REVUE CRITIQUE

DE

Legislation et de Jurisprudence.

CONSTITUTIONAL LAW.

CHURCH AND STATE.

I. IN SPIRITUAL MATTERS.

§ 2. Ecclesiastical Law under the British Crown.

(Continued from page 32.)

Admitting for argument's sake, the alleged spiritual authority. of the Sovereign over the colonial churches, that authority could not be exercised otherwise than by means of the courts established in the colony. Now, in Canada, the courts established under the British Crown have not and never have had jurisdiction in ecclesiastical matters.

A few months after the ratification of the Treaty of Paris, the Crown by Royal Proclamation, dated the 7th October, 1763, created a provisional government for Canada, with power" to erect and constitute courts of judicature and public justice within our said colonies, for the hearing and determining all causes as well criminal as civil, according to law and equity, and, as near as may be, agreeable to the laws of England, with liberty to all persons who may think themselves aggrieved by the sentence of such courts, in all civil cases, to appeal, under the usual limitations and restrictions, to us, in our Privy Council." This royal commission does not contain a syllable concerning ecclesiastical matters, and the jurisdiction of the courts both in original suits and in appeal to the Privy Council was evidently confined to civil and criminal causes. It may perhaps be objected that this proclamation was unconstitutional, that the Crown had no right to VOL II. No. 2.

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change the established institutions and laws of a ceded and settled colony without the sanction of the Imperial Parliament. That is indeed the case; but the proclamation proves, nevertheless, that His Majesty had no intention of exercising ecclesiastical supremacy in Canada.

The next act of the legislative authority relating to the courts of justice in Canada is the Quebec Act. Mr. Justice Badgley, in the Guibord case, referred to it in the following terms:

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"Whatever the treaty of that year, or the proclamation of the same year, or the capitulations of Montreal and Quebec may aver, the Imperial Act of 1774, surely removed all possible difficulty upon that score, having declared by s. 4, 'that the inhabitants at the conquest,' (not the cession), professed the religion of the Church of Rome, and enjoyed an established form of constitution and system of laws, by which their persons and property had been protected, governed and ordered for a long series of years from the first establishment of the Province of Quebec, &c.,' and again afterwards, by the 8th section, that all His Majesty's Canadian subjects may hold and enjoy their property and possessions, together with all their customs and usages relative thereto, and all other their civil rights, in as large, ample and beneficial manner, as if the proclamation, &c., had not been made, and as may consist with their allegiance to His Majesty and subjection to the Crown and Parliament of Great Britain; and that in all matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada, as the rule for the decision of the same; and all causes that shall hereafter be instituted in any of the courts of justice, to be appointed within and for the said province by His Majesty, shall, with respect to such property and rights, be determined agreeably to the said laws and customs of Canada, until varied or altered, &c.' I presume it would be, therefore, no difficult thing to ascertain and fix the jurisdiction of our courts in matters of ecclesiastical abus, the more so as the Court of King's Bench has been more than once declared to have inherited all the superior jurisdictional powers of the highest jurisdictions and courts in Canada previous to the conquest. necessity for such an examination does not present itself in this cause."

The

It is evident that in the opinion of the learned judge international treaties are not of much legal weight. There is no reason to fear, however, that Canada will be considered a conquered

instead of a ceded country, because the word conquest happens to be met with in a statute, or that the argument "whatever the

treaty, &c., may aver," will convince any person that any legis lature can validly violate the pledged faith of nations, regarded as sacred by the universal sentiment of mankind in every age of history.

And is section 8 of the Quebec Act, lauded by the honorable Judge as "having removed all possible difficulty upon that score," contrary to the stipulations of the Treaty of Paris? No, not in the least; it expressly confirms the Treaty, inasmuch as it enacts that the inhabitants of Canada may hold and enjoy their property and all other their civil rights, and that in matters in controversy relative to property and civil rights, resort shall be had, &c. and that all causes instituted with respect to such property and rights shall be determined," &c. How can the words civil rights be reconciled with the transmission of the ecclesiastical law of La Nouvelle France or l'appel comme d'abus, into the British province by virtue of the above-mentioned clause of the Quebec Act? No doubt, the ecclesiastical law before the cession respecting temporal matters, was included in that section as forming part of the civil rights, but not spiritual or ecclesiastical rights properly

Chief Justice Draper of Ontario lately remarked in the Provincial Anglican Synod that this colony had been obtained by conquest and not by cession. The learned judge added, however: "The conquest was ratified by a subsequent treaty conveying to the inhabitants confirmation of the rights which had been secured to them by the articles of the capitulation." Before the definitive treaty of 1763, the country was occupied conditionally by the British troops; the fortresses of Quebec and Montreal were not taken by assault, but capitulated on terms which show in the clearest manner that the fate of Canada was to be decided by the Treaty of Peace,-See articles 5 and 6 of the capitulation of Quebec, and articles 9, 13 and 30 of the capitulation of Montreal,—and the Treaty far from recognizing the conquest, makes a cession of the colony subject to certain charges. For syth (Constitutional Law, p. 26) also affirms that Canada was acquired by cession. The word conquest, used in a legal or historical sense, is a very incorrect one, and the use of the expression should therefore be discountenanced, as was lately done by the honorable Mr. Justice Mondelet, who peremptorily stopped a counsel who had made use of it, with this remark: "Ne pensez-vous pas qu'il vaudrait mieux ne pas se servir de ce mot de conquête en parlant de la cession du pays par la France à l'Angleterre ? On ne peut pas dire que nous avons été conquis; ça été une cession honorable et non pas une conquête."

so called, which had never constituted part of those civil rights, or the laws or customs relating thereto.

The remark may perhaps be made, that the appel comme d'abus, or ecclesiastical jurisdiction in France, and in La Nouvelle France supposing it existed there, appertained as a matter of right to the civil tribunals and formed a part of their ordinary civil jurisdiction. We have already had occasion to remark that the French parliaments exercised jurisdiction in ecclesiastical causes for the sole and simple reason that the King of France was a catholic prince, the eldest son of the church, and the protector of the church canons, in fact, evêque extérieur, as d'Agnesseau says*; that this jurisdiction was by no means suitable to the young colony of La Nouvelle France, situated beyond seas, and so to speak in a very different political and social atmosphere.

But why go back so far to show that within the meaning of the Quebec Act, the expression civil rights does not comprise ecclesiastical or spiritual rights? The distinction is clearly laid down in section 17: "Nothing in this Act contained shall extend or be construed to extend to prevent or hinder His Majesty, by his Letters Patent under the Great Seal of Great Britain, from erecting, constituting such courts of criminal, civil and ecclesiastical jurisdiction within and for the said Province of Quebec, as His Majesty shall think necessary and proper for the circumstances of the said Province." The words civil rights, therefore, did not include ecclesiastical matters within the meaning of the above sections of the Quebec Act.

Let us now see whether this civil, criminal and ecclesiastical jurisdiction has been given to the courts of justice established in the Province of Quebec.

The Court of Common Pleas, which was the first court established (1777) under the authority of the Quebec Act, had "full power, jurisdiction and authority to hear and determine all matters of controversy relating to property and civil rights according to the rules prescribed by the said statute, and such ordinances as might hereafter be passed by the Governor and legislative council."

In the case of Ferland and Deguise, 1789, the Court of Appeals decided in the most formal terms that the Court of Common Pleas had no ecclesiastical jurisdiction, not even for assessments and répartitions upon the parishioners for the construction and

* Œuvres, vol. 1, p. 235, 5th Réquisitoire.

repair of churches,-assessments which were imposed under the French Government by the Intendant as a civil impost.

It was in order to create a remedy for this state of things that, when the Court of King's Bench was substituted for the Court of Common Pleas in 1793, the provincial legislature gave it the same jurisdiction that the Intendant had exercised over the temporalities of the Catholic Church. Section 2* says that "the said Court of King's Bench shall have original jurisdiction to take cognizance of, hear, try and determine all causes, as well civil as criminal." Section 8 adds: "And the said Court of King's Bench shall have full power and jurisdiction, and be competent to hear and determine all plaints, suits and demands of what nature soever, which might have been heard and determined in the courts of prévôté, justice royale, intendant, or superior council, under the government of the Province, prior to the year 1759, touching rights, remedies and actions of a civil nature." With respect to the terms of the said Court at Three-Rivers, section 11 enacts that the judges thereof "shall have original jurisdiction, take cognizance of, hear, try and determine all civil suits and actions." Section 23, which creates the provisional. Court of Appeals, declares that the judges of the said court "shall be constituted a superior court of civil jurisdiction, and shall take recognizance of, try and determine all cases, matters and things appealed from all civil jurisdictions and courts wherein an appeal by law is allowed." Section 27 provides that "an appeal shall lie to the Court of Appeals from every judgment which may be given in the civil superior terms of the said Courts of King's Bench, in all cases where, &c." Finally, section 43 declares that "nothing herein contained shall be construed in any manner to derogate from the rights of the crown to erect, constitute and appoint courts of civil or criminal jurisdiction within the Province."

In 1849, the present Superior Court was constituted in lieu and stead of the Court of King's Bench, with all the powers and attributes of the latter, but no more. The Consolidated Statutes for Lower Canada, c. 78, sect. 2, declares: The Superior Court has original civil jurisdiction throughout Lower Canada, with full power and authority to take cognizance of, hear, try and determine in the first instance and in due course of law, all civil pleas, causes and matters whatsoever."

* 34 Geo. III, ch. 6.