20. S. R. CLARKE: Contempts, and the Preservation of Order in Colonial Parliaments 30. D. GIROUARD: Les Promesses de Mariage sont-elles 354 358 30. WM. H. KERR: The Bench and Bar of Quebec 40. D. GIROUARD: Of mortgages passed out of the presence 427 50. LA RÉDACTION: La question des registres 430 60. 70. LA RÉDACTION: The Union St. Jacques case REVUE CRITIQUE DE Législation et de Jurisprudence. CONSTITUTIONAL LAW. CHURCH AND STATE. I. IN SPIRITUAL MATTERS. §1. Ecclesiastical law under the French Crown. gi. (Continued from Vol. I., page 456.) Since the publication of the first part of this article, we have examined the supplementary factum of Messrs. Doutre and Laflamme, in the Guibord case. According to the learned advocates, the revocation of the Intendant Dupuy's ordinance of 1728, proves only that he had no power to act without the concurrence of the Governor. Well, admitting that Governor De Beauharnois did not go farther than that, where is the law conferring upon our present courts the combined powers of the Governor and the Intendant? Again, it is quite certain that the Intendant had no jurisdiction in ecclesiastical matters. The royal commissions uniformly say that he is to be judge in all matters civil as well as criminal, and even to be judge, solely and without appeal, in civil matters: "Juger toutes les matières tant civiles que criminelles et même juger seul souverainement en matières civiles." * Much stress is laid on the Edict of Installation of Mgr. de Pontbriand (1741), cited in the first part of this article,† * 3 Ed. et Ord., 34, 39, 42, 46, 50, 56, 60, 62, 64, 66, 70, 75. † Vol. 1, p. 437. VOL. II. A No. 1. by which the King declares that he confirms the Papal bulls granted to that bishop "vu qu'il ne s'y est trouvé aucune chose contraire aux priviléges, franchises et libertés de l'Eglise Gallicane." But this Edict does not say that the liberties of the Gallican Church ever did exist in Canada. The King, as protector of the Church in France, simply declares by these words that he had no intention of making or permitting innovations in the status of that Church. Such a declaration was the more necessary, because the edict was promulgated to confirm the appointment of a bishop, holding not from the Gallican Church, but immediately and directly from the See of Rome. It is further contended that the name of "Catholic, Apostolic and Roman," given to the Church in the official papers of the colony, was a form generally adopted to distinguish it from the reformed churches. But what reason is there for supposing that any confusion could have been caused by the use of the term Gallican or Catholic Church? Was it not thus that the Church in France was universally and invariably designated; although the danger of confounding it with other religious bodies was much greater in the Mother Country than in Canada, where the number of the reformed was extremely small? No, the reason for so designating the Catholic Church in the colonial ordinances and statutes and in the articles of the capitulations and in the Treaty of Paris was a very different one; it was because she depended immediately on the Holy See. The Church of France was indeed a Catholic Church, but her civil status was very different from the status of the same church in the other European countries, and especially in England and Scotland. In France the civil courts took cognizance of appeals in ecclesiastical matters and even in matters purely spiritual, while in England and in Scotland, before the Reformation, those appeals were carried directly to Rome, as they are to-day in Canada. The court of the officiality, at first ignored by the Superior Council, is confidently asserted to have been at a later period recognized by that supreme tribunal. Whether there was or was not an officiality in the French colony is of no consequence, there being none in Canada to-day; for it is well-known that the appel comme d'abus existed in France, because the eccle In most of the dioceses of France, the Rituel de Paris, not the Rituel Romain, was followed. siastical jurisdiction had been created and exercised by the State. No authority can be quoted to show that the civil courts of France possessed or claimed original jurisdiction in ecclesiastical matters, although that jurisdiction is the one claimed for our courts in the name of the French King. What results from the various decisions cited by Messrs. Doutre and Laflamme? Do they prove that the Superior Council of Quebec attempted to review the spiritual judgments of the Bishop or of his official-for, as we have shown in the first part of this article, an officiality, invested with private and voluntary jurisdiction, did exist in Canada, but destitute of the coercive and civil powers which it had in France? In the cause of the Grand Chantre de Merlac, letters of relief, lettres de relief,* and not a writ of appeal, or intimation en appel, were granted from a decision of the bishop by which he disposed of the installation of the canons, and which consequently affected their temporal income or benefices. In the case of Saint Fort, † the matter in dispute was a question of marriage, and the appeal was allowed only on the clause forbidding the said St. Fort to contract marriage. The arrêt of the 10th September, 1714, rendered in the cause of the official Calvarin and Le Boulanger, proves nothing more than that in a suit against a Recollet father, the nature of which is not stated, the Superior Council sent the parties back to the officiality. Like the other judgments in the two cases before cited, it is merely interlocutory and appears to be of the same nature as the judgments of our present courts in the cases of Lussier v. Archambault, and Vaillancourt v. Lafontaine; for it reserves the costs, thus giving it to be understood that the case would again come before the Council.† In the case of the widow Peuvret, § the dispute originated in the violation of a temporal right created by a general regulation or règlement of the Council itself concerning the position of widows' seats in the church. The judgment of the 12th June, 1741, is of the same nature; it forbids the curés to solemnize the marriage of minors without their parents' con * Ed. & Ord., Vol. 2, p. 129-130. The lettres de relief were a remission or grace supposed to be granted by the King in person. (Guyot, vis Relief précis and Grand Bailli). † Ed. & Ord., Vol. 2, p. 160. ‡ Ed. & Ord., Vol. 2, p. 163. 2 Ibid, 193. sent. (Ibid, 204.) The proof sought to be drawn from the rrêts rendered in the matter of the Canon Tonnancourt and th. Curé Récher is no more satisfactory. In that case the matter in dispute had referenee to the division of a parish by the Bishop. Letters of relief were granted on the 30th June, 1750; but on the 16th October following, the appeal was dismissed on the merits, and the canons condemned to a fine of 75 livres and costs, the Council holding that there was no abus. (Ibid, 228-232.) The judgments recorded on pages 58, 63, 154-157 of Vol. 2 of the Edicts and Ordinances, also all relate to the temporalities of the Church. Far from proving the arguments of the learned advocates, they render it certain that no appeal comme d'abus lay from the acts of the ecclesiastical authorities except in civil matters. Thus the ordinance of the Council on page 58 relates to abuses committed by the churchwardens and the curé in the management of the Church property. The decision on page 63 commands M. de Bernières or Messire Dudouyt to file immediately in the office of the Council the titles of their alleged ecclesiastical jurisdiction. The règlement on page 154 has reference to the honors due to the seigneurs in the churches, and declares among other things that "le seigneur aura droit de sépulture dans le choeur, hors du sanctuaire, pour lui et sa famille, lors. qu'il aura donné la terre sur laquelle l'église aura été bâtie-” Upon the representation of the Vicars-General that this regulation was founded neither in right nor in possession, and would be contested by the Bishop, the Council decided that the seigneur and his family could be buried in that part of the Church wherein his pew was placed. Such are the precedents,* drawn from the records of a Court possessing legislative power over a colony having a national church, which have been invoked to prove the existence of the appel comme d'abus in ecclesiastical matters. All these decisions relate to the temporalities of the Church. There is nothing to show that in the greatest number of instances the judgment was a final one; and it seems to us not more logical to deduce from them the conclusion that the appel comme d'abus existed in New France as in the Mother Country, than to infer the ecclesiastical jurisdiction of our Superior Court from the fact of its issuing a writ of mandamus in order to hear the They are also reproduced by Mr. Gonzalve Doutre in a communication published farther on. |