whole Catholic world, except in France, as remarked by Merlin, Vo. Libertés de l'Eglise Gallicane. In 1844, the Right Hon. Duncan McNeil, then Lord Advocate and afterwards Lord Justice General of Scotland, said in his evidence taken before a select Committee of the House of Lords appointed to consider Lord Brougham's Bill to amend the jurisdiction of the Judicial Committee of the Privy Council: (Question 8)" The Committee understand that previously to the late changes that have taken place in the Scotch Courts, there was, as here, a consistorial or spiritual Court which had cognizance of questions of Divorce?" Answer: "There was a Consistorial Court which had cognizance of questions of Divorce." Q. 9. "To the exclusion of the common temporal court, the Court of Session in the first instance?" A. "Yes." Q. 10. "Was there an appeal from the Consistorial Court to the Court of Session." A. "There was." Q. 13: "Before the Reformation, that Consistory Court was the Bishop's Court? A. "Yes; the law in that department was administered by the tribunals of the Church." Q. 14: "Before the Reformation, was there any appeal to the Court of Session in those cases?" A. "No, I believe not." Such were the principles which governed England and Scotland before the establishment of the national churches. Does the reader wish to know why these principles were adopted in the Colony of Canada instead of those which had been proclaimed by the Statutes of Henry VIII and Elizabeth? The reason is very simple; they were more suitable to the colonies in general, and particularly to Canada, where the free exercise of the Catholic religion was garanteed by the Treaty of Cession of 1763. Lord Mansfield speaking of a colony acquired by occupancy or settlement-and his remarks apply equally to those who pretended that the wholy body of English public law passed into colonies acquired by cession, like Canada-said: "It is absurd that in the colonies they should carry all the laws of England with them. They carry such only as are applicable to their situation. I remember it has been so determined in the Council. There was a question whether the Statute of charitable uses operated on the Island of Nevis. It was determined it did not. No laws but such as were applicable to their condition, unless expressly enacted.”* Even in the case of a colony discovered or * Campbell v. Hall, 20 Howell, State Trials 289; see also Stokes, Law of Colonies, 4; 1 Chal. Opin. 195, 198, 220, and 2 Ibid 202; 1 Chitty on Commerce, 639. settled by British subjects, Clarke, says: "They carry only so much of these laws as is applicable to the condition of an infant colony... For the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary, nor convenient for them, and therefore not in force." How can it be pretended that the Statutes of England were suitable to the inhabitants of Canada, either to the thousands, subjects of His Christian Majesty, professing the faith of the Catholic Church, or to the few British settlers, (who in 1770 numbered no more than 160 inhabitants besides women and children) belonging to various protestant religions, and consequently incapable of receiving and maintaining the English national Church? We have alluded to the treaty by which Canada was made an English Colony, and we may here seize the occasion to lay before the reader the text of this document. But it may not be amiss first to ascertain the effects of such international agreements. Bowyer says: "The articles of capitulation upon which a country is surrendered, and the treaty of peace or of cession by which it is ceded, are sacred and inviolable according to their true intent and meaning." Forsyth says: "The same rule of English law as to the power of the Crown to impose law, applies equally to a country obtained by cession, except that, of course, the right of legislation may be regulated by the terms of the treaty with the ceding power; and those terms ought to be invariably observed. Thus, in Re Adam P. C. 470, the Court said: "The Mauritius, before its surrender to Great Britain, in 1810, was a French Colony, and having been surrendered on the condition that the inhabitants should preserve their religious laws and customs, we must look to the law of France as established in the colony before that event." "It is well settled," said Mr. Justice Smith, in Stuart v. Bowman, "that the King cannot violate any articles of capitulation, which have been assented to in favor of the conquered, and that these articles are sacred."§ Mr. Justice Aylwin said in the same case:-" Nor can the King legally disregard or violate the articles on which the country * Colonial law, p. 8. † Const. Law, p. 45. is surrendered or ceded; but such articles are sacred and inviolable according to their true intent and meaning." Article 6 of the capitulation of Quebec is as follows: "That the exercise of the Catholic, Apostolic and Roman religion shall be maintained; and that safe guards shall be granted to the houses of the clergy, and to the monasteries, particularly to his Lordship the Bishop of Quebec, who, animated with great zeal for religion and charity for the people of his diocese, desires to reside in it constantly, to exercise freely and with that decency which his character and the sacred offices of the Roman religion require, his episcopal authority in the town of Quebec, whenever he shall think proper, until the possession of Canada shall be decided by a treaty between their Most Christian and Britannic Majesties." "The free exercise of the Roman religion is granted, likewise safe guards to all religious persons, as well as to the Bishop, who shall be at liberty to come and exercise, freely and with decency, the functions of his office, whenever he shall think proper, until the possession of Canada shall have been decided between their Britannic and most Christian Majesties." Article 27 of the capitulation of Montreal (8th September 1760) is to the following effect: "The free exercise of the Catholic, Apostolic and Roman religion shall subsist entire in such manner that all the states and the people of the towns and countries, places and distant posts, shall continue to assemble in the churches, and to frequent the sacraments as heretofore, without being molested in any manner, directly or indirectly. These people shall be obliged by the English Government to pay their Priests the tithes, and all the taxes they were used to pay under the Government of His Most Christian Majesty." "Granted as to the free exercise of their religion; the obligation of paying the tithes to the Priests will depend on the King's pleasure." The definitive Treaty of Peace (10th February, 1763,) between Kings of France and Great Britain, art. 4, says : "His Britannic Majesty, on his side, agrees to grant the liberty of the Catholic religion to the inhabitants of Canada; he will consequently give the most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion, according to the rites of the Romish Church, as far as the laws of Great Britain permit." "Voilà," said Mr. Jetté, of counsel for the defence in the Guibord case, in language equally clear and logical, "les expressions mêmes de ce traité, rédigé par les diplomates des deux pays, c'est-à-dire par les hommes les plus aptes, les plus compétents, les plus exercés à apprécier et peser la valeur et la portée des mots et des expressions, par des hommes qui étaient à la fois des jurisconsultes et des hommes d'état. Or, qu'est ce que l'on stipule quant à l'exercice libre de la religion catholique? Réservet-on pour les Canadiens, devenus sujets d'un roi protestant, l'exercice libre de leur religion avec toutes les garanties, tous les priviléges, toutes les libertés, et pour bien dire toutes les servitu des de l'église gallicane? Non, au contraire, les canadiens auront la liberté d'exercer le culte de leur religion, selon les rites de l' Eglise de Rome. Peut-on croire que cette expression se soit ainsi rencontrée par hasard sous la plume de ces diplomates? "Peut-on supposer que sur un si grave sujet ces hommes éminents auraient employé, sans y réfléchir, une expression qui devait nécessairement éveiller dans l'esprit d'un diplomate français de ce temps, l'idée de l'Eglise gallicane. Comment,, ce serait à l'époque où le droit gallican était dans toute sa force, où les magistrats comme les hommes politiques ne perdaient aucune occasion d'affirmer ces libertés et ces principes du droit gallican, que le roi de France n'aurait réservé pour ceux de ses sujets qui passaient sous la domination d'un prince protestant, que l'exercice libre de leur religion conformément aux rites de l'Eglise de Rome, et l'on ne verrait là que le hazard d'une expression sans portée? Non, il est impossible de le penser. "Ces termes ont donc leur signification absolue, et il est impossible de ne pas croire qu'ils n'ont été ainsi employés qu'après avoir été non-seulement pesés et mûris, mais encore après avoir été discutés entre les diplomates des deux pays. Comment en effet, le roi de France aurait-il pu exiger du roi d'Angleterre qu'il se fit le protecteur des saints canons de l'Église catholique? comment aurait-il pu demander à ce rui protestant de se charger de la protection même spirituelle de cette religion catholique dont la liberté seule était accordée ? Et l'eût-il demandé, le roi d'Angleterre aurait-il pu concéder cette demande? Assurément non, il suffit donc de connaître un peu l'histoire pour apprécier ces termes si clairs du Traité de Paris." Mr. Laflamme, on the other hand, sees only illusory guarantees in the fourth article of the Treaty of Paris: "Par le traité de 1763," he remarks, "dont ces articles de capitulation n'étaient, que le préliminaire, et qui fut fait et rédigé par les autorités souveraines réglant définitivement le sort du Canada, Sa Majesté Britannique consent d'accorder la liberté de la religion catholique aux habitants du Canada, et leur permet de professer le culte de leur religion autant que les lois d'Angleterre le permettent. Il faut avouer que cette restriction enlevait pour ainsi dire la valeur de la première disposition et assurément que l'on ne pouvait plus formellement réserver la plénitude de la suprematie royale et souveraine même en matière ecclésiastique." The learned counsel, in support of his opinion, attempts to resuscitate an ancient policy of some Crown officers, a policy based solely upon religious prejudice and fanaticism, and which has been long since forgotten. He relies upon the following authorities: 1st. Opinion given to the Imperial Government on the 3rd July 1811: We notice the condition of such benefices as a destruction arising out of the general question, and also as showing that the right of patronage under the French Government was dependent, in some measure, on the Sovereign, and cannot be considered to have been vested in the Bishop by virtue of rights or powers derived solely from the Pope. If, however, the right be supposed to have originated from the Pope, we think the same consequence would result from the extinction of the Papal authority in a British Province. For we are of opinion, that rights of this nature, from whichever source derived, must in law and of necessity be held to devolve on His Britannic Majesty as the legal successor to all rights of supremacy, as well as of Sovereignty when the Papal authority, together with the episcopal office, became extinct at the conquest by the capitulation and treaty, and the 1 Eliz. cap. 1, sec. 16, as specially recognized in the act for the Government of Canada." 2nd. Opinion of the Canadian Attorney General Sewell, given in 1806, relative to the dismemberment of parishes: "That the office of the Roman Catholic Bishop of Quebec was annihilated and all the powers inherent therein transferred to His Majesty by the capitulation of Quebec and Montreal, by the conquest of Canada, the treaty of peace of 10th February, 1763, the Statutes of Henry VIII, cap., I. the 1 of Elizabeth cap. I., and 14 George III, cap. 83, and that the said office hath not at any time since been by law reestablished; that no such office as superintendent of the Romish Churches hath at any time existed in this Province, |