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A BENEFICED CLERK V. LEE. Appeal from a judgment of the Con- sent purpose are as follows : " If a clergysistory Court of the Diocese of London. man ... is alleged to have been guilty The facts and arguments sufficiently ap- of any immoral act, immoral conduct, or pear in the judgment of the Board. The immoral habit, or of any offence against respondent appeared in his official capacity the laws ecclesiastical, being an offence as secretary to the Bishop of London. against morality and not being a question

of doctrine or ritual,” he may be proseH. C. Richards and Soper, for the ap- cuted by the persons and in the manner pellant.

by the Act prescribed. Sir W. Phillimore and Arnold Statham, The first question which their Lordships for the respondent.

have to consider is whether the offence of

simony, committed by a clerk in order to THE LORD CHANCELLOR (LORD Hals- gain admission to a benefice, is "an imBURY) delivered the judgment of their moral act,” “immoral conduct,” or “an Lordships :

offence against the laws ecclesiastical, being This is an appeal from a judgment of an offence against morality,” within the the learned Chancellor of the Diocese of meaning of the above-quoted section of London, and the only question for their the Act. Lordships' determination is whether the Several of the propositions appearing in Chancellor had jurisdiction in the suit. the judgment of the learned Judge in the The proceeding in question was under the Court below, and urged in argument beClergy Discipline Act, 1892, and the clerk fore their Lordships, appear to be beyond in holy orders, who is now the appellant, dispute. There is no doubt that the was charged by the prosecutors with of General Councils, whose authority is acfences which may be shortly stated as cepted by the Church of England, Acts of follows: First, that he was guilty of Parliament, the Canons of 1603, Judges, simony in relation to his presentation and and writers of recognised position, have, institution to a certain benefice; and, in all ages, condemned simony in emphatic secondly, that he knowingly made a false terms, and have applied to it language declaration against simony under the not inappropriate to describe moral delinClerical Subscription Act, 1865, previous quency. Nor can it well be disputed that to his admission to the said benefice. the offence of simony not only in its

The learned Chancellor has in his judg- original significance of the purchase of ment referred to many of the facts and spiritual authority, but in some instances circumstances connected with the case. of the later, and more frequent, applicaBut none of these facts or circumstances tion of the term to abuse of patronage, have yet been made the subject of proof, deserves, reprobation, though it may be and their Lordships do not consider it that the somewhat nice distinctions benecessary to consider whether the charges tween the legal and illegal exercise of are well or ill founded. The question be- patronage introduced into our law, have, fore them is in the nature of a plea to the to a certain extent, blunted the edge of jurisdiction, and for the purpose and the moral censure on simony as an offence. purpose only of considering this question But what their Lordships have to conthey will assume that the charges can be sider is whether the offence of simony substantiated.

falls within the language of the section Before the passing of the Clergy Dis- above quoted. cipline Act, 1892, every offence committed Their Lordships think that this quesby a clerk in holy orders against the laws tion should be looked at broadly. The ecclesiastical was punishable only under

term “immoral,” except in the way prethe Church Discipline Act, 1840. The sently to be mentioned, has not in the Act of 1892 withdrew from the cognisance Act of 1892 any description or definition, of the Act of 1840 a certain class of of- nor is it a term carrying with it any prefences, and the 2nd section of the Act of cise legal significance. But it cannot, 1892 defines what that class is. The their Lordships think, be doubted that material words of the section for the pre- the object of the Act of 1892 was to

A BENEFICED CLERK v. LEE, provide a more ready and economical mode the statement, and in every sense of the than that afforded by the Act of 1840 for term, an immoral act. But it is a differpunishing those offences which do not ent question whether the declaration depend on disputable points of law, or on against simony made by a clerk under the inatters so highly controversial as doc- Clerical Subscription Act, 1865, can be trine and ritual, but which, in the con- isolated from the charge of simony, and sensus of general opinion, are acts of brought within the provisions of the Act personal immorality, such as various

as various of 1892. Their Lordships think that this forms of vice or dishonesty or other like was not the intention of the Act. It is conduct, of evil example generally, and obvious that, were it otherwise, in every especially so if committed by a person case in which a false declaration as to invested with sacred functions. Their simony is charged, it would be necessary Lordships do not think that simony can to begin by determining whether simony fairly be considered as falling within this in fact had been committed, and thus an category, and their view is confirmed by offence would be tried indirectly which observing the definition, or rather perhaps cannot be directly tried. extension, given to the term “immoral? Their Lordships would further observe by the Act.

that the solemn declarations to be made It is provided in section 12 of the Act by clergymen are not confined to the of 1892, that “the expressions immoral commission of simony. The 36th canon act,' 'immoral conduct,' and 'immoral requires a promise to be made, at ordinahabit,' shall include such acts, conduct, tion and institution, that the clergyman and habits as are proscribed by the 75th will use the form prescribed in the Book and 109th canons issued by the Convoca- of Common Prayer and no other, and the tion of the Province of Canterbury in the Ecclesiastical Courts have more than once year 1603."

referred to a violation of this promise as The language of these canons denounces aggravating the offence of clergymen the offences which the 109th canon sums found guilty of what are known as ritual up as

“uncleanness and wickedness of offences-see Sanders v. Head [1843]" life,” but it goes further and condemns and Combe v. De la Bere (1881]. But if it acts and conduct hardly to be considered be permissible to separate the charge of immoral, but certainly dangerous to the violating this promise from that of the reputation or unworthy of the character commission of a ritual offence, and to proof ministers of religion. It appears to ceed against a clergyman under the Act their Lordships that in thus applying and of 1892 for the violation of such promise, extending the use of the term “immoral” it is obvious that the Act would be used the Act shows that the intention was to in a manner contrary to its expressed confine its scope to offences of the kind intention. referred to in these canons. It is also to Their Lordships are, therefore, of be remarked that no reference is made to opinion that the judgment of the Court that one of the canons which deals with below ought to be reversed, and the comsimony.

plaint against the appellant dismissed, Their Lordships think, therefore, that and they will humbly advise her Majesty in order to punish the offence of simony accordingly. The respondent will pay in a clerk, resort cannot be had to the the costs of the appellant of the appeal, provisions of the Act of 1892, but that and in the Court below. proceedings must still be taken under the Act of 1840. There remains the charge of knowingly

Solicitors-W. Carpenter & Sons, for appellant;

Houseman & Co., for respondent, making a false declaration under the

[Reported by J. Eyre Thompson, Esq., Clerical Subscription Act, 1865.

Barrister-at-Lan. Their Lordships do not desire to indicate any doubt that a false statement made knowingly in order to gain some

(1) 3 Curt. 565. benefit, is, whatever the subject matter of

(2) 6 P. D. 157.





to pay

Colonial statutes which purport to give DOMINION OF CANADA (appel- an appeal" to the Privy Council of Eng

lant) v. ATTORNEY-GENERAL FOR land, in case their Lordships are pleased to 1896. THE PROVINCE OF ONTARIO (re- entertain the appeal,are ultra vires, and Nov. 11. spondent); ATTORNEY-GENERAL ignore the constitutional rule that an appeal Dec. 9. FOR THE PROVINCE OF QUEBEC lies to her Majesty and not to the Judicial (appellant) v. ATTORNEY-GENE- Committee, who are merely the Queen's

advisers, upon whom no jurisdiction can be TARIO (respondent).*

conferred by any Colonial Legislature. Canada-Treaties with the Ojibeway Indians, 1850—C'ession of Indian Reserves

Appeal from a judgment of the Supreme in consideration of Annuities---Annuities,

Court of Canada dated December 9, 1895. how Chargeable-The Dominion and the

The questions involved turned upon Separate ProvincesBritish North Ame

the construction of two Indian treaties rica Act, 1867, ss. 109, 111, 112, and 142

and upon certain sections of the British Appeal-Colonial Statutes.

North America Act, 1867.

In 1850 the Government of the proIn 1850 the Governor of the old province vince of Canada, acting through the Honof Canada entered into treaties with the ourable William Benjamin Robinson, Ojibeway Indians for the payment by her entered into two treaties with the prinMajesty, in consideration of the cession cipal men of the Ojibeway Indians inhaof territory, of certain annuities, which

biting and claiming lands on the eastern annuities were to be increased in the

and northern shores of Lake Huron and event, which subsequently happened, of the

on the northern shore of Lake Superior, territory's producing such an amount as would enable the Government of the province and other considerations therein expressed

whereby the Indians for certain annuities such increase.

surrendered their title to the Crown of By the British North America Act, 1867,

and in large tracts of land within the the old province of Canada was divided boundaries of the late province of Canada. into the two provinces of Ontario and Que- These treaties are designated “The bec. The ceded territory was exclusively

Lake Huron Treaty” and “The Lake in Ontario. By section 109 all lands &c.

Superior Treaty," and are alike in their belonging to each of the several provinces

terms except as to amount.

With reat the union, were still to belong to it,

spect to these fixed annuities no question "subject to any trusts existing in respect arose, they having been capitalised at the thereof and to any interest other than that

sum of $88,000 at the time of confederaof the province in the same." The

tion, and added to the debt of the prooriginal annuities had been capitalised and

vince of Canada, by which the Dominion added to the debts and liabilities assumed

had been enabled to pay and had paid by the Dominion :

such annuities from the income of such Held, in afirmance of the decision of capitalisation. the Supreme Court of Canada, that under

In addition to the said fixed annuities, the treaties the Indians obtained no right

each of the Indian treaties contained the to their annuities, whether original or

following provision, under which additional augmented, beyond the personal obligation

or increased annuities might, under cerof the Governor of the old province; that

tain circumstances, become payable to the they had no interest in the territory "other Indians : “ The said William Benjamin than that of the province," and that no

Robinson, on behalf of her Majesty, who duty was imposed on the province to apply desires to deal liberally and justly with all the revenue of the surrendered lands in

her subjects, further promises and agrees payment of the annuities which by section

that should the territory hereby ceded by 111 of the British North America Act

the parties of the second part at any became chargeable on the Dominion,

future period produce such an amount as * Coram, Lord Watson, Lord Hobhouse, Lord

will enable the Government of this proMorris, and Sir Richard Couch.

vince, without incurring loss, to increase

ATTORNEY-GENERAL OF CANADA v. ATTORNEY-GENERAL OF ONTARIO. the annuity hereby secured to them, then, By section 142 : " The division and and in that case, the same shall be aug- adjustment of the debts, credits, liabilimented from time to time, provided the ties, properties, and assets of Upper amount paid to each individual shall not Canada and Lower Canada shall be reexceed the sum of one pound provincial ferred to the arbitrament of three arbicurrency

in any one year, or such further trators, one chosen by the Government of sum as her Majesty may be graciously Ontario, one by the Government of Que pleased to order; and provided further bec, and one by the Government of that the number of Indians entitled to Canada ; and the selection of the arbithe benefit of this treaty shall amount to trators shall not be made until the Parliatwo-thirds of their present number, ment of Canada and the Legislatures of which is fourteen hundred and twenty- Ontario and Quebec have met; and the two, to entitle them to claim the full arbitrator chosen by the Government of benefit thereof; and should they not at Canada shall not be a resident either in any future period amount to two-thirds of Ontario or in Quebec.” fourteen hundred and twenty-two, then The 13th section of the award, dated the said annuity shall be diminished in September 3, 1870, and made under secproportion to their actual numbers." tion 142, is as follows:

These annuities were subsequently in- " That all the lands in either of the said creased.

provinces of Ontario and Quebec respecBy the British North America Act, tively, surrendered by the Indians in con1867, a union of the provinces of Canada, sideration of annuities to them granted, Nova Scotia, and New Brunswick was which said annuities are included in the effected, in which union the province of debt of the late province of Canada, shall Canada was divided into two distinct be the absolute property of the province provinces of Ontario and Quebec. The in which the said lands are respectively surrendered lands were all situated in situate, free from any further claim upon Ontario.

or charge to the said province in which By section 91, sub-section 24 of that they are so situate, by the other of the said Act, the Parliament of the Dominion is provinces." given legislative authority over “ Indians, In 1891 the Parliament of the Domiand lands reserved for Indians."

nion passed a statute (54 & 55 Vict. By section 109: “All lands, mines, c. 6), and the Legislatures of Ontario and minerals, and royalties belonging to the Quebec passed similar statutes (54 Vict. several provinces of Canada, Nova Scotia, c. 2 and 54 Vict. c. 4 respectively), having and New Brunswick at the union, and for their object the final and conclusive all sums then due or payable for such settlement and determination of the lands, mines, minerals, or royalties, shall accounts between the Dominion and the belong to the several provinces of Ontario, said two provinces. Quebec, Nova Scotia, and New Bruns- Under the provisions of these statutes wick in which the same are situate, or the said Government duly passed Orders arise subject to any trusts existing in in Council whereby the Honourable John respect thereof, and to any interest other Alexander Boyd, Chancellor of the prothan that of the province in the same.” vince of Ontario, the Honourable George

By section 111: “ Canada shall be Wheelock Burbidge, Judge of the Excheliable for the debts and liabilities of each quer Court of Canada, and the Honourprovince existing at the union."

able Sir Louis Napoleon Casault, Chief By section 112: "Ontario and Quebec Justice of the Superior Court of the proconjointly shall be liable to Canada for vince of Quebec, were appointed to act as the amount (if any) by which the debt of arbitrators in the matter of the disputed the province of Canada exceeds at the accounts. union sixty-two millions five hundred The 6th section of the said statutes of thousand dollars, and shall be charged 1891 is as follows: with interest at the rate of five per " The arbitrators shall not be bound to centum per annum thereon."

decide according to the strict rules of law ATTORNEY-GENERAL OF CANADA V. ATTORNEY-GENERAL OF ONTARIO. or evidence, but may decide upon equita- in the province of Ontario account, as of ble principles, and when they do proceed the date of payment to the Indians, and on their view of a disputed question of so fall within and be affected by our law, the award shall set forth the same at previous ruling as to interest on that the instance of either or any party. Any account.” award made under this Act shall be, in so The province of Ontario then appealed far as it relates to disputed questions of to the Supreme Court of Canada, limiting law, subject to appeal to the Supreme the appeal to the findings of the Court of Canada and thence to the Judi- arbitrators set out in the 6th and 9th cial Committee of her Majesty's Privy paragraphs of the award. On May 15 Council, in case their Lordships are pleased and 16, 1895, the appeal was argued to allow such appeal.'

before a quorum of that Court, composed The present appeal arose upon a claim of the Chief Justice, Sir Henry Strong, presented to the arbitrators by the Domi- and Justices Taschereau, Gwynne, Sedgenion on behalf of the said Ojibeway In- wick, and King. On December 9, 1895, dians, against the province of Ontario the Court delivered judgment. The for $95,200.00, being unpaid arrears of Chief Justice and Justices Taschereau augmented annuities from 1867 to 1873, and Sedgewick held that the appeal of and against the province of Ontario for Ontario should be allowed, while Justices $389,106.80, being the amount of in- Gwynne and King held that the appeal creased annuities actually paid by the should be dismissed. In the result, Dominion to the Indians from 1874 to judgment was directed to be entered 1892.

allowing the appeal and ordering the The arbitrators, on February 13, 1895, award to be varied by substituting for the made their unanimous award, which, in 6th paragraph thereof the following: so far as it relates to the matters at “The ceded territory mentioned became present in question, is as follows:

the property of Ontario under the 109th “6. That the ceded territory mentioned section of the British North America Act, became the property of Ontario under 1867, absolutely, and free from any trust, the 109th section of the British North charge, or lien in respect of any of the America Act, 1867, subject to a trust to annuities, as well those presently paypay the increased annuities the able as those deferred and agreed to be happening, after the union, of the event paid in augmentation of the original on which such payment depended, and to annuities, upon the condition in the the interest of the Indians therein to be treaties mentioned. so paid. That the ultimate burden of “And further by striking out the 7th making provision for the payment of the and 9th paragraphs of the award.” increased annuities in question in such an event falls upon the province of Ontario, Cohen, Q.C., and Loehnis, for the Atand that this burden has not been in any torney-General for the Dominion of way affected or discharged.

Canada; and Angers, Q.C., and Hall, Q.C. 7. That interest is not recoverable on (both of the Canadian Bar), for the the arrears of such annuities accruing Attorney-General of the province of after the union, and not paid by the Quebec.—The covenant to pay increased Dominion to the tribes of Indians annuities is not a covenant to pay out of entitled.

general revenue, but by necessary im"8. That in respect of the matters plication from the expressed condition of herein before dealt with, the arbitrators its payment, to pay out of the proceeds of have proceeded upon their view of a the land. There was, in fact, à trust for disputed question of law.

the Indians within the meaning of sec“9. That as respects the increased tion 109 of the British North America annuities which have been paid by the Act, which does not contemplate only a Dominion to the Indians since the union, strictly legal charge or lien, but includes any payments properly made are to be interests created by the Crown. The charged against the province of Ontario lands having become the property of


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