p. 1112 C
THE CLAUSE CONCERNING RELIGION IN THE THIRD DRAUGHT.¹
The Proviso in favour of the Protestant Subjects of Quebec, if it is intended to operate only as a saving to the clause which gives to the Canadians the free exercise of their Religion appears to me to be unnecessary—from a Church merely tolerated, as the Romish Church is by this Act, There can be little occasion to resort to any special protection, immunity or Privilege in behalf of any body, for existing only by Permission of the state, it can claim nothing, enforce nothing, exercise no controul or Authority over its own members but by consent, & it should seem useless to reserve to others by express Provision of Law, what cannot be taken from them but by their own choice & approbation.
In this light therefore the clause seems to be unnecessary.
But if it is intended to operate as a saving to the clause immediately preceding which gives the Canadians the Enjoyment of their ancient civil Rights customs and Usages, I apprehend it will be found an Exception as large as the Rule; and leave it still in doubt, whether in a matter of civil Right the Canadian or English Law where they differ together with the form & mode of Proceeding, shall have the Preference. A Case which came before me in Judgement, & which is very likely to happen again will possibly put the objection I mean to state in a clear light before your Lordship.
By the custom of Paris which your Lordship, I presume, means to restore, the Mason Carpenter & other Artificers employed in building a House for another, Have, by an implied Contract between them & the owner for whom they build, of which they need only make a minute in a Notary's Office a mortgage upon the house which no incumbrance whatever prior or subsequent can Affect, but they may follow their demand thro an hundred mesne assignments into the hands of the present Possessor, & insist upon its being sold to pay them upon failure of the Person with whom they first contracted to build. should those Canadian Artificers bring an action in their usual form (wholly different from our own) against an Englishman who had purchased such a house for a Valuable consideration, might not He, & would not He be authorized to say, I will not answer in this mode of Process nor be bound by this Law?
¹ Canadian Archives, Dartmouth Papers, M 385, p. 340. It appears very probable, from the reference in the second paragraph, as well as from the whole tone and purpose of the proposals, that these criticisms were made by Lord Mansfield, and this is confirmed by his letter to Lord Dartmouth; see note 1 to Lord Hillsborough's Objections to the Quebec Bill, &c., post.
Every Privilege Protection & advantage of what Nature soever or kind that I am intitled to by the Laws & Constitution of the Realm of England, are expressly reserved to me, amongst which I reckon the Tryal by a Jury as an Eminent one. Let these men bring their Ejectment upon their mortgage Title & let the tresspass be enquired into by a Jury according to the good old forms & usages of the Realm of England, & not by Laws & in a mode of Proceeding unknown & not used there & which derogate from the Rights of a british subject.
What answer could' be given to a demand of this kind which would not militate either with the Law or the Exception & who would say which was intitled to the Preference?
And with submission to your, Lordship I do not see how it is possible to alter the Provisional clause to any advantage or find any f orm of words to reconcile it in substance with the other.
Whatever is to operate as an Exception to a positive general Law ought I apprehend to be clearly & expressly pointed out. it is your Lordships Intention (I presume) to revive the whole canadian Law in matters of a civil Nature, to make it the general law of the country to govern british as well as canadian Property by its Rules, if your Lordship intends any reservation with respect either to the Laws or the Administration of them, in favour of the british subjects, it must, I apprehend be clearly ascertained where & in what instances it should take Place. a General reservation like that contained in the clause will either operate nothing, or go to the destruction of the whole. for if the Legislature does not draw the Line I know not well how any Judge can do it.
The Legislative Council cannot do it. They cannot restrain or define privileges reserved by the Act of Parlt. nor as I should conceive even explain or determine them.
With great submission therefore to your Lordships better Judgment I conceive that clause must be wholly struck out or more particularly explained.
Will your Lordship permit me to add a word or two upon the subject of Religion as it is affected by this Act of Parliamt.
That your Lordship intends only a bare Toleration for the R. C. Religion without any maintenance or support for the Clergy appears obvious from the manner of penning the statute.
The Clause which mentions & allows the Exercise of Religion is totally silent with respect to the Clergy or any right belonging to them & the cautious use of the words civil Rights in the clause that restores them to their old Laws & customs, seems to distinguish & exclude Ecclesiastical ones.
But will your Lordship (upon reflection) think it sufficient barely to tolerate a large & powerful Body of Men the R. C. Clergy in Canada, in the exercise of their Religion, without any other means of support than what is to arise from the Voluntary contribution of their Parishioners, or does your Lordship apprehend any mischief or great inconvenience would arise from acknowledging their right to a decent & moderate maintenance under the sanction of a british Act of Parliament.
To say nothing of the discontent it would occasion will your Lordship think it quite consistent with the terms of the treaty—under which the property of the Clergy as well as Laity seems to have been reserved to the owners—& the Right to a decent support by Tithes seems to be as much the Property of the Clergy, as the seigneurial lands of the seigneurs, or any lay Property whatsoever of a Layman.
Power & Authority neither belongs to them by treaty nor is it consistent with a Protestt Govt. to suffer them to be retained—but subsistence seems to be their right, & under this Idea, I have taken the Liberty to make an additional clause, reserving the Tithe of Protestants for a Protestant clergy when his Majesty shall think proper to intitle any to demand it.¹
For the manner in which the whole of what your Lordship gave me when I had the Honour to be with you on Saturday will then stand I refer your Lordship to the Paper itself
¹ This is evidently the clause which has been incorporated into the third draught of the bill and which makes provision for the collection of tithes by the Roman Catholic clergy, and reserves the right to provide for a protestant clergy as well. On April 28th the following note was sent from Lord Mansfield to Lord Dartmouth:— “My Lord I recd the enclosed Drt last night at 10 o'clock— I have read it over. * * * * * * * * * * * * I would suggest two alterations upon the Plan as it stands—One, which I have just put into the Drt in a piece of Paper relative to the Supremacy— I mean it to avoid, what Ld North & yr Lod seemed very desirous of avoiding the necessity of the Canadian Gentlemen taking the Oath of Supremacy. The other relates to the Right of Tithes &ce depending upon the Man's professing the Popish Religion. Any man who denies professing it will be excused. They should pay to the Priest till the time is ripe for their paying to the Minister of some other Religion. * * * * * Your Lops most obt hu. Servt., Mansfield.” M 384, p. 268. To this
Lord Dartmouth made the following reply
“Ld Mansfield 1 May 1774
“I have laid before his Majesty's Confidential Servants the alteration your Lordps has been so good to suggest in the Quebec Bill, & they were unanimously of opinion to adopt the first relative to Supremacy. The other they thought unnecessary, because it is his Majesty's Intention to make immediate provision for a Protestant Clergy, from the tithes of the Estates of Protestants so that none can elude the payment by denying the Profession of the Popish Religion. Their Lordps thought fit to alter the stile of the clause wch enacts the free exercise of the Romish Religion to make it declaritory—this, we conceive, will obviate any doubts that might have been created by it, & prevent any ill consequences, it might be thought likely to have in other parts of his Majesty's Dominions. With these alteration I hope the Bill will have your Lordps approbation. I have the Honour to be &ce D.” M 385, p. 278. The suggestion with reference to the oath of supremacy which Lord Mansfield had enclosed, is preserved in the Dartmouth Papers, endorsed “Clause (A),” M 385, p. 329. This was introduced as it stands into the Quebec Bill while going through Parliament, and provides a special oath for the Roman Catholics, instead of that of the 1st of Queen Elizabeth.