'cd vlioiL-nt' wo aic scizod in rij^lit of Our Iloyal Crown, should !iiiioiiH;st other hinds ho sot apart and appropriated tor the support and oniU)wnioMt of Tppor ( 'anada ('olh'<,'o and ll(»yal (Jrannnai' School. And Wmkhkas th*; Chanc-llor, IVosidont. and Solioiar.i of Ivin-'H CoHo''o at York, HI our said I'rovinco of I 'ppor ( 'iinadM, havo, from tinio to tiino, advanced divers lnrrd to a|ipropriiito for tho support of tlio saitl Colloye and Scho,»|, and w(! lioing willmj^' to ratify and cijiilirni the said ayroonient and to secure tho ropayniont of the said sums of money so advanced, or which may I'o horoaftor advuncod a«. afori'said, liavo oonsiMitod to ^'rant to the said Chancellor, President, and Scholars of Kiiij^'s Colloj^o the lands liereinafLer de- scribeii, upon tho trusts liortiinafter mentioned. Now, know yo, that wo of our special };raco, certain knowlod;;o, and mere m(»tion, have oivon and ^ranted, and l»y thost; p osents do i>ive and j^rant unto llio (hancollor, I'resideiit, and Scholars of Kin<,''s Collot,'o at York, in the I'rovinco of Upper Canada, and to tlieir successors forever, all those several parcels oi' tiacts of land situate in our said Province, and containin;f liy admeasurement dosciiliiny; tho lots) * * To have and to liold tho .saiil lands and j)remises unt(j the said Chancellor, President, and Scholars of King's College at 7ork, in the Province of Upper C'anadt aforesaid, and to their successors forever, in trust to sell the same, ai.d apply the piocoods thereof towards the repayment of all sums which havo lioon, or may hereafter lie, advanced hy the {.\)ri)oration of King's College aforesaid, in ai