of the conquering state.”
AGAINST THE
(1888 )
BY
measure (the compensation bill) as well as in passing the
last year.” — 7Zoronto Mail, July 5, 1888.
MONTREAL 1889
GAZETTE AND MAIL’S CAMPAIGN
JESUITS’ ESTATES BILL
A. E. JONES. S.J.
“It was not necessary to cite authors to prove that the custom of civilized nations is to respect private property, or any property not obnoxious to the fundamental law Montreal Gazette, July 7, 1888.
‘* Beyond question the Quebec Legislature is well within its rights in passing that
Jesuit Incorporation Act of
.
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as aaa} weer eer Se ee
TEL H
GAZETTE AND MAIL'S CAMPAIGN
AGAINST THE
JESUITS’ ESTATES BILL
(1888 ) BY
A. E. JONES, 8. J.
‘¢ Tt was not necessary to cite authors to prove that the custom of civilized nations is to respect private property, or any property not obnoxious to the fundamental law ' of the conquering state.” — Montreal Gazette, July 7, 1888.
** Beyond question the Quebec Legislature is well within its rights in passing that AM measure (the compensation bill) as well as in passing the Jesuit Incorporatiun Act of
last year.”—~-Zoronto Mati, July 5, 1888.
MONTREAL 1889
Pitch nea mi eel Aer: wane a + Se SS ee Se
~~
CONTENTS
I
THE GAZETTE’S CAMPAIGN AGAINST THE BILL.
Pace.
THE ATTACK.—First ArticLE or THE ‘* GAZETTE,” (Montreal, june 22, 1888]. 1
ANSWER TO THE IST ARTICLE oF THE ‘* GAZETTE,” [ Gazette, July 25, 1888]... 6 There has been no appeal to religious prejudices in the defence of the rights of the Jesuits and no ‘< vague tirades’’ about treaty tights. The defence
grounded on the merits of the case céscdemenecvethentba ose (sddebheadereescdalaatstbacece O07 The position uf the Catholic who attacks the Society an unenviable one — Gregory XVI to Mgr Aff're...sssccesessssose cseceoes SANT AY Sasbeneesee teabeneos seasseeds vee 8
Synopsis of the legal statement of the case. The seizure of the Jesuit’s Estates not sanctioned by right of conquest in general, nor by the terms of capi-
tulation in particular... .ccsscseeee *eeeeegiencessses ssopsiene vichacbse/seseseta sbcecees 8,9 The title by escheat not valid.—Nor was it ever mentioned in transfers or con-
veyences..... POOL eee e eee cess teeeeeeeeeees WPGROGOER Focneee se egoeesiapecde teuinedeseneacceeee voces’ 9 The government therefore has no positive tenable claim. The present Society
of Jesus has. [See note]....0. -ssesssee seovsseee .- 5. TWEE EY te secseaeeeeeeneeee sesouees : 10 Editorial note of the Gazette to the above PORE isovebes vatsrsivenatbeteae vosbistevdoekics ~ 10 SECOND ARTICLE OF THE “ Gazerre,” [June 25, 1888]........ Dshveisieectadas So aeteeseeees 10 THIRD ARTICLE OF THE “ GAZETTE,’ [June 27, 1888]...... seinubancees st Th idrvei Le SECOND REPLY TO THE ‘ GAzeTTE,”’ [June 28, 1888]...... Wed yueiced Geebeae CeuGUae PR Cha cké 18 The shallowness of the Gazette's FURBO visigs cascaciseviuitisiieeninteies, ie ee ieceosea: 18
Misquotations and misstatements. The body of the Episcopate in France in 1761 report favorably on the Order. Catholic France agains: the ex-
pulsion of the Jesuits.........660.00. SOE SS Sesba eats sb edserecssstetbavedcesevieeserivevcecs 19 Christophe de Beaumont’s letter (Paris, April 24, 1774] to Clement XTV........ 20 [n what sense the Jesuits are POPMULD ATONE, fists csiyccalhainivcivcotiovesiaktec nace: 21 The unanimous voice of the bishops, on Pius VII's testimony, call for the re-
cual heed Mb hor ol CL Ion aera cea BO aia ne 21 The Gazette's logic as to the civil suppression in Canada ........cccccscsssescce sss, 22
By title of “Conquest in General,” according to the Laws of nations, a conqueror has no right to the private properties of citizens or ofauthorized corporations. 23 Individuality and immortality : two esential properties of a body corporates... 2 The Society of Jesus in Canada was a ho ly corporate from 1678. Its right of pro- perty was protected by the Laws of IV GPOWMY Soh ev sitleasehceushiscoessssdoal nh Feehan eG 27 The letters patent of the French Ning, asolemn contract Of protection with the Suciety. Lt» obligations binding onthe King of England who supplants him. 28 Vhe Royal instructions Of LT91, to suppress the Jesuits, are a peremptory proof of their corporate existence dawn tu that due at WORE es Pi cciiminastcniina 10 ANSWER TO THE “ Gagerre,”'— Continued, (Gazette, July 8; 1888) bveehsealiecbnovaniveie 30 Clement XIV would have us know that in the -b ief of suppression he -has not ‘set forth all the motives of his MOTOR sieriilinrinunseivraniiiniitatic. OL
a TSA, EE SE SAS aS TS
algae apt yiotogge
RSs ae at ao
Mee
TN a
pl Ned ret
II
PAGE.
He excommunicates in his brief those who orally or in writing insult the mem- DOTA NOFFENG) SOOIOCY iz} cccs to cncssseatectivsseea teens eiagens clarsdscaeeue ceed te taeaiva ey ccenanitaticts
The Jesuit’s Estates are Uhurch Pr opentes siete eakpe Snastorsadsosodeptetdanshisee pees tees kevages
The King of France could have no letinate: title to them; a Seancaauently neither could the Long of England who merely succeeded to his right.
The duty of maintaining the esi da laws of property is imposed by the general PUNE Of CONQUESL, cceecceecnessseeesssenees sddadeitescasbans seeen ane ceaded dacareren suede vessony ease
The (juebec Act of 17174, lacunae as it t pantriete eat) aiipulustons, is tilera vires. It in no wise ajjfects vested rights ; hence inapplicable to the case.. ;
By title of the conquest of Canada in particular the right of the Fisuitai to hate property was unassailable, Capitulation of Quebec. That of Montreal and of the whole tba tange ie Ge Runa, Ione GS hun
The Treaty of Peace.. siehoncdospineciuedeansyy dsdosoesvadagesseseredaddhegees pedeawe ccesgniscastbeces depose
What was refused w itha a proviso in sake v an WL Retlile of the Capitulation of Montreal? Interpretation of Treaty Stipulations cece scccvercrsseeesevserccres
A common sense notion of the sacredness of Treaties and capitulations. It’ tallies with that of the great authOrities.........sceccccrsecsserseeeee cecsenees senses
By whom the wrong was perpetrated cerccoveescsecceccccsvvceveeecscercescesscensenees seeeeeeee
English Authorities on the rights of Religious Orders in Canada to their property AS: BECUTEC! F7/ LPECEY iis sensi ssvsucas gy sdecoedesead a secaehs eae aed evvus caves Bucenseved Le doueeetse
Thurlow on the above rights and on the change. of atevexinting ae atest iss
English Penal and Common Law, as such, do not hold in the Colonies ; ‘hia mean- ing of the clause: ‘as fur as the laws of Great Britain permit”? ..ccccceee-
ANSWER TO THE ‘6 GAZETTE.’’—Continued. [Glazette, July 5, 1888 ]ecccccecercenees
The title hed escheat is not volid, nor was it urged, in the matter of the Jesuits’
A ere box ey can not be aroun he the penis in eile of his Royal prero-
OUI ALONG ics esvcsvanitcowes take €ausduse vuieRd sacs avon obobinbaeaobes setae cvakraccntens’ Sarsuoavatee¥aaaskie Proof that the Crown inhibited the Jasuste ie receiving new m hata: Con-
sequently the title of the province to the estates by escheat is untenable... Before the law, the positive claim of the Jesuits to their estutes (8 Valid ss seeeseveecsens THE GAZETTE’S LAST WORD —[July 7, .1888]......cssssessesessesesee eee coesseennessssneeses sosnee A further reply to the Gazette is refused publication... sebasebvasshopeapeaveesnesisedenst THE Resectep ResoinpeR to the Gazette's Last Word.. The Gazette facts on a par With Gazette principles....cccscececeeeseeeneeceeeeesen eeeeeeees Private property to be respected when not obnoxious to the fundamental Law
of the conquering State.—The Gazette and Wedderburne arm in arm.—
shane
A bugaboo... ageaeee UU RUE sas Vang dvsness eed dceenrsbopsussrneercceren becpepneumnecbenkere dee Sir Richard Temple bears witness in India. t to the loyal: or f the Tealte ey In 1761 the leading Lawyers of Paris opine that the-houses of the Order have, financially speaking, no mutual responsibility... cece sees Gitatdives Why three Catholic States expelled the Order. In order of attack, the Jesuits first the Church next....... UA VEboIN SOA LaMA Tay Ro Eon CATERED sevebigepbaasnuind cpanvene'ssyene A learned Protestant proclaims the Order ‘‘a common bulwark of defence for all lawful authority”? ....cc0.. sadtepetats geavheis Dike sccetestecses Gage kere Pishiecurceanieces ia Wedderburne discloses the real cause of Bypodtitan to the Jesuits for the edfa- cation of their opponents of to-day ...... eaves Wericrrenrnirseye apa ttues Pies Gsaiece
Wedderburne’s new principle to justify spoliation.—An ‘ingenious specu- lation.’’—-Present good behaviour punishable for possible future miscon- duct.—Unparalleled geuerosity.— Gazette tactics productive of a uew crop OF WeddOrburnes ....1..sr0cvsvrensveererene sevepens svvevensa vorsesens voonesess cadgnecvvsnees
32
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65
III
Paar.
Marriot, Voltaire’s friend another patron saint of the Gazette.—A eynic.—A self- conferred dipioma of incompetency.—A superfluous decoration, but well
COROEVER cc. oeysitiivesnscesnucvesevasduouseleadecetccccocavacdercecdatess sedcdnesoeageracnecsvaes A legal snub from Sir Fletcher Norton and William de ties dateseanins aes beside the question........... stiseanne padeaesrecnenatedsedncdedcesachdeseniets
“* The title which was given bop the ‘King | the old Pr ovince of Lower Canada was not only by conquest but by escheat’ is a Gazette proposition without proof.
A crumb of comfort.—The ghost of escheat finally laid.—The confiscation based solely on the rights Of conqueSt..........scssssoes concesecscceecvscssesecesscceececees
From pillar to post.—The Gazette's mea culpa.—His last blunder worse than the first... dosbnacs
Father Casot’s real status made ‘olenne.
II I.-—-THE TORONTO MAIL AND THE LITTLE DREAMER. The Toronto Main July 2, 1888.
Summary of the Article and Reply......... adunseh ned ccagsioanajosseoee.esd senngescivguusesascesantads Text of the Article and Reply... cocci. ccc cc ccccceccecsceseseseccsceaseceevecs 2 The Pope as a fourth Estate in the Province of Quebec..............ceceee cee Are what are termed Jesuits’ Estates public property ?........ ... Setanadwae ne Does it belong to the people of Quebec irrespective of Creed?............... ‘ The exact terms of the cession to Quebec of the Jesuits’ Estates.—Lord Gode-
VIGNO CONDALCD) JULY Ti lSak i ccerencsceckeoidvecekeeeer ts ceahetueseeves ‘ POO LOR) BOLUUO Vi cnc ci eines Vevey evecceercare ren desogene’ gsin es GSBtiOd Spcabt One The Protestant horse and the Huntingdon nightmare SE OER A Rae e Ree eee eee ae Ignorance of the Quebec Legislature in not knowing that instead of the Pope
the Mai, and GLEANER are the fourth Estate in the realm...............
The Toronto Main, July 5, 1888.
Summary of the Article and RRADIV serait eae We rats Se Mule RES Hein auUeeR ee ee The spoliation theory.—A rule that should work both ways. French and English Laws.—The stream that runs up hill,............ ccc cece eecceseceseees ‘ Wexs Of therAriole and Replys is vevewen vee ce Wes eivameise Reg alow visible sete eas wloel After the Brief of Suppression in 1773 did the’ Jesuits cease everywhere to exist ?—Frederick If.—Mgr Briand and Carleton.—The Brief never pro- PAG) BACB: Ir CAO 64 vce wea chads Ext ced natoraoneenenierceauae yt Were the Royal Instruction, 1791, ever carried into effect ?—Stubborn facts vs. the Mail’s doubts.—Was an alien General of the Order the proprietor of WOR OSCRIOOET S cisis vanes chcser cuios Io COUN eED TAN EGEb Ne ckiotesinekvelcen eas The non-solidarity of the Jesuit establishments.—-The Institute of the Jesuits determines the powers of the General ............ ccc ce eeeeceeveneeses What of the proprietorship in Canada?—-The General an alien, an idle ques- tion.—The non-solidarity question and civil legislation in Protestant and
Catholic countries ...........200.008- GRRPNSETL COUTTS PERS TRDET ERT OT INPo ee Does a mendicant order hold property ?—Jurisprudence on these matters in BPANCS Sic rie csseceey es iveacruee VORP CES ON CS femnerers fevees 3 The Mai waives an untenable point, CtC......... cc cee ccc cece ce eseceeeeeceece °
Escheat once more.—The Mercer and the Jesuits’ Estates.—The Mail’s notions on parallelism.—Proscribed in England,.,...... pes ey Fre VEY ;
69 70
84
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Soonuiidna dhe delieiieninecad atiatee a aaa ee
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PAGE.
The Jesuits and the English Government after 1773.—No confiscation of the Estates in La Martinique, nor in India.—An adverse precedent,.......
THURLOW vs. BLAcKsTonE.—Colonial Penal Laws a myth
The Maiu’s dishonest tactics,——-The question summed RO Spi wdueleatdpem eesti
Does the brief of 1773 palliate spoliation ?~-No flaw in the line of argument against escheat.—A correction
ee ee
men and Masons in Quebec .... : hee e araethiaie The Society of Jesus identifies itself with no purely political party,....... The Society grateful to its benefactors, irrespective of 1125 4 eae ea aa The Mai declares that in pasging the Bills of Incorporation and Compensation in favor of the Jesuits the Quebee Legislature is well w
e cherished by our adversaries. Useful References in the present GON VED VOREY o's iS Gustaneee cy KO Ce hee Ld
THE Jesuit DECLARATION oF RiguTs made previous to the seizure,,,....,.,
90 9t 92
33
tb
a. Ss eee
FIRST ARTICLE OF THE “ GAZETTE.”
(THE GAZETTE, Montreal, June 22, 1888.)
—
THE JESUITS’ ESTATES.
The question of the Jesuits’ Estates is, we venture to think, much simpler than it has been made to appear. We do not now propose to question Mr. Mercier’s power to give to the present order of Jesuits a half million of dollars; nor do we wish to impugn the merit of that society : we merely desire that the facts concerning the estates of the Jesuits of 1760 may be understood. They are not many in number.
It is not worth while to discuss the position under French law of the Jesuits in Canada at the conquest, They held property here in some way as a matter of fact, and were recognized by the King of France. Their position under the English regime necessarily depended upon the terms—rst of the capitulation to Amherst in 1760 ; 2nd upon those of the cession to the English Crown in 1763 under the treaty. Article 32 of the capitulation reads : “ The communities of nuns shall ‘be preserved in their constitutions and privileges. They shall con- ‘* tinue to observe their rules, They shall be exempted from lodging ** any military, and it shall be forbid to trouble them in their religious ““ exercises.” The reply of Amherst was : “ Granted.” Article 33 reads : ‘ The preceding article shall likewise be executed with regard to the “communities of Jesuits and Recollets and of the house of St. Sulpice ‘‘at Montreal. This last and the Jesuits shall preserve their right to “nominate to certain curacies and missions as heretofore.” The ““answer of Amherst was: « Refused ; till the king’s pleasure be “known.” The next Article provided that the Jesuits, Recollets and Sulpicians ‘ shall be masters to dispose of their estates and to send ‘the produce thereof, as well as their persons and all.that belongs to “them, to France.” Thus in the surrender.of the country by the governor of New France to the general-in-chief of the English army the case of the Jesuits was specially considered. It was to depend “upon the pleasure of the king” of England.
From 1760 to the close of the war everybody in Canada waited in uncertainty as to the fina! result. The definitive treaty of peace was
9
od
Mana MAIN, aad
signed at Paris, on February 10, 1763. The only stipulations bearing upon the question are the following: ‘‘His Britannic Majesty 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 reli- *‘ gion according to tue rites @f the Roman Church as far as the laws ‘“‘ of Great Britain permit. His Britannic Majesty also agrees that “the French inhabitants, or others who had been the subjects of the ‘“‘most Christian King in Canada, may retire with all safety and «¢ freedom whenever they shall think proper, and may sell their estates, “* provided it be to subjects 0° His Britannic Majesty, aad bring away ‘“‘ their effects, as well as their persons, without being restrained in “their emigration under any pretence whatever, except that of debts «¢ or criminal prosecutions ; ¢he term limited for this emigration shall << be fixed for the space of eighteen months to be computed from the day ‘« of the exchange of the ratifications of the present treaty. ”
Thus it is manifest that what was secured to the French Canadians by treaty was the liberty to worship according to the rites of the Roman Church ¢#o the Limit of the English law as it then stood; while the Sul- picians, Recollets and Jesuits were left under the terms of the capitula- tron, viz: to “the pleasure of the King” as regards their property ; but they, like all other Canadians, might sell their estates to English subjects within eighteen months and retire to France. The Sulpicians complied. The heads of the order in France sold all their Canadian property within the specified time to the house in Canada. The Su.- picians in Canada became British subjects and followed the fortunes of the French Roman Catholic Canadians who remained in the country. This the Jesuits did not do. The rules of their crder would not permit ‘it. Consequently they, by the terms of the capitulation, remained still “at the pleasure of the King.” There is a profound distinction between the Seminary of St. Sulpice and the order of Jesuits. The first was originated by French subjects in France under French law : the second originated in Spain ; it is of no nationality, and its law is the will of its general.
While the emigration was going on and the Sulpicians were arranging for the transfer of their property, before the eighteen months had expired, the Government of France, in 1704, suppressed the order of Jesuits, dissolved its houses, and banished from the soil of France all its members. So far as French law had effect, the Jesuit order ceased to be. The blow had been long impending. The bishops of France had represented to the Duc de Choiseul that the unlimited authority of the general residing at Rorme was incompatible with the laws of
France. The “ pleasure of the King of England ” was not likely to be more propitious than that of the bishops and King of France, This was manifest in the King’s instructions to Governor Murray, December 7, 1763, clause 32—“ You are not to admit of any ecclesiastiesl juris- “‘ diction of the See of Rome or any other foreign ccclesiastical juris- *‘ diction whatever in the province under your government.” This jealousy of the See of Rome was relaxed in after years, and religious \ hiberty was secured to the French-Canadians by the Quebec Act of | 1774. The laws of Great Britain were, by that act, so extended as to secure the fullest liberty to the Roman Catholic religion—liberty to a far greater extent than, at that time, was enjoyed by the Protestant L - dissenters from the Anglican Church in England. In the meantime, 5 before the Quebec Act was pissed, and while the British Government 1 was deciding upon its ultimate policy, there was no hesitation as to the y Jesuit order. The commission to the King’s Receiver-General in 1765 shows that. His instructions read as follows: ‘‘ And whereas the lands y ‘‘ of several religious societies in the said province, particularly those n “ of the society of the Jesuits, are, or will become, part of His Majesty’s l- ** revenue, you are therefore to endeavor, by agreements to be made L- ‘*‘ with the persons interested for the present in any of the said estates, s : ‘to take the said estates into your charge, giving unto them respec- h * tively such competent: allowance thereon for their lives, as you may 1S ‘‘ judge proper, taking care that these lands may not be sequestered 1: n ‘“ or alienated from His Majesty.” Again in a letter from Lord Shel- A - burne to Governor Carleton Novernber 14, 1767, we read: “ It has BS “been represented to His Majesty that the Jesuits of Canada make y. “ large remittances to Italy and that they imperceptibly diminish their it “‘ effects for that purpose * * * ‘Too much care cannot be taken W * that they do not embezzle an estate of which they*enjoy only the n “ life-rent and which must become on their démise a very considerable i hs * resource to the province, in case His Majesty should be pleased to id : “ cede ic for that purpose. ” ts It is the habit of many who live by whipping up religious and race jealousies to base the liberty enjoyed by the French Catholics in Canada upon the capitulation and the treaty. They suppress entirely the clause : * so far as the laws of Great Britain permit.” These documents are of . to be found in any history. The fact is well known ; and yet vague me tirades about “ treaty rights” still serve to mislead simple people and al prejudice them against tne English Government. Once again, let us e say it: the people of Canada were abandoned by the French of Old : | ty France, The English laws at that time permitted very little toleration ; of to Roman Catholics ; but the English Parliament modified its laws,
if 4 4 3 it * | ]
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i EP ot SET Rae APO
nA PI hm be
t
eleven years after the treaty, in deference to the religious sentiments of the French who remained in Canada. We cannot lay too much stress upon this fact. It is explained away, it is minimized, it is con- tradicted, but nevertheless it is true; it is plainly written in easily accessible documents and to stand up before ignorant audiences and deny it is dishonest. Let us never be forgotten that the charter of French Catholic liberty is in an act of Parliament and not in a treaty. The act of 1774 made a new departure in Canadian history, and neces- sarily new instructions were sent to the Governor. These were dated January 3, 1775; the passages of present interest are the following : ** That the society of Romish priests, called the Seminaries of Quebec ‘and Montreal, shall continue to possess and occupy their houses of ‘* residence and all other houses and lands to which they were lawfully ‘‘ entitled on the 31st September, 1759, and it shall be lawful for those ** societies to fill up vacancies and admit new members according to “the rules of their foundation. * * * That the Society of the ** Jesuits be suppressed and dissolved and no longer continued as a “body corporate and politic, and all their rights, possessions and ** property shall be vested in us, for such purposes as we may hereafter *¢ think fit to direct or appoint ; but we think fit to declare our royat ** intention to be that the present members of the said society, as estab- * lished at Quebec, shall be allowed sufficient stipends and provisions ‘‘ during their natural lives.” Thus was the pleasure of the King made known, and so it was carried out, until, in 1800, the last Jesuit, Father Cazot, died, and the last stipend out of the Jesuits’ estates ceased.. But, in the meantime, while the last Jesuits in Canada were ending their lives in peace and plenty under a Protestant King, the order was totally suppressed throughout the whole Catholic world. The storm which had been long gathering, broke in 1759, in Portugal. In 1764 in burst in’ France ; in 1767 in Spain. The order was totally suppressed in the European and colonial possessions of these and all other Catholic countries, its estates confiscated, its members banished. The Catholic countries did not allow stipends for life, but drove the unfor- tunate Jesuits into exile and want. This was not the worst, for on July 21, 1773, Pope Clement XIV issued the celebrated Brief Dominus ac Redemptor noster, in which he suppressed the order throughout the world, and it remained suppressed and utterly dissolved until fourteen years after Father Cazot’s death at Quebec. Truly, if ever a man died without heirs it was Fet':er Cazot; and if ever there was an escheat, the Jesuits’ estates would have been escheated, even if they had, not been confiscated at the conquest. The Pope’s brief is very Jong. He cites many previous instances of the suppression of religious orders by
SFE ey ARS RTS GEE DRS
a a ent er enrere Perrone apetann
epee OIA be
5
the Holy See ; he recites the many favors and privileges conceded to the Jesuits and he states that almost from their institutton ‘* there arose ** in the bosom of the society divers seeds of discord and dissention, **not only among the companions but with other regular orders, the ‘** secular clergy, the academies, the universities, the public schools *‘and lastly even with the Princes of the states in which the society “* was received.” The Pope then recites at some length these quarrels ; the dissentions, he says, grew day by day—the accusations “ multiplied “‘ without number, especially with regard to that insatiable avidity of ‘* temporal possessions with which it was reproached.” ‘Then follows an account of some abortive attempts to reform the society—* in vain,” he adds, did these Pontiffs ‘‘endeavor by. salutary constitutions to ** restore peace to the Church, as well as with respect to secular affairs ** with which the company ought not to have interfered.” After reciting some further efforts he proceeds “ After so many storms, tempests, and ‘* divisions, every good man looked forward with impatience to the “* happy day which was to restore peace and tranquillity ; but, under * the reign of Clement XIJI, complaints and quarrels were multiplied “on every side, in some places dangerous seditions arose, tumults, ‘* discords, dissensions, scandals, which, weakening or entirely breaking “* the bonds of Christian charity, excited the faithful to all the rage of ‘‘ party hatreds and enmities.” ‘These and such like grievances are recited at great length. At last the conclusion comes. ‘‘ After a mature ‘*¢ deliberation, we do, of our certain knowledge and the fulness of our “‘ apostolical power, suppress and abolish the said company.” The Pope ‘ abrogates their statutes,” extinguishes the authority of all their officials, releases all their novices, forbids any accessions to the order, submits all: who have taken the last vows to the authority of the Bishops, converts their property to pious uses according to the inten- tion of the founders and the holy canens and extends the operation of the Brief even to the distant missions. ‘ Our will and meaning is that the suppression aud destruction of the said society and of all its parts shall have an immediate and instantaneous effect” under pain of the greater excommunication reserved solely to the. Pope.
Now then—seeing that all this had in 1773 been done and said by the Supreme Pontiff and that the Jesuits had been expelled out of all Catholic lands into orthodox Russia and Protestant Prussia, where they lived as individuals, was it strange that the King of England should, after providing so carefully for good Father Cazot, apply the Jesuits’ estates to educational purposes ? for the Jesuits were a teaching order, When Father Cazot died there was no Jesuit corporate body any where throughout the world. Pius VII, in 1811, when he reinsti-
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tuted the order in Russia, calls them ‘secular priests, once members “of the company of Jesus, suppressed by Clement XIV, of happy ** memory, ” and his bull of restoration, August 7, 1814, did not at- tempt to reinstate them in their possessions. Those possessions by the Roman.canon law as well as by the express terms of the Brief would fall into the general administration of the Church ; they cannot by the: law of the Church be inherited by the present Jesuits. The corporate identity of the order is broken. In Canada it ceased to exist as a cor- poration, in 1760, by English law. By canon law it ceased to exist in 1773. In the Roman Church the order was re-incorporated in 1814. In Canada it was incorporated last year, but the corporate life has been hopelessly interrupted. The present corporation is a new person. By cauon law no prescription can run against the Church, but the order of Jesus is not the Church of Rome. The Church of Rome existed before the Jesuits, it existed during their suppression ; not in Russia, where alone for thirty years there were avowed Jesuits, but in its old seat among the Catholic nations. The ‘“ worship according to the rites of the Roman Church” referred to in the treaty is a definite thing ; the establishment of the order of Jesus is another thing. It is. an utter confusion of ideas to attempt to drag the latter into the treaty. If it be thought desirable to present a half million of dollars to the Jesuit Fathers who are working in our midst, the Legislature has the power to do it; but let not justification be sought by confusing the facts of history.
ANSWER TO THE “GAZETTE.”
(THE Gazerre, Montreal, June 25.)
To the Editor of the Gazette :
Sir,—In your editorial of this morning (Friday, June 22nd) you have reproduced very nearly the same long category of historical, legal and canonico-legal inaccuracies with which a contributor to the Star favored the public in the issues bearing date of 19th May and 13th June.
As I had occasion then to remark, there is no easier task than that of heaping up gratuitous assertions, but it is a long one to classify and refute them. The Sfar, with that Anglo-Saxon fairness which I am only too willing to suppose, as I am myself an Anglo-Canadian, is the characteristic of every man who has English blood in his veins,.
7
published my answer in the subsequent issues of May 26th, June 2nd, 7th, 8th, oth, r5th and 16th. I have no reason to think that the GazeTTE will be less courteous. I regret, however, that your editorial duties have not allowed you personally, nor the writer of the article, to take cognizance of the arguments and citations which have convinced other minds thai I have not “‘ whipped up religious and race jealousies to base the liberty enjoyed by French Catholics in Canada upon the capitulation and the treaty,” that I have much less had a recourse to “ vague tirades about treaty rights ;” but have quoted the best English authorities to sustain my position, and shown to every unbiased mind that the “simple people mislead,” and if you so put it, “ prejudiced agains’ the English Government” are no less personages than the then Premier of Great Britain, his solicitor and attorney-general, a lurd high
_chancellor of England, and absolutely the entired’ body of:those emi-
nent men who have professedly written on the laws of nations, consti- tutional law, and the prerogatives of the Crown, Joseph Chitty himself included.
I am still waiting to see if any one can pointeout one single flaw in
.my reasoning. Until then I would be justified in allowing your editorial
to go by unheeded. But behind you, Mr. Editor, is the expectant public, composed, in great measure, of fair minded men who would not stand by and see an injustice done. Some may be prejudiced by early education against the Society of Jesus, but, whatever be their prejudices, they would, even where there is question of the much abused order, be ready to give the devii his due.
The attack made upon the just claims of the society of Jesuits in your journal is derived ostensibly from two sources, canon and public law. There is, furthermore, an inter-mixture of false appreciations, historically speaking, and a latent but strong appeal to popular preju- dice ; and this in the way of presenting the brief of suppression.
I am loath to believe that your article was inspired by one who is of our own creed. My instinct, however, leads me to ascribe it to some- body not unknown in the family circle of the contributor to the Sav.
For the Protestant public, whom I know to be fairly inclined to see justice done, I shall furnish sufficient proofs. For the Catholic public, I know the immense majority to be in sympathy with the cause I sustain. Well educated Catholics, if they be at all familiar with the history of Europe of that period, know full well by what secret influences the suppression of the Jesuits was brought about, if not, it would be well for them to consult the fifth volume of Cretineau-Joly’s History of the Society of Jesus. They know, moreover, what was the real mind of the Roman Pontiffs previous to the suppression, what that of every
Ses
faba sateinwaensiadh Baa
8
succeeding Pope until the present venerable occupant of the Holy See, in the brief Dolemus inter, gave back to the society all its privileges after having bestowed upon it unbounded praise.
The position of the Catholic, who assails the society of Jesus, as a body, is not an enviable one, even though he assail it under a non- Catholic mask. The words of Leo XIII., in the above mentioned brief, show that that Catholic is not in harmony of sentiment with the one he logks upen as Christ’s vicar on earth.
The words of Gregory XVI. to Mgr. Affre, Archbishop of Paris, should be a warning. ‘* We are aware that this society (of Jesus) is looked upon by the more prudent and fervent among Catholics as having deserved well of the Catholic cause, and for that very reason is it held in high esteem by this Holy See; we are aware it is deemed of bad repute among those who are unbelievers, or who have ‘ittle sympathy with the authority of holy church, and who after this, Venerable Brother, might well boast the support of your name to accredit their calumnies against it.”
As the proofs I haveealready given in the Stay remain unshaken, and hold good also against what has appeared in the columns of the Gazette, I do not see why I should inflict a repetition of my answer on a patient public; more especially as they will shortly be able to procure the whole correspondence in pamphlet Allow me, therefore, Mr. Editor, to change the form of my answer. I am ready, in your next issue, to make good what follows :
1, In principle, the assumed right of seizing the Jesuits’ estates, and the actual seizure, in part or in whole, was unwarrantable, (See 3.) 2. And therefore, all subsequent acts concerning these estates, such as transfers, appropriations, donations or sales, based upon the same, are equally unwarrantable. 3. This assumed right, and in fact the actual seizures could be valid only I. By right of conquest, (See 4) or IJ. By right of escheat. (See 13, page 9.) Now neither of these titles is valid in the case of the Jesuits’ estates, (See 4 and 13.)
I.
4. The title of Conquest is not valid in the matter of the seizure of the Jesuits’ estates. (See 5—12.)
5. And firstly the seizure is not valid by the general right of con- quest; (See 6, pages 9 and 22.)
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-
9
6. For by natural law, and by the laws regulating the mutual rela- tions between Sovereign and subject, the right of property of individuals and of bodies corporate and politic may not arbitrarily be invaded by the Sovereign (page 48).
7. For by the common accord of all authorities on the Laws of Nations, the general right of Conquest confers the right of sovereignty alone, and no others than those which the supplanted Sovereign pre- viously possessed (pages 22 to 26).
8. Now, the Society of Jesuits was a body corporate and _ politic, legally recognized as such by i.
(a) France before and at the Conquest (pages 26, 27, 28), and by
(W) England at and after the Conquest (pages 29, 30).
9. And that furthermore such estates are church property (pages 32, 33).
(a) To which the King of France previously had and could have no legitimate title (page 33) ;
(i) And to which, consequently the King of England, who supplanted him, could have no legitimate title (pages 22 to 26, 44 to 48).
10. And that the general right of Conquest imposes the duty of maintaining the existing laws of property (pages 33, 24, 25);
(a) And by these laws their estates were secu:ed to them (27, 28, 33).
11, That furthermore, as a statute cannot render void a treaty, the clause in parenthesis in Art. VIIL, of Act 14 Geo. III., c. 83 (the “Quebec Act”) is null and void, and moreover frustrated by its own Art. III (pages 34, 35).
12. And secondly the seizure of the Jesuits’ estates is not valid by the right of this particular conquest as set forth, in the case of Canada, by the terms of the Capitulations and Treaty (pages 36 to 47).
KI.
13. The title by escheat is not valid, nor was it urged, in the matter of the seizure of the Jesuits’ estates (page 47) ;
14, For by an unwarrantable proceeding the administration deprived them of the chances of succession by inhibiting them from receiving new members (pages 48 to 50) ; .
15. For by the right of conquest the King of England acquired the sole rights of the King of France, who could not, even by /aw/ud escheat, become possessor or usufructuary of church property (No. 7a & No. ga).
16. What concerns vacant benefices in art. xxxv. of Act 31, George III., chap. 31, (‘‘ Constitutional Act”) is at variance with the afore- said principles of the laws of nations concerning the rights acquired
ii sont she Ad as ton Se
10
by conquest, and in direct contravention of the articles of the capitu- lation, and of the definitive treaty (No. 7 and No. ga)*.
If, Mr. Editor, after I have made good what precedes, the writer of the article finds some link missing let him point it out, or state what else he would have me prove.
Yours, ets., U. E. L.
Montreal, June 22, 1888.
[ U. E. L.” is astray in his idca as to the writer Of the article he criticizes. That, however, is an indifferent matter. His letter is inserted as a statement of the side of the case opposite to that taken by this paper. That we do not coincide in its views need not be stated, and we will take an early occasion to show wherein they are, as we see them, defective, and where ** U. E. L.” fails to establish the rights now claimed on behalf of the re-organized society. In the meantime atten- tion is directed to the synopsis in another column of Hon. Mr. Mercier’s resolutions before the Legislature which in some points bear upon “U, E. L’s” arguments.—Eb. Gazetre. |
SECOND ARTICLE OF THE “ GAZETTE.”
(THE GazettE, June 25, 1888.)
On every ground from which the question can be regarded, it cannot but be considered unfortunate that the present Premier of this pro- vince should have undertaken the revival of the Jesuits’ claims. There is probably no country in the world in which the society of Jesus has enjoyed so fair a reputation and so large a share of good-will from the people generally without distinction of creed, as have fallen to their lot in Canada. Their piety, humanity and courage are associated with the most heroic and romantic period in our annals. ‘ Amid the snow of Hudson’s Bay, among the woody islets and beautiful inlets of the St. Lawrence, by the council fires of the Hurons and Algonquins, at the sources of the Mississipi, where first of the white man, their eyes looked upon the Falls of St. Anthony, and then traced down the course of the bounding river as it rushed onward to earn its title of “ Father of waters,” ou the vast prairies of lilinois and Missouri, among the blue hills which hem in the salubrious dwellings of the Cherokees, and in the thick canebrakes of Louisiana—everywhere were
* For positive claim of the Jesuits see page 50.
11
found the members of the society of Jesus.” The story of their trials and triumphs on this continent, and especially within the limits of our own land, is one of the most interesting and instructive in the records of missionary labor. Their devotion and heroism cast into the shade (at least, for Canadian readers) those less commendable qualities and proceedings which, in other parts of the world, aroused the suspicion or the anger of governments and communities. If we except certain rivalries and ambitions which marked some passages in their career, the members of the order in Canada have never forfeited that respect which is due to the faithful prosecution cf noble aims. When Father Casot died in March, 1800, he was regretted by rich and poor alike. The Quebec Gazette described his death asa public calamity, and such it doubtless was to hundreds of poor people who had benefited by his charities. At that time the order had no legal recognition in any Ca- tholic country. Even before the taking of Quebec the storm of. indig- nation that had been threatening them in Europe had vegun to burst upon their heads. The members of the order had been driven by Pombal from Portugal and its colonies in September, 1759 ; France and Spain followed the example a few years later (1767), and Napoleon and the Duchy of Parma expelled them in the ensuing year. The final blow fell in 1773, when the society was suppressed by the Pope (Cle- ment XIV). Being thus denied the protection of Roman Catholic Christendom, the Jesuits betook themselves to Prussia and Russia, in the latter of which countries they made their head quarters. A con- gregation of cardinals.was appointed to take possession of the aban- doned temporalities of the society. The general, Lorenzo Ricci, having died in prison in 1775, a Pole named Cyernicwicz was elected in his stead with the’title of Vicar-General. Two other Poles held the same title, the latter of whom, Francis Xavier Kareu, was created * General in Russia” in 1801 by Pope Pius VII. It was not till 1814, however, that the society was restored to corporate legal existence. Only a small number of Jesuits remained in Canada after the capi- tulation. Fathers Noél, Macquet, de Villeneuve, Glapion, Well and Casot are among the names on the list.handed down. to us. They taught school down to the year 1776. Young persons were given ins- truction in reading, writing and arithmetic ; and there were no restric- tions as to admission. All who chose to send ther children were free todo so. Thus, by the testimony of the Bishop of Quebec, members of the order were recognized even after the publication of the brief of suppression, and it was not until the last of them had died that the Crown proceeded to take possession of the estates. This was in accor. dance with a suggestion of Solicitor-General Wedderburne, who, in
iat lathes Saasicinaaionks barrens kee nor ee ey
ss
12
giving his opinion on the state of Canada, in December, 1772, said that it was “ equally just and expedient in this instance to assert the sovereignty of the King, and to declare that the lands of the Jesuits are vested in His Majesty, allowing at the same time to the Jesuits now residing in Canada liberal pensions out of the incomes of their estates.” Under all the circumstances, it can hardly be denied that the Government dealt generously with them.
As to the addresses presented again and again by the people of the province, or thir representatives, touching the disposal of those estates, all that they asked for wa# that they should be devoted to the diffusion of education. In the petition of 1828 it is incidentally stated that the ‘: said order was never the proprietor of the said college and estates, but merely its depository.” In 1831, after a vague or evasive reply had been more than once returned to interpellations on the subject, ad ac was passel appropriating the revenues of the Jesuits’ estates «xclusively to educational purpos:s. If the disposition of the property tius determined on did not meet, as to detail, with universal approval i. was generally acquiesced in as the best solution -attainable of a difficult problem. It was in 1842 that the Jesuits renewed the broken tradition of their name in New France. Fathers Chazelle, Martin, ‘Tellier, Hanipaux, Luiset and Duranquet arrived in Canada in the inonth of May of that year. In September, 1848, the college of St. Mary was opencd in this city and higher education was once more, to some extent at least, in the hands of the order.
Canada is now an independent province, and all the fathers are, we believe, natives of the country. The good which the order ‘has accom- plished during the last half century is gratefully acknowledged. As the old Jesuits began with the Christian heroism of Brebceuf and Jogues, and closed with the gentle charities of Father Casot, so have their mo- dern successors acquitted themselves with honor in their more tranquil role of educationists. ‘They have already received substantial evidence of the esteem in which they are held and of the value set on their ser- vices to society. The Protestants of Canada regard them with little of that distrust which is their portion sometimes even in Catholic coun- tries. As for their relations with the orders of their own church and with the secular clergy it is not for us to meddle with them. We cannot but feel, nevertheless, that, even on the grounds of worldly wisdom, Mr. Mercier is badly mistaken if he dreams of serving his former tutors by raising from its grave this dead issue of a day that is past. Had Canada remained a French province, need we say that such a claim would have been unheard of? That, doubtless, is beside the question, and comparisons are proverbially odious. But setting the Crown and its
13
actual representatives aside, and taking account simply of the commun- ion to which M. Mercier belongs, is it wise or generous or just to cast this apple of discord among the people of this province? What pur- pose can it serve save to re-open old sores, to revive old grudges, to reawaken ancient feuds! Surely to use his position in that way is the policy of neither a statesman nor a patriot.
THIRD ARTICLE OF THE “ GAZETTE.”
(THE GAZETTE, June 27, 1888.)
The Jesuits’ Estates Again.
On Monday last we published a letter, signed “ U. E. L.” upon the subject of the Jesuits’ estates, in which exception was taken to our editorial of the Friday previous. We were glad to give space to the letter. There is nothing we desire more than the candid discussion of every point of this important question, but we wish to confine the dis- cussion, so far as we are concerned, to the vital issues, and that is the reason why we could not enter upon the quagmire of irrelevant matter which our correspondent had previously opened up in the twenty columns of small print which he had contributed to the Sfar. We repeat that the facts lie in small compass and can be grasped by any layman. Our correspondent wishes to lead us into the uncertain regions of the text writers upon international law. ‘The question, in so far as it is a legal one, is one of definite lav—of the municipal laws of France and England, and of the Canon Jaw of Rome, but chiefly, is it a question of simple fact. In diverting his readers into these regions where every principle is disputed—where there are no formu- lated decisions, and where irresponsible writers, of varying authority in different nations, can be quoted in support of almost any proposi- tion, U. EE...” has led attention away from the essential points. The reader is insensibly beguiled away from the facts, and is apt to suppose that where so much 1s said there must be a great deal of reason ; whereas, usually, the very opposite is the correct conclusion. When a discussion has got so far adrift, it complicates it more'to follow out the numerous false issues raised. The only reasonable method is to return to the central facts.
The tendency of “U. E. L.” to lead his readers off into side issues is even more strongly marked in his letter. Whether the writer of this
ay ne
eS rt eS
14
or that article in the editorial columns of the GazttTE is a Protestant or a Catholic is not important. Nor is it important whether he is, or is not, of the same family as some writer in the Star. Such enquiries are not only contrary to the etiquette of press discussion but they are irrelevant to the subject in hand. The only rhetorical value they can possess might possibly be to raise some religious or personal prejudice and so obscure the force of an opposing argument.
It is not less wanting in candour for “U. E. L.” to charge us with repeating gratuitous assertions, We refer our readers to our issue of Friday, June 22nd. It will, we think, be found, that we have made very few assertions. We have allowed the documents—the Capitula- tion and the Treaty—to make the assertions. We have for the most part qucted the words of great state officials. ‘The assertions in our article were chiefly those of a Pope. Let not the editor of the GAZETTE be held to account for them.
And here we would remark that we shall never seek to be more Catholic than the Pope. It is as much an error to transgress in excess as in defect, and we warn “U. E. L.” that, in setting up Pope against Pope, he is overstepping the limits of Catholic duty. He charges us with assailing the Jesuit order, when we quote the Brief Dominus ac Redemptor noster, and he says we are “not in harmony with Leo XIII, Christ’s vicar on earth”. Does “ U. E. L.” mean to say that Clement XIV. was not equally Christ’s vicar on earth? He insinuates that Pope Clement did not state the facts in his Brief. He refers us to Mr. Creti- neau-Joly to learn the unworthy motives which actuated this Pope. We are not disposed to go a-field after Mr. Cretineau-Joly. We are inclined, in matters concerning the Roman Church, to believe that the Pontiff who is its earthly head tells the truth, and we are not disposed to ques- tion his motives. We resign that to the semi-Protestant school who are always setting up their private judgments against any Papal decree they may not approve of—who agree with the Pope when he agrees with them, and who yet assume to lecture better Catholics than themselves, as if they alone were the Church and all Catholic truth was centered in them. We are not disposed to learn our catechism from amateur Popes. If “* U. E. L.” prefers to believe that the whole Catholic world, the Pope included was wrong; and that the truth retired to Russia with the Jesuits who went there, we will uot lecture him; we would only remark that his views of Catholicity are somewhat pecu- liar.
The theory which we maintained has the merit of accepting the Briefs of all the Popes. We do not yield to “U E. L.” in respect for the learned and able Pontiff who now occupies the Holy See. We acknowl-
15
edge to the uttermost the self-denying zeal of the Jesuit Fathers who carried the cross into the wilderness and who faced with unshrinking courage savages more like demons than men in their cruelty. We have not assailed the present Jesuit order. We have simply maintained that the Jesuit order, as it existed, was utterly and totally supressed all its parts by the highest ecclesiastical and civil powers, and that the present Jesuit order is a new corporation and cannot inherit the property of a previous body whose corporate life became extinct forty years previously. We spare our readers an excursus into the law of corporations. The application of that law will at once suggest itself. We observe in the resolutions submitted to the House that some such view is underlying them ; for the indemnity is to be paid, not according to the usual course of Canon [,aw, to the ecclesiastical authorities of the Roman Church in Canada ; not according to the decision of the Holy Father as expressed in the Cardinal Prefect’s letter of March 1st, 1888, to be ‘‘ deposited and left at the free disposal of the Holy See” ; but “in accordance with the exact terms” laid down by Mr. Mercier, who evidently desires to compel the Pope to give the money to the Jesuits —an edifying position for such zealous devotees of the supreme au- thority of the Sovereign Pontiff! If the title of the present order of Jesuits is as clear as “ U. E. L.” pretends, why cannot the indemnity be paid to them ?
Our correspondent “U. E. L.” asserts that “ the assumed right of the king ” to confiscate the estates of the former Jesuits was not valid. If he means that the King ougnt not to have done it, we shall not stop to discuss a matter of private opinion, legal or religious ; but as he asserts that he has proved his point by the highest English legal autho- rity we would demur and cite the opinion upon this very issue given in 1765 by the King’s Advocate, Dr. Marriott, to the Attorney and Solicitor General in London:
* By virtue of the natural law of arms and conquest of countries, confirmed by acts of the law of nations by solemn cession and gua- ‘ranty, the possessions of the society lost, of course, all civil protec- tion by the fate of war ; but much more so by the only power whose authority and intervention could have preserved the property of these possessions to their supposed owners having withdrawn its tolerance and protection and deserted them as a dere/ict at the mercy and entirely free disposition of the Crown of Great Britain, by making no provision in the articles of cession to serve the pretended rights of the community of Jesuits, nor, indeed, of any other ecclesiastical “community.” In view of such an authority as this, and of the spec- ial reserve of Amherst at the capitulation, that the property of the
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16
Jesuits should be at the “ vleasure of the King,” what are we to think of “U. E. L.’s ” law? Ana what are we to think of his assertion that England at and after the conquest recognized the order of Jesus as a corpor-tion, when the extracts given in our preceeding article from the King’s instructions to the Governors fom the first forbade such recognition, and when ‘“ U. E. L.” admits that no new members were permitted to join ?
Again, we come to another pronosition in law. “U.E. L.” says that ‘a statute cannot annul a treaty.” We do not propose to waste time in discussing this, because the proposition is irrelevant. There is no treaty to annul. We refer to this statement to show how U. E. L’s. method of drawing a red herring across the trail is apt to lead his read- ers off on a false scent. Surely the unsophisticated would be led to. think that there is something in the treaty of cession bearing on the question !| Surely there is something which the act in question sought to annul. Alas for the candour of those who are eternally talking of the Treaty, they never quote it. We did, and we now do it again; for it is the key of the whole question. We wish our readers to know that Treaty. It reads :—
‘* His Britannic Majesty 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 pro- ‘‘ fess the worship of their religion according to the rites of the Roman | * Church as far as the laws of the Great Britain permit. His Britan- ‘nic Majesty also agrees that the French inhabitants, or others who *‘ had been the subjects of the most Christian King in Canada, may * retire with all safety and freedom whenever they shall think proper ‘© and may sell their estates, provided it be to subjects of His Britannic * Majesty, and bring away their effects, as well as their persons, without * being restrained in their emigration under any pretence whatever, ** except that of debts or of criminal prosecution ; the term limited for © this emigration shall be fixed for the space of eighteen months to be ** computed from the day of the exchange of the TAUACEMODS of the ‘* present treaty.”
There it is—adbsolutely every word bearing on the question. The rest of it refers to boundaries and to the cession and guarantee of the rights of sovereignty to the King of England. If there is anything else let somebody print it, so that the public may know it; and, if not —in the name of all fairness let this parrot-like iteration cease. This treaty has been like an x quantity in algebra. It has been invoked for the most preposterous propositions. It is supposed to contain the most prodigious stipulations ; but there it is, the most unlearned and ignorant can comprehend it. We decline further comment upon it ; again we
erreertanr,
17
‘say that the act commonly called the Quebec Act, is the’ charter of French-Canadian civil and religious liberty.
We pass now to some propositions concerning ‘ escheats.” We are informed that the King of England had no right of escheat because he gained by the cession only the rights of the King of France, who had no right of escheat, in ecclesiastical matters. The law of arms admits:of no such nice distinction, The French governor endeavored to obtain, under article 42 of the Capitulation, a concession of the French laws and usages. The English commander refused it, saying in reply, that the Canadians would “ become subjects of the king.” Whatever the rights of the King of England might have been they could not, therefore, have been curtailed at the Conquest. The cession transferred formally all the rights of the King of France; it could not limit the prerogatives of the victor unless so stipulated. The King of England conceded only the freedom of worship to the extent of the English law at the time. The king might have introduced the English civil law into Canada, and, as a matter of fact, that law was for a few years supposed to be introduced and actually administered until, by the Quebec Act (not the treaty), the final decision was made. The English criminal law was introduced, and the French civil law was recognized and established dy the same statute ; but from the operation of the same statute, the estates of the religious were specially, in its own terms, excepted. Consequently, the prerogatives of the King of England, in respect to these special estates, were not limited by any ecclesiastical laws which might have bound the King of France ; and his prerogative of escheat remained intact to its full extent. In any event, the title of the present Jesuit order would not be profited ; for, if the canon law had its full force, these estates would have fallen into the general administration of the Roman Church in Canada. Either, then, the property, in failure of heirs, reverted to the Crown as “ over- lord,” or by Canon law it should have passed in trust to the Roman Bishop of Quebec for the general purposes of the church. It is not now important to decide which is the correct view for the province of Quebec has got possession, and is going to settle the matter in some way. But if the money h2 paid to the wrong party, the whole question may be revived in another hundred years ; because the claims of the Church can never be prescribed,
In our issue of Monday last the names of the Jesuits of the old order who remained in Canada are given. The last of them, Father Casot, died in 1800. As a corporate body they had not been recognized. U. E. L. asserts that by “ an unwarrantable proceeding the Adminis- “tration deprived them of the chances of succession by inhibiting
2
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Se a a ear
18
them from receiving new members.” This same proceeding was taken by the King of France in 1764, and by the Pope in 1773. The brief says, “ we do hereby forbid the reception of any person to the said so- “* ciety, the noviciate or habit thereof.” ‘This prohibition lasted from 1773 to 1815—for forty-two years. During that period no law, civil or ecclesiastical, existed under which accessions could have been made: to the Order of Jesuits.
For these reasons, therefore, we believe that the corporate life uf the Society of Jesus has been fatally interrupted, and that the present society is a new body. We have not assailed either the one or the other. The representatives of the people of this province have the power to vote what they like to whom they please. We have simply protested against the suppression and perversion of plain historical: facts. The liberality of the English Government in 1774 was far in advance of anything then known and 7 was not exacted either by the Capitulation or the Treaty. No one in Canada one hundred years ago dreamed of disputing facts so elementary. Therefore, it was to borrow the words of the Cardinal Prefect Antonelli, in a letter written to the Bishops of Ireland in 1791, that Canada, “ filled as it is with innume- “rable Catholics, although sorely tempted, and not yet forgetful of “ the old French Government, remained most faithful in its allegiance
“to England.”
ANSWER TO THE “ GAZETTE.”— Continued.
(THE GazettE, June 28, 1888.)
Sir,—It would not be fair to be too exacting in the matter of editorials in the daily press, when we consider that the contributors have little time to go to the root of things. On the other hand, the consciousness of this want of preparation should counsel them at times. to be a little diffident, when, on the spur of the moment, they are called upon to write up a given theme. Then more than ever should they be chary in asserting that, the question ‘is much simpler than it is made to appear.
The writer of the Gazerre’s leader (June 22nd) does nt hesitate to solve in his off-hand way a question to which the ablest law-officers of England could find no legal solution for thirty years ; at the expiration of which they gave it up in utter desperation,
He does not question Mr. Mercier’s power ; he does not, he assures us, impugn the merit of the Society of Jesus, but he ‘merely desires
Ve °°? >
of ors the es. led be nde
p to b of ion
ires ires.
19
that the facts concerning the estates of the Jesuits in 1760 may be understood.”
Why, then, omit certain articles of the capitulation of Canada, and dismiss disdainfully all question of the position of the Jesuits of Canada at the time of the Conquest? Two points absolutely essential, not only tc the solving of the question, but to the bare understanding of it. And after a few disjointed quotations from the same capitulations and treaty, why triumphantly conclude. ‘ Thus it is manifest,” etc,
It is manifest that no judge, deputed to decide a simple matter of succession, would go so recklessly to work. He would at least call for allthe papers bearing on the subject. This the writer, I must charitably suppose, has not done, otherwise I would be forced to the conclusion that he has wilfully suppressed portions of the capitulation the more expeditiously to make his subject “ much simpler.”
An impartial judge would not conclude: “ Thus it is manifest that— the Jesuits were left under the terms of the capitulation, viz: to the pleasure of the King as regards their property,” when the contrary is expressly stated, and especially as what was refused in an article with the above limitation breathes not one single syllable with regard to property. 3
Neither would he say that the English law, as it then stood, refused liberty of worship to the Canadians, for he would have read up the subject and known that neither the common nor the penal laws obtained in the colonies.
He would not say that the Jesuits did not become British subjects, nor that their rules would not permit it, for both propositions are in point of fact untenable.
He certainly would not dogmatically assert that the law of the Society of Jesus is the will of the General, as the constitutions of the Jesuits say very much the reverse, and decree that the General must govern the society according to its institute.
He would not give prominence to the fact, as bearing on the question, that the Government of France suppressed the order in 1764 ; because that event took place later than several very solemn compacts, viz. : five years after the capitulation of Quebec, four after that of Montreal and the whole country, and one after the treaty.
He would be careful not to affirm that the bishops of France had represented to the Duc de Choiseul that the unlimited authority of the General was incompatible with the laws of France. A fair judge would have been deterred from making this assertion through honesty and love of truth, and not because he might reasonably surmise it to be just possible that some one among his hearers would rise and read him
ee
20
a chapter of French history ; recalling to his memory that on the 30th November, 1761, by order of Louis XV., fifty-one cardinals, archbishops and bishops met, under the presidency of Cardinal de Luynes, to HT: report on four points, the first of which referred to the advantages and Nie disadvantages accruing to the realm from the labors of the jesuits ; the HME fourth, what limits might be set to the General’s authority. For, to say the least, it would be an undignified rebuff to be told that, after a i month’s, study of the constitutions, with the exception of six of the i assembly, they unanimously repo:ted in favor of the Jesuits and of their institute ; and that feeble minority, in spite of Choiseul’s influence, could be brought to suggest but some slight modifications ; one alone, Francois de Fitzjames, bishop of Soissons, demanding, in favor of his Jansenist friends, the entire suppression of the Jesuits. It would indeed be a revelation if ‘the bishops of France” were to dwindle down and be condensed in the personality cf Fitzjames of Soissons. Mr. Editor, it was in an unguarded moment that the writer of your i leader hazarded that assertion. For he must have known that in some | library, on whose shelves is to be found a history treating of the sup- pression of the Jesuits, some busy-body would ferret out the letter (Paris, April 24,1774) of Christophe de Beaumont, Archbishop of Paris, in answer to Clement XIV’s brief. Its contents might impugn the writer’s historical accuracy, though I would be diffident in so doing, owing to the marked superiority of his tone. Here then is an extract, for I regret that the length of the letter prevents its being published in full: “ This brief is nothing more than a personal and private judgment * * * * QOn the other hand, Holy Father, it is not possible that I should endeavor to prevail upon the clergy to accept it. I would not be listened to on this point, were [ even so ill-advised as to wish to a extend to it. the the concurrence of my ministry, which I would thereby dishonor. The recollection is still too vivid of that general assembly, which I had the honor of convoking, in compliance with His Majesty's orders, for the purpose of enquiring into the necessity and utility of the Jesuits, the purity of their doctrine, etc. In undertaking such a task I would intlict a very notable injury onthe religion, the zeal, the
Sines Seas er eskciinin, hsaes aiden
7 — —-- ~ . ws be Ag SO Ta Se eemetoes.
the King their way of thinking concerning the very points which are at variance with, and which are reduced to naught by chis brief of destruction. It is true that, if it must be shown that it was necessary to go to such lengths, glossing over this destruction with the specious pretext of peace which could not co-exist with the society, that same pretext, Holy Father, at most would suffice to destroy all those other
| ie enlightenment and the rectitude with which those prelates laid before | |
21
bodies “jealous of it, and canonize the society without further proof :
. and it is that very pretext which authorizes us to form of the. brief in
question a most accurate but most damaging judgment.
‘* For what is that peace which is given out as incompatible with the society ? The thought alone is appalling, and we shall never understand how such a motive could have had strength sufficient ever to have induced your Holiness to adopt so hazardous, so perilous and so detrimental a measure. Certainly that peace which is irreconcilable with the co-existence of the society is that which Jesus Christ calls insidious, false and deceitful ; in a word, that to which the name only is given, but which is not peace: Pax, pax, et non erat pax ; that peace which vice and libertinism affect, recognizing it as their mother ; which is never allied to virtue, which on the contrary was ever inimical to piety. It is precisely against such a peace that the Jesuits, in the four quarters of the globe, have persistently declared a bitter war, relentless anc sanguinary, and waged with the utmost vigor and most complete success. It is against a peace like this that they have directed their vigils, their attention, their watchfulness, preferring painful labors to effeminate and barren ease. .It is to exterminate it that they have sacrificed their talents, devoted their zeal and the resources of their eloquence, desirous of barring every entrance by which it would force its way and work havoc within the very pale of Christianity ***** heedless of the greatest perils, counting on no other reward for their zeal and for their heaven-blest journeyings than the hatred of libertines and the persecutions of the wicked,” etc.. etc.
I am far from endorsing all that Christophe de Beaumont indites in his letter, but he certainly knew, with his hand on the pulse of the
’ Church of France, what were the dispositions of her prelates.
The society was suppressed thanks to the implacyble hostility and the vile calumnies of a Pombal anda Choiseul. The courts of Europe, deluded by these unscrupulous ministers, brought all the weight of royalty to bear upon the Holy See. But they, in their turn, were soon swept away by the breath of the Revolution, and Europe was deluged in blood, The awakening came at last, and thtn from every quarter of the habitable world poured in upon the Holy See supplications to restore the Order to its former state. It was not dead. At the beck of the Pontiff it came forth from the depths of Russia, equipped as of old and under the leadership of its General, the true successor of Ricci, who, heart broken, had breathed his last in the castle of San Angelo.
The words of Pius VII, in the bull So/icttudo Omnium show what the feeling was amongst the bishops not only of France but.of the Catholic world.
oienten
— ~ es ene ee ee SS SE ae
22
“¢ Earnest and persistent supplications for the restitution of the same Society of Jesus, supported by the all: but unanimous approval of the whole Christian world, reach us daily from our venerable brethren archbishops and bishops, and from every class and assembly of influential persons, especially since the report has everywhere gone abroad of the plentiful fruits which this society has borne in the above mentioned regions ” (Russia and the Two Sicilies).
A painstaking judge would hesitate to tell us that “in Canada the society ceased to exist as a corporation in 1760 by English law,” for it would imply that the King did a meaningless and silly thing, as the writey makes His Majesty say in 1775: We will ‘that the Society of the Jesuits be suppressed and dissolved and no longer continued as a body corporate and politic...but we think fit to declare our royal inten- tion to be that the present members of the said society, as established at Quebec, shall be allowed sufficient stipends,” etc. If its corporate life had become extinct in 1760 by English law, why attempt to kill it again in 1775 ?—though I question this latter date, as the royal instruc- tions of 1791 contain almost verbatim the same decree. In any case it is evident that if the society consented finally to die, it ‘died hard.”
It would be fairly impossible, Mr. Editor, to pick out the many other inaccuracies contained in the leader of the 22nd, for it would crowd out of your excellent paper much other interesting matter. However, before redeeming the promise made in my first letter, I desire to say that your leader of June 25th is conceived in a far more liberal spirit and by one better up in the matter. The-e are few inac- curacies, though what few there are are not unimportant. He admits that the question was a “‘ difficult problem,” and that “it is doubt!ess beside the question” to ask would the claim have been heard of had Canada remained a French province ? Without wishing to answer that question it would be well not to forget the “raison d’étre”’ of the
French concordat of 1801.
I. (1-4 see page &.) 5.
By title of “ conquest in general,” according to the Laws of Nations, a conqueror has no right to the private properties of citizens or of authorized corporations.
6. 7.
The opinion of all the great authorities on the Law of Nations is uniform on this point. There is not one discordant voice.
oO o&
23
De VaTTEL.—Law of Nations (Chitty) B. ITI, C. 13, sec. r99: ‘The conqueror, who takes a town or province from his enemy, cannot justly -acquire over it any other rights than such as belonged to the sovereign against whom he has taken up arms. War authorizes him to possess himself of what belongs to his enemy; if he deprives him of the sovereignty of that town or province, he acquires it such as it is, with -all its limitations and modifications.”
Section 200. ‘‘ One sovereign makes war upon another sovereign, and not against unarmed citizens. The conqueror seizes on the posses- ‘sions of the state, the public property, while private individuals are -allowed to retain theirs. They suffer but indirectly by the war; and the conquest only subjects them to a new master.”
De Martens.—Droit des gens moderne de !’Europe, vol. II. L. 8. ‘€. 4 section 280:—* L'action du vainqueur s’exerce directement sur les biens composant le domaine de I’Etat, indirectement sur les biens des particuliers. Le vainqueur s‘empare de toutes les ressources du gouvernement vaincu, de ses domaines et de leurs revenus ; il pergoit les contributions publiques, quand aux biens des particuliers, la pro- priété immobiliére n’éprouve aucun changement dans. ses conditions légales.”
PINHEIRO-FERREIRA (foot note to preceding passage of de Martens). ‘* Les contributions dont il est permis de frapper le pays conquis n’ont pas pour but d’assurer la conservation des propriétés de tout genre ; ‘car celle du public exceptée, iln’y en a pas qui ne se trouve garantie par les principes sacrés du droit des gens. que nous avons déduits précé- demment.”
DE MarTENS, Ibid. sec. 28t. On admet généralement, dans les usages modernes, que l’invasion et l’occupation militaire n’ont aucun effet sur la propriété des biens immeubles qui demeurent invariablement aux -anciens -détenteurs... La conquéte et occupation d'un Etat par ui -souverain étranger n’autorisent pas ce souverain a disposer par dona-
tion ou autrement du domaine conquis ou occupé.. Mais pour ceux -
qui font partie du dgmaine de 1|’Etat, si le vainqueur en a pris posses- sion méme temporaire, il peut en disposer.”
Twiss, Law of Nations, ch. 4, sec. 66. ‘A victorious nation in acquir- ing the sovereignty de facto over a country, from which it has expelled its adversary, does not acquire any other rights than those which belonged to the expelled sovereign; and to those such as they are, ‘with all their limitations and modifications, he succeeds by right of war.”
‘* So, likewise, the landed and immovable property of private indivi- duals is in general by the positive law of nations not liable to confisca- tion by a victorious enemy. A victorious nation, on the other hand, enters upon the public rights of the vanquished nation, and the national domain and the national treasure passes to the victor.”
KLuBER, part II, title 2, sec. 256: ‘‘ According to principles now followed in Europe, the mere loss of possession by the fortunes of war does not extinguish the rights of property... As for property and the ‘possession of immovable estate belonging to individuals, who have not violated the laws of war, the conquest of a country brings no change according to the modern laws of war.”
i i ope ese na
24
Mawnnino’s (Sheldon Amos) Commentaries on the Law of Nations. (London. H. Sweet, 1875, page 116.)
‘A conquering state enters upon the rights of the sovereign of a vanquished state ; national domain and national revenues pass to the victor ; but the immovable property of private individuals is, by the positive law of nations, not liable to.be seized by the rights of war... it has been for many years the constant usage of European warfare, and is now firmly established as part of the European I aw of Nations.”
WELDERBURNF. (Solicitor-General in 1772). Wedderburne was no friend of the Jesuits. By reading the pamphlets of the times, which, to- attain certain ends, were scattered profusely over the European con- tinent, he became imbued with the most silly prejudices and had conceived the most erroneous opinions concerning the Society of Jesus. The principle, however, which he lays down in his report to the King on the Canadian question is perfectly sound. The report bears date of the 6th December, 1772, and in it he says:
‘* No other right can be founded on conquest but that of regulating the political and civil government of the conntry, leaving to the indi- viduals the enjoyment of their property, and of all privileges not inconsistent with the security of the conquest.” (Christie, vol. I., p. 29.
It was afterwards in the application of this principle that he erred ; for evidently according to him the existence of the Jesuits in Canada ‘¢ was inconsistent with the security of the conquest.”
On the 26th May, 1774, in the House of Commons, he further developed his thought : ‘* You can preserve the acquisitions in time of peace, so as to’ give to the country subdued as much tranquility, as much property, and as much enjoyment of that property, as is con- sistent with your own safety ; and thisit is your duty to do. The principles of humanity, the principles of natural justice demand this at our hands, as a recompense for the evils of war; and not that we should aggravate those evils hy a total subversion of all those particular forms and habits, to which the conquered party have been for ages attached. Upon this principle, sir, 1 do maintain that it would have been most unjust to have relapsed into the barbarity of former ages ;. and this we should have done, if we had, with a rough stroke, said to the Canadians that the laws of Canada should be totally obliterated ;. that the rights, civil and ecclesiastical, of that country, should be framed according to those of England, as being better for that people than their own.” Caxendah=-Debstes of the House of Commons in 1774, Pages 51, 52.
THURLOw (Attorney-General) was a different sort of man, with broad views and a well balanced mind. His principles were as sound as those of Wedderburne. Being consistent he was not afraid to face them in their logical conclusions. On the 22nd January, 1773, his report on Canadian affairs was handed in to His Majesty. In it he rehearses the different opinions of jurists and endorses the following : ‘‘ They under- stand the right acquired by conquest, to be merely the right of empire, but not to é&ktend beyond that, to the liberty and property of indivi- duals, from which they draw this consequence, that no, change ought
25
to be made in the former laws beyond what shall be fairly thought necesssry to establish and secure the sovereignty of the conqueror. This idea they think confirmed by the practice of nations and the most approved opinions.” And further on: “ ‘The Canadians seem to have been strictly entitled by the jus gentium to their property, as they possessed it upon capitulation and treaty of peace, together with all its qualites and incidents, by tenure or otherwise ; for both which they were to expect Your Majesty’s gracious protection,
** It seems a necessary consequence that all those laws by which that property was created, defined and secured must be continued to them.” (Christie vol. I. pages 53 and 59.)
In his speech in the Commons on the 26th May, 1774, he clearly defines his opinion on the rights of conquest. ‘‘ Now, sir, a proclama- tion (7th October, 1763), conceived in this general form, and applivd to countries the most distant, not in situation only, but in history, character and constitution from each other, will scarcely, I believe, be considered as a very well studied act of state, but as necessarv imme- diately after the conquest. But, however proper that might be with respect to new parts of such acquisitions as were not peopled before, yet, if it is to be considered as creating an English constit™tion ; if it is to be considered as importing English laws into a country already settled, and habitually governed by other laws, I take it to be an act of the grossest and absurdest and cruellest tyranny that a conquering nation ever practised over a conquered country. Look back, sir, to every page of history, and I defy you to produce a single instance in which a conqueror went to take away from a conquered province, by one rough stroke, the whole of their constitution, the whole of their laws under which they lived, and to impose a new idea of right and
_wrong, of which they could not discern the means or the end, but
would find themselves at a loss and be at an expense greater than indivi- duals could afford, in order to inform themselves whether they were right or wrong. This was a sort of cruelty, which I believe was never practised, and never ought to be. My notion, with regard to this matter, I will venture to throw out as crude and general. To enter into the
‘subject fully would require more discussion than tne nature of such a
debate as this will admit of. My notion is, that itis a change of sovere- ignty. You acquired a new country ; you acquired a new people ; but you do not state the right of conquest as giving youa right to goods and chattels. That would be slavery and extreme misery. In order to make the acquisition either available or secure, this seems to be the line that ought to be followed; you ought to change those laws only which relate to the French sovereignty, and in their place substitute laws which should relate to the new sovereign ; but with respect toall other
laws, ad/ other customs and institutions whatever, which are indifferent
to the state of subjects and sovereign, humanity, justice and wisdom equally advise you to leave them to the people just as they were.” (Debates, etc., 1774, page 29, 30.)
“‘ If the English laws would be a prejudice to the Canadians it would be absurd tyranny and barbarity to carry over ail the laws of this country, by which they would lose the comfort of their property, and in some cases the possession of tt.” Debates, etc., 1774, page 32.) He
26
had in view especially the penal laws.
Much more might be given in the same strain from these authorities, but there must be an end to all things. Now no other conclusion can possibly be arrived at, from the foregoing extracts, save that by the rights of conquest in general, that is, of any conquest not limited or qualified by treaty stipulations, the property of individuals, and the Jaws which create and protect it are sacred and inviolable. That furthermore the sole measiire of the extent of the conquering sovereign’s rights is the extent of the rights of the conquered sovereign whom he succeeds.
What is said and the property of individuals holds good with regard to the property of bodies corporate. They exist before the law as a moral entity or person, with their rights, as to property, duly sanctioned by the sovereign.
Individuality and immortality : two essential properties of a body corporate.
‘‘ A corporation,” says Mr. Kyd, quoted by Angell and Ames, “ or body politic, or body incorporate, is a collection of many individuals united in one body under ‘special denomination, having perpetual succession under .an artificial form, and vested, by the policy of the law, with a capacity of acting, in several respects, as an individual, particularly of taking and granting property, contracting obligations, and of suing and being sued; of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers con- ferred upon it, either at the time of its creation or at any subsequeat period of its existence.” (Treatise on the law of private corporations aggregate by Joseph K. Angell and Samuel Aines. Introduction,z§ 2.)
Chief Justice Marshall, in common with other authorities, holds it to be ‘‘ an artificial being, invisible, intangible and existing only in con- templation of lav Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as identical to its very existence. ‘These are such as are supposed best calculated to effect the object for which it is created. Among the most important are immortality, and, if the expression may be allowed, individuality ; properties by which a perpetual succession of many persons are considered as the same, and may act as a single NALVIAUAL. vs eeseveree The great object of an incorporation is to bestow the charactor and properties of éndividuality on a collective and chang- ing body of men” (Ibid. sec. 3.)
Kyd’s definition is adopted verbatim by Chitty also. (Prerogatives of the Crown, ch. VIII, No. 2.)
eS
27 8. (a)
The Society of Jesus in Canada was a body corporate from 1678. Its right of property was protected by the Law of Nations.
That the Society of Jesus was a body corporate under French rule is undeniable. The Royal letters patent are still extant at Quebec and establish this fact. Chitty in his “ Prerogatives of the Crown,” etc., (ch. viti., edit. London, 1820, pg. 122', assures us that ‘‘ the exclusive right of the Crown to institute corporations and the necessity for its express or implied consent to their existence is undoubted. * * ‘The King’s consent to the formation of a corporation is expressly given in the case of his granting a charter. This need not be done by any par- ticular form of words * * * a gift of land from the king to the burgesses, citizens or commonalty, of such a place, was conceived to be sufficient to incorporate them under such collective name. Confr, Ibid, pg. 124.) Nor isit necessary that the charter should expressly confer these powers, without which a collective body of men cannot be a corporation, such as the power of suing and being sued, and to take and grant property ; though such powers are in general expressly given.” etc., etc.
The following is an extract of the diploma. or letters patent of Louis XIV, of May 12, 1678:
‘* Louis, par la grice de Dieu, Roy de France et de Navarre. A tous ceux qui ces présentes lettres verront, salut.
“Nos chers et bien aimez /es Religieux dela Compagnie de Jésus résidant en nostre pays de la Nouvelle France, nous ont fait remonstrer qu’en considération du zéle quils ont tesmoigné pour la conversion des sauvages, nos vice-roys, lieutenants généraux et gouverneurs du dit pays, ensemble les compagnies establies pour le commerce, leur ont donné en différents temps plusieurs terres dont ils ont jouy, sur partie desquelles ils ont fait construire les bastiments nécessaires pour leur collége, esglise, et communauté, dans la ville de Québec, les dites terres consistantes, scavoir (here follows the enumeration of seigneuries, etc). Et d’autant que les dites terres, li€ux, et bastiments n’ont pas été amortis, les exposants craignant d’étre troublez en la jouissance d’iceux, nous ont trés humblement fait supplier qu’1l nous plust les amortir, et leur permettre de les tenir en main morte et exempts de nos droits.
“A ces causes, voulant favorablement traiter les exposants, contri- buer autant qu’jl nous sera possible a la plus grande gloire de Dieu, et a l’établissement de Ja religion catholique, apostolique et romaine, dans le dit pays de Canada, et les obliger 4 continuer leurs priéres pour notre prospérité, et santé et la conservation de cet Estat, de nostre grace spéciale, pleine puissance, et autorité royale, nous avons agréé, confirmé et amorty, agréons, confirmons et amortissons par ces présentes signées par nostre main toutes ces terres et concessions cydessus déclarées... ensemble les bastiments construits sur les dites terres, sans que les supplians puissent jamais étre contraits de les mettre hors de leurs mains, ni qu’ils soient tenus pour ces dits héritages, lieux et droits, nous payer anciens devoirs et droits, donner homme vivant et mourant, faire foi et hommage, payer indemnités ou droits de
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28
francs fiefs et nouveaux acqueésts 4 nous et a nos successeurs Roys, dont nous les avons quittés et exemptés, quittons et exemptons.” &e., &e,
This instrument alone, without its being necessary for me to hunt up other documents, constituted the Socicty of Jesus a body corporate, and by granting the privilege of holding their property 7x mortmain constituted them a corporation for ever.
Therefore, as by the right of conquest in general, as laid down in the Law of nations, the rights of property of private individuals are secured, so also are the rights of the corporation of the Society of Jesus to these intents and purposes, holding property as an individual.
The letters patent of the French King a solemn contract of protection with the society. Its obligations binding on the King of England who supplants him.
I go further, and say that even were the laws of nations silent on the point of the inviolability of private property, establising as they do the principle that, at the conquest, the King of England succeeded the King of France in the sovereignty of these provinces, he succeeded hin) not only in all his prerogatives but also in all his obligations. The letters patent are a solemn contract, guaranteeing proteetion to the Society of Jesus. The King of England is equally bound by them. He accepted the sovereignty of Canada with all its limitations and modi- fications such as it was.
Documentary evidence of the exercise of corporate rights by the Society. of Jesus down to the very year of the capitulation of Quebec.
I may be asked if, in point of fact, the Jesuits exercised their fran- chise as a corporation down to the very period of the conquest? In answer I may state : Quebec capitulated on the 18th September, 1859, and I have lying before me atthe present writing an original document dated the 30th March of that same year. It bears the signature of the Superior of the society in Canada, that of his procurator. and the seal of the corporation, This instrument appoints the Sieur Mathieu Hianveu as assistant notary for their seigneuries of Notre Dame des Anges, St. Gabriel, Sillery and Belair, and enjoins on Paul Antoine Frangois La Nouillet, judge prevost, to see that Sieur Hianveu be duly qualified and sworn into office. Therefore, down to the conquest they remained a corporate body, which the King of England, neither by his own prerogative, nor by that.of the King of France, was empowered to destroy.
act
8. (a)
The royal instructions of 1791, to suppress the Jesuits, are a peremtory proof of their corporate exis- tence down to that date at least.
Though of but secondary importance, the date January 3, 1755, given in the Gazetre leader of the 22nd, does not seem to me correct, neither does that of 1774, given on page 4o of ‘* An accwunt of the endowments for education in Lower Canada, London 13th June, 1838, Norman and Skeen, printers.” ‘The author’s name is not mentioned, but it is known to be the work of Mr. Andrew Stuart (then a lawyer in Quebec) and of Will. Badgley.
Here are my grounds for contesting the accuracy of the date given. }t is a historical fact that on the 21st October, 1788, the committee of the Legislative Council, in their report to Lord Dorchester, declared that as the Jesuits had retained possession of their estates under the eye and with the sanction of the Crown, an enactment became necessary, whereby the King should confirm the Pope’s abolition of the.order, and declare its property vested in the Crown.
In his “ Institutions de histoire.” 1855, page 340, Bibaud, jeune, alludes to this report. The date of which, however, by a typographical error is given as 1785. ‘The same report of the Legislature council, with its correct date is discussed in the report of Alexander Gray and Jenkin Williams, 15 May, 1790.
(The French version of the report of 1824, page 103, gives the 18th May as the date of the Gray--Williams report).
Now, had the civil suppression of the Society of Jesus taken place in 1774, this report of the Legislative Council would lose its significance, and would have been a meaningless proceeding.
There is, however, a more positive proof that the date I give is the correct one. In the library of Parliament, Ottawa (E. No. 421) may be found a very useful repertory entitled ‘‘Chisholm’s Papers.” On page 151 there occurs this passage in the Royal Instructions of the
‘76th September, 1791: It is our will and pleasure... that the Society
of Jesuits be suppressed and dissolved, and no lo ger continued as a body corporate or politic, and all their possessions and property shall be vested in us for such purposes as we may hereafter think fit to divect and appoint ; but we think fit to declare our Royal intention to be that the present members of the said society as established at Quebec shall be allowed sufficient stipends and provisions during their natural lives.”
Were it established beyond cavil that in the year of grace 1791 an attempt at assassination was made upon the person of His Gracious Majesty George III., it would be a little more than strong presumptive evidence that his Majesty was yet alive in that year. Here we havea document emanating from the highest authority of the realm, ordering that the society of Jesuits be dissolved and suppressed, and no longer continued as a body corporate and politic. They, therefore, had con- tinued up to that date a body corporate. The same august authority
°
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30
declares it to be his intention that the present members of the said society, as established at Quebec, be allowed sufficient stipends, etc. This has very much the appearance of recognizing, in a public official document, the fact that at that time there existed a society established at Quebec, and that certain of His Majesty subjects were recognized members of that society. Would your contributor deem it too rash for me to conclude that not only before the conquest, but at the time of the capitulation of Montreal and the whole of the Canada, they were a body corporate, as provision is made for them as a body in that docu- ment of solemn import; and that for at least thirty-two years they continued a body corporate under English rule? What had the Jesuits done in the meantime to justify so unwarrantable an invasion of their civil rights of holding property etc, rights most solemnly guaranteed them at the capitulation of the country ?
In my next communication, Mr. Editor, I snall resume my line of reasoning as outlined in your issue of the 25th, continuing from the IX. heading, i. e., “‘ The Jesuits’ Estate are Church Property.”
Yours, etc., U. E..L.
ANSWER TO THE “ GAZETTE,”’— Continued.
(The Gazette, July 3 1888.)
To the Editor of the Gazette:
Sir,—Allow me to make a few remarks on your leader cf the 27th before I resume my argument on the Jesuits’ estates. And at the out- set it is encouraging to be assured ‘that there is nothing you desire more than the candid discussion of every point of this important ques- tion”. I promise you that I shall not touch upon any but ‘vital issues ”, provided no dissertations on subjects ad captandum be dragged in ; otherwise I cannot be expected to leave the public under a fa!se impression.
The writer of your leader of the 27th is considerate enough to style my elucubrations in the Star * a quagmire of irrelevant matter ”. Epi- gramatical, but not to the point. It would have been more so to have answered them before giving them hard names, I conceive that it is dangerous to venture incautiously on unsafe ground. For facilis descen- sus averni—but to extricate oneself? Surely the writer could not have had this in his mind’s eye?
31
Following the lead of English statesmen and jurisconsults, I deci- dedly differ from the writer, who, rather than face the inevitable, would bring his case into a court of his own choosing, and magisterially wave back the unanimous array of commentators on international and con- stitutional law. Municipal law would suit his purpose better ; perhaps he would prefer the police court. It would not perhaps be whoi!: out of place, as the person who executed the seizin at Quebec in 1800 signed himself Ja. Sheppard, sheriff.
The expedient is easily seen through; it is much easier to minimize than to answer. There where he assures us ‘every principle is disputed, this particular principle at least, that the rights of sovereignty exclu- sively are the conqueror’s ”, is disputed by no one responsible or “ irre- sponsible writer”. In such case pleaders, who expect a patient hearing, either adduce stronger authority or show that the principles or facts on which adverse decisions are based are flimsy or groundless.
We are willing to learn something at the writer’s school in the mat- ter of journalistic etiquette—we seldom rush into print. He, veteran that he is, has been bronzed under smiling rays of popular approval, which even now do not cease to beam upon him. But sometimes a patient is allowed to go off on a point of professional etiquette. Mean- while it is of all importance for me, I shall not say, to be formally introduced to an amiable adversary, but to ascertain on what ground he stands, otherwise the debate would be interminable. The way of putting a case, the same as to his intrinsic merits, should be quite dif- ferent before a Protestant and a Catholic public. There is no question, as far as Iam concerned, either of religious or party prejudice. Let your writer again consult my letter, and he will see that it was on the suppo- sition that my readers were of the same faith as myself that I referred them to a Catholic historical authority. Were they not Catholics, as the writer evidently is, since he deprecates the semi-Protestant method of investigation, my promise was simply to appeal to their reasoning faculties and their sense of justice. ‘This purpose I am carrying out, and would ere now have accomplished it had not érre/evant matter been brought up for discussion.
And since your writer leads me to the consideration of the ecclesias- tical aspect of the question, without deigning to reply directly to the insinuation that I ‘would array Pope against Pope or emphasize the ‘‘unworthy ” motives of Clement XIV., I would add that in the brief of suppression he has led us to understand that the motives of his action were not all enumerated, since he says: ‘* And urged by other motives which the laws of prudence and a wise administration of the universal Church suggest and which we keep looked within our breast.’
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32
A few paragraphs further on the Hoiy Father forbids *‘ und<r penalty of excommunication to us resetved and to our successors to dare to attack and insult, on the occasion of this suppression, either privately or publicly, orally or in writing, by discussion, obliquy or affront, or by any manifestation or contempt any one, and least ofall, those who were members of the society.”
If there be setret reasons of sta.e administration, there must needs be also secret reasons of Church administration. And while cordially agreeing with the writer that it is not becoming to affect more of Ca- tholicism than the Pope, I would say also that, in this matter, there is no need to be more of a Jesuit than the Jesuits themselves. The memory of Clement XIV, aspersed by Catholic and even some Pro- testant authors, has found no more fearless nor skilful defenders than the members of the Society. And if there is one point of history clearer than another, it is that for the members of a society whose only reason of existing was the good of holy Church, that same reason, that the destruction of their order would be of more profit to her, was sufficient to. reconcile them to their fate. When they heard from the lips of the Supreme Pontiff, that in face of such fierce opposition their usefulness was gone for the nonce, without one word of murmur or complaint ‘they gently submitted to the decree of destruction, ascribing, as I now do, but one great impelling motive for the act, the desire in the heart of the Pontiff to serve the Church of God.
I reserve a few more points of the same leader for future remarks.
9.
The Jesuits’ Estates are Church Property.
To ascertain what was the nature of the Jesuits’ estates, it is indis- pensable to refér to the constitution of the Catholic Church as it was at the time of the conquest and is still. It might not seem necessary to many to prove that the Jesuits’ estates were church property ; but the leader of the 22nd makes a sad medley of canon law when acknow- ledging that no prescription can run against the Chutch, he adds: ‘‘ But the order of Jesuits is not the Church of Rome. The Church of Rome existed before the Jesuits, it existed during their suppression, etc.” Very good, all that may be granted, and still it would remain true that the Jesuits’ estates are church property. To give the why and the wherefore would lead me too far. But to assure ourselves of the fact we have but to open any treatise on canon law. Let us take Maupied for instance (Jur. Can. Comp., P. IV, L. 12, c. 5, 4 to) :
33
“ Dividuntur etiam beneficia in szecularia et regularia. Szecularia
‘sunt, que non nisi secularibus clericis, regularia, qua tantum regula
ribus tribuuntur, unde eorum nomen tractum est. Hinc abbatiz, ceteraque officia claustralia suis propriis donata re iditibus, beneficia sunt regularia, ac talia generatim censentur omnia, que a regularibus regi consueverunt. ”
I scarcely expect to see any one denying that the Jesuits, a men-
-dicant order, are regular clerks of the Church of Rome. Their estates
therefore are classed among “ bona ecclesiz ” as regular benefices.
9. (a and b).
Amherst in his endeavors to secure the Jesuits’ estates obtained from the “ avocats de Paris” a “consultation” in which these unscrupulous mémbers of the French law made, generally speaking, mince-meat of canon law so great was their zeal for their client. I have a full copy before me, and the document is dated 12th November, 1788. They are, however, therein constrained to acknowledge that ‘‘ He (the King of England) cannot take possession of Canadian benefices if any were annexed to the colleges, at the time of the Jesuits, since he has bound himself by the treaty of peace to follow, with regard to Canada, the laws which governed that province before the conquest, and that these laws did not sanction the holding of these benefices by the King of France, for whom, in the enjoyment of these rights the King of Great Britain is substituted. Thus the King of England can neither take them himself nor consequently grant them to Lord Amherst.” In other words, the King of England succeeds the King of France in the sov- ereignty of the country, “with all its limitations and modifications. ” The right of the King of France over Church property was /imited ; so in the same degree is that of the King of England.”
10.
The general right of Conquest imposes the duty of maintaining the existing laws of property.
This proposition is but a corollary of what has been stated and sus- tained by legal authority under heading 6 and 7, and of what will be further developed under heading 12. If, however, something more precise be required I am ready to undertake to point out the logical NEXUS.
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Il.
The Quebec Act, inasmuch as it restricts treaty stipula- tions, is ultra vires. It in no wise affects vested rights; hence inapplicable to the case.
A right may be either legal or legitimate. Laws may be framed which invade the rights of private citizens or corporations so as forcibly to disposess them of their rightful property, and may be carried into effect in spite of all remonstrance. Their title ceases to be legal, as it is ignored by the unjust law, but it does not cease to be legitimate, as it based on justice.
The Act 14 George III, ch. 83, otherwise the “Quebec Act,” is a striking instance of this. It was passed in 1774, and in its Art. VIII,. it decrees :—‘ It is also established by the authority aforesaid that all: the Canadian subjects of His Majesty in the said Province of Quebec (religious orders and communities alone excepted) may also preserve ‘“eir properties and possessions, etc., etc.”
But as I have clearly proven that the Jesuits, by the laws of nations, (and will prove by the capitulations and by the treaty) had a full right in justice to their property and estates, the 8th article of this act is frus+ trated by its third, which I give in French, as I have not at hand the English version :
** Pourvu aussi, et il est établi, que rien de ce qui est contenu dans. cet acte ne s’étendra, ou s’entendra s’étendre 4 annuler, changer ou alterer aucuns droits, titres ou possessions, résultant de quelque con- cession, ou d’autres que ce soit, d’aucunes terres dans la dite province, ou provinces y joignantes, et que les dits titres resteront en force, et auront le méme effet, comme si cet acte n’efit jamais éié fait. ”
So that, as far as concerns the rights of the Jesuits, we are authorized to look upon this act as if it never existed, or at least as inapplicable.*
But it is moreover u/tra vires, if it mean that the Jesuits are not to be preserved in their property ; for a statute cannot annul a treaty. Chief Justice Jay, a most eminent jurist, in the celebrated case of Henfield, tried in the city of Richmond, on the 22nd May, 1793, observed: ‘‘ Treaties betwen independent nations are contracts or bargains which derive all their force and obligations from mutual consent and agreement and consequently, when once fairly made and
* We might have added that the clause in parenthesis, being merely negative, could not affect the rights of the possessors, as it confers the estates on no others,
35
properly concluded, cannot be altered or annulled by one of the parties without the consent and concurrence of the other. Wide is the dif- a ference between treaties and statutes—we may negotiate and make: contracts with other nations, but we can neither legislate for them nor’ they for us to vacate or modify treaties at discretion. ‘Treaties, there- fore, necessarily become the supreme law of the land. The peace,
d ‘prosperity and reputation of the United States will always greatly ly depend on their fidelity to their engagements, and every virtuous i 0 citizen (for every citizen is a party to them) will concur in observing | 1, and executing them with honor and good faith, and that whether they e, be made with nations respectable and important, or with nations weak a and inconsiderable, our obligation to keep our faith results from our e a having pledged it and not from the character or description of the state- va or people to whom neither impunity nor the right of retaliation can: all: sanctify perfidy, for although perfidy may deserve chastisement, yet ec it can never merit imitation. ” ve If, therefore, the act of Quebec is to be read as a step towards the gradual absorption of the Jesuits’ estates, it is a clear case of infringe- as, ment of treaty stipulations, and as De Vattel said: ‘‘ The following in rule is better calculated * * * at once to cut short all chicanery. ase If he who could and ought to have explained himself clearly and fully he: has not done it, it is the worse for him. He cannot be allowed to in-
troduce subseguent restrictions which he has not expressed * * * The equity of this rule is glaringly obvious, and its necessity is not less.
ns: evident. ” (Chitty’s De Vattel. B. II, ch. XVII, sec. 264.) (I prescind beta : entirely from the known maxims of Canon Law, with regard to Church ce, property.) Chitty himself confirms this point. See Prerogatives, etc., et ch. III, pg. 20, edit. London, 1820: ‘“ Nor can the King legally dis- regard or violate the articles on which the country is surrendered or | ed ceded ; but such articles are sacred and inviolable according to their b an true intent and meaning. ” Page 30: ‘* The King may preclude himself ie ms from the exercise of his prerogative legislative authority in the fi rst se ty. instance over a conquered or ceded country, by promising to vesi in P : it an assembly of the inhabitants, and a governor, or by any measure f b of eae ce if of a similar nature, etc.” Therefore a fortiori he may preclude himself i - from confiscating private property, even had he a right otherwise to i ual do so. This he did, through his general, at the capitulation of Canada. ; nd i : ive, “y f
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12.
By title of the Conquest of Canada in particular the right of the Jesuits to their property, ‘was unassailable.
If the case in favor of the Jesuits be already so strong, supported by the laws of nations, defining the rights of conquests in general, it gains a hundred-fold when we com2 to deal with the inviolability of their property as guaranteed by the capitulations and treaty.
I shall quote here mainly from English authorities, as the question, if not a domestic one, is one I would not like to have settled by the opinion of foreigners, lest they be deemed partial.
Let me first set before the eyes of your readers extracts from the capitulations and the treaty, which have some bearing on the question. I have not at hand the English version of the Capitulation of Quebec, so I am obliged to quote from the French.
CAPITULATION DE QuEBEc (18 septembre 1759): Art. II. Que les habitants soient conservés dans la possession de leurs maisons, biens, effets et privileges —Accordé en mettant bas les armes.
Art. VI. Que l’exercice de la Religion Catholique, Apostolique et Romaine sera conservé, que l’on donnera des sauve-gardes aux mai- sons ecclésiastiques et religieuses, particuliérement a Monseigneur lEvéque de Québec, etc., etc.—Libre exercice 4 la Religion Romaine, sauve-gardes 4 toutes personnes religieuses, ainsi qu’a Monseigneur ’Evéque, qui pourra venir. exercer librement et avec décence, les fonctions de son état, lorsqu’il le jugera a propos, jusqu’a ce que la possesion du Canada ait été décidée entre Sa Majesté Britannique et Sa Majesté Trés Chrétienne.
CAPITULATION OF MONTREAL (and of the whole province, 8th Sept., 1766): ‘Art. XXVII. The free exercise of the Catholic, Apostolic and Roman Religion shall subsist entire, etc., etc.
» Answer—‘“Granted as to the free exercise of their religion. The obliga- tion of paying tithes to the priests will depend on the King’s pleasure.
“ Art. XXXII. The communities of nuns shall be preserved in their constitution and privileges. They shall be exempted from lodging any military, and it shall be forbid to trouble them in their religious exer- cises, or {o enter their monasteries ; safeguards shall even be given them if they desire them.
Answer—“ Granted.
| 37 } “ Art. XXXIII. The preceding article shall likewise be executed H with regard to the communities of Jesuits and Recollets, and to the t house of the priests of St. Sulpice at Montreal. This last, and the by he Jesuits, shall preserve their right to nominate to certain curacies and t missions, as heretofore. # Answer—* Refused till the King’s pleasure be known. y “Art. XXXIV. All the communities, and all the priests shall pre- he ted | serve their movables, the property and revenues of the signiories |, it and other estates which they possess in the colony of what nature “of soever they be, and the same estates shall be preserved in their privi- leges, rights, honors and exemptions. 1 on, Answer—“ Granted. bs the “ Art. XXXV. If the canons, priests, missionaries, the priests of the Seminary of the foreign missions, and of St. Sulpice, as well as the the Jesuits and the Recollets, choose to go to France, passage shall be | ion. granted them in ‘His Britannic Majesty’s ships, and they shall all have | Dec, leave to sell, in whole or in part, the estates and movables which they i possess in the Colonies, either to the French or to the English, without the least hindrance or obstacle from the British Government. > les ‘“¢ They may take with or send to France the produce of what nature { eAs) soever it be of the said goods sold, paying the freight as mentioned in .e the 26th article, And such of the said priests who choose to go this . gt year shall be victualled during the passage at the expense of His Bri- We tannic Majesty, and shall take with them their baggage. ds Answer—*“ They shall be masters to dispose of their estates, and to bine, send the produce thereof, as well as their persons and all that belongs ' haces to them, to France. : : les “Att. XXXVII. Lords of manors (les seigneurs de terre), military ela and civil officers, etc., etc., shall preserve the entire peaceable property bgt and possession of their goods movable and immovable, merchandise, etc., shall keep and sell them as well to the French as English ; to take es ept., : away produce of them . . . . whenever they shall judge proper Ei tolic to go to Franee, paying freight as in the 26th article. e Answer—‘ Granted as in the 26th article. ie liga- ‘Art. XLVI. Inhabitants and merchants to enjoy all the privileges i Lure. granted to subjects of His Britannic Majesty. heit Answer—“ Granted. any “ Article L. The present capitulation shall be inviolably executed in t 5 bxer- . all its articles, and bona fide on both sides, notwithstanding any infrac- i iven tion and any other pretext, with regard to preceding capitulations, and
without power to make reprisals. Answer-——‘‘ Granted. ”
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TREATY OF PEACE— 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 order that his new Roman ‘Catholic subjects may profess the worship of their religion according ito the rights of the Roman Church, as far as the laws of Great Britain permit. ”
“‘ His Britannic Majesty also agrees that the French inhabitants, or others, who had been the subjects of the Most Christian King in ‘Canada, may retire with all safety and freedom, wherever they shall think proper, and may sell their estates, provided it be to subjects of His Britannic Majesty, and bring away their effects as well as their persons, without being restrained in their emigration, under any pre- tence whatsoever, except that of debts or of criminal prosecution ; the term limited for this emigration shall be fixed to the space of eighteen months, to be computed from the day of the exchange of the ratifica- tion of the present treaty. ”
I shali be as concise as the subject will allow in reasoning on the text of the foregoing documents.
In the 2nd Art. of the capitulation of Quebec ‘ The inhabitants (no exception whatever being made detrimental to the rights of the Jesuits to their property) are to be preserved in possession of their houses, goods, effects and privileges. ”
In the 32nd, 33rd and 34th Art. of the capitulation of Montreal, and -of the whole province, communities are mentioned three times. In the two foremost articles, certain privileges are granted and refused to certain specified communities. In the last mentioned. article certain ‘privileges are secured to all the communities alike, in contradistinction ‘to what was refused and granted in the two preceding articles. In other ‘words, all communities and all the priests shall preserve their move- ables, the property and revenues of the Seigniories, and other estates which they possess in the colony of what nature soever they be, etc. The Jesuits forming a community and being priests, and not being de facto formally excluded (which they could not be de jure accordi:g to the laws of nations’, are entitled to the full befiefit of this article.
What was refused with a proviso in the XXXIII Article of the Capitulation of Montreal ? Interpretation of Treaty Stipulations.
You will no doubt say that Art. 33 refuses them certain privileges till the king’s pleasure be known. I shall not ask here, after what I have already said, what right Amherst had to refuse any one of the points mentioned. But I maintain that the refusal, with its proviso,
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39
falls upon the latter part of the 33rd article.
That the refusal fell upon the last clause is certain. For Burton, the Lieut.-Governor of Three Rivers, wrote to Amherst but two months after the capitulation, the 19th of November, to complain that F. de Glapion had ordered Roubaud, who had disgraced himself with the Indians of St Francois, to make room for a more worthy successor, “« without,” Amherst says, “ having given the least notice. As soon as I heard of it I put a stop to it, looking on it as a breach of the 33rd and goth Art. of capitulation.” (See Canadian Archives, Ottawa, B, 2I—T, p. 33).
The XL. Art.closes thus: “ The actual vicars-general, and the bishop, when the Episcopal See shall be filled, shall have leave to send them (the Indians) new missionnaries when they shall judge it necessary.”
“* Answer—Granted, except the last article which has been already refused.”
The refusal did not fall upon the first part of Art. 33, if it must be distorted so as to mean that the Jesuits could not continue to hold their estates (which interpretation would be indeed overstrained) for the reason that after the 34th Art. Amherst simply wrote “ Granted,” whilst if the above interpretation is to be maintained, he should have written: ‘‘ Granted, except for the Jesuit community, holding their estates, which was already refused in the 33rd Art.”
Now, putting the thing af its worst, what, according to the canons laid down for the interpretation of treaties, was refused with a proviso in the 33rd. art. ?
Grotius gives this canon : ‘ Voici encore une régle qui est fréquem- ment d’usage dans l’interprétation des Traités de Paix. ‘Toutes les fois qu’on se rapporte sur certains articles, 4 quelque article précédent, ou a quelque ancien Traité auquel on renvoie, toutes les qualités, ou les conditions exprimées dans Varticle précédent ou dans l’ancien Traité, sont censées répétées comme devant avoir lieu dans celui dont il s’agit” (Grotius, liv. II, chap. XX, sec. XXIV, No. 1.) We have simply to repeat the Art 32, adapting it to the Jesuits, etc. ‘ The
communities of Jesuits, Recollets and Sulpicians shall not be preserved in their constitution and privileges (the /olding of property is a right.) .
They shall not continue to obsetve their rules. They shall not be ex- empted from lodging any military, and it shall not be forbid to trouble them in their religious exercises,or to enter their monasteries ; safeguards
‘shall not be given them when they desire it. The Sulpicians and the Jesuits
shall not preserve their right to nominate to certain curacies and mis-
‘sions as heretofore.” Though the whole of this in its complex is pal-
pably absurd, as the refusal may fall on one clause only, no mention is
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made in it of their not being preserved in the peaceable possession of
their estates. I said, taking the thing at its worst, which the conquered are cer- tainly not obliged nor the conqueror allowed to do:
‘*¢ Lorsqu’il y a quelque chose de douteux et d’ambigu dans une clause l’interprétation doit se faire plutét au préjudice qu’a l’avantage de celui qui a lui-méme prescrit les conditions du Traité. (Note.) C’est la maxime que posait autrefois Hannibal: st guidem ejus qui dat, non qui petit, conditiones dicere pacis. C’est-a-dire, pour l’ordinaire, du plus puissant, de méme que les articies d’un contrat de vente s’ex- pliquent au préjudice du vendeur. (Note.) Cela est décidé par le Droit Romain : Veteribus placet, pactionem obscuram, vel ambiguam venditori et gut locavit, nocere; in quorum fuit potestate legem aperti- us conscribere. En effet il pouvait l’expliquer plus clairement, s’il ne l’a pas fait, tant pis pour lui. L’autre était en droit d’interpréter a son avantage des termes et des expressions susceptibles de plusicur sens. On peut rapporter ici ce que dit Aristote : Qu’en matiére d’amitiées contractées par un principe d’intérét, l’utilité de celui qui regoit est la mesure de ce qui est da.” (Grotius, I iv. 11, ch. XX, sec. 26.)
De Vattel, is equally emphatic in the rule he gives: ‘ In case of doubt, the interpretation goes against him who prescribed the terms of the treaty, for as it was in some measure dictated by him, it was his own fault if he neglected to express himself more clearly, and by ex- tending or restricting the signification of the expressions to that mean- ing which is least favorable to him, ‘we either do him no injury, or we only do him that to which he has wilfully exposed himself ; whereas, by adopting a contrary mode of interpretation, we would incur the risk of converting vague or ambiguous terms into so many snares to entrap the weaker party in the contract, who has been obliged to subscribe to what the stronger had dictated.” (Chitty’s de Vatte/, Law of Nations, B. IV. Ch. IIL., sec. 32.)
“ Articles of a treaty stand sometimes in need of interpretation ; in which case the rule we have already given elsewhere must be first ob- served. To wit, the more favorable the thing is the more should the meaning of the terms be extended ; on the contrary, the less favorable the more should the sense be restricted. Considering mere natural law, there is nothing more favorable than that which tends to secure to each one his own, or what he has a right to. Thus ambiguous clauses should be explained after this fashion, that he whose cause is just, should lose nothing, etc.” (Grotius B. H., ch. XX., sec. r1, N. 1.2.)
Of course, I do not expect that there,will be any quibbling concern- jng the term ¢reaty in the foregoing quotations, as we are here discuss- ing a capitulation. ‘They are certainly not identical in every case, but are so taken in the matter under consideration, Itisevident fromthe: - following :
41
“ It is very certain, that, in order to discover the true meaning of the contract, attention ought principally to be paid to the words of the promising party. For he voluntarily binds himself by his words ; and we take for true against him what he ‘has _ sufficiently declared. This question seems to have originated from the manner in which conven- tions are sometimes made—the one party offers the conditions and the other accepts them; that is to say, the former proposes and he requires that the other shall oblige himself to perform, and the latter declares the obligation into which he really enters. Ifthe words of him who accepts the conditions bear relation to the words of him who offers them, it is certainly true that we ought to lay our principal stress on the expressions of the latter, but this is because the person promis- ing is considered as merely repeating them in order to form his pro- mise. The capitu/ations of besieged towns may here serve us for an example. The besieged party proposes the conditions on which he is willing to surrender the place; the besieger accepts them; the ex- pressions uf the former lay no obligation on the latter, unless so far as he adopts them. He who accepts the conditions is in reality the pro- mising party, and it is in his words that we ought to seek for the true meaning of the articles, whether he has himself chosen and formed the expressions, or adopted those of the other party, by referring to them in his promise. But we still must bear in mind the maxim above laid down, viz., that what he has sufficiently declared is to be taken.as true against him.” (Chitty’s de Vattel, B. II., ch. xvii, sec. 267.)
This shows that what I have said is applicable indiscriminately to treaties and to cafpitu/ations, and, moreover; further confirms my point ; for what the besieger has sufficiently, nay very distinctly de- clared in the 34 art., I take to be true against him, viz., that with all other communities the Jesuits were to preserve the property and reve- nues of the Seigniories and other estates, etc., and we conclude with De Vattel that : “ We ought to interpret his obscure or equivocal ex- pressions in such a manner that they may agree with those clear and unequivocal terms which he has elsewhere used, either in the same deed or on some other similar occasion.” (Ibid. 8. II. ch. XVIL., $ 284.)
Brought up in the admiration of England and of everything English, my first impressions of her chequered history were that never had she, nor never was she capable of violating her sacred promises once duly pledged. My boyish ideas, as those, no doubt, of the young genera- tion rising around us, though net formulated with all the precise- ness, of a De Vattel, might, however, be rendered in his words :
“ Let us simply observe, that an evidently false interpretation is the grossest imaginable violation of the faith of treaties. He that resorts to such an expedient,either impudently sports with that sacred faith,or evin- ces his inward conviction of the degree of moral turpitude annexed to the violation of it; he wishes to act a dishonest part, and yet preserve
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42
the character of an honest man ; he is a puritanical impostor, who ag- gravates his crime by the addition of a detestahle hypocrisy. * * *”
“ Our faith may be tacitly pledged as well as expressly ; it is suffi- cient that it be pledged, in order to become obligatory ; the manner can make no difference in the case, the tacit pledging of faith is founded on a tacit consent ; and a tacit consent is that which is, by fair * 71c- tion, inferred from our actions. Thus, as Grotius observes (1 ic. 24; sec. I), whatever i is included in the nature of certain acts hich are agreed upon is tacitly comprehended in the agreement, or in other words, everything which is indispensably necessary to give effect to the articles agreed on is tacitly granted.” (Chitty’s de Vattel—Law of Na- tions, B, Il. ch. 15, sec. 233).
What England owes to the descendants of the heroic handful, headed ly de Montcalm and de Levis, who abandoned by their own mother country, hoped against hope, and defended to the last their hearth- stones and their altars, must be defined not by the Treaty, taken alone, but by Treaty and Capitulations taken in the coiaplex. For the latter are as sacred as the former :
* Since the general of an army and the Governor of a town t be naturally invested with all the powers necessary for the exercis eir respective functions, we have a right to presume that they pcex«sess those powers, and that of concluding a capitulation is certainly one of the number, especially when they cannot wait for the sovereign’s order. A treaty made by them on that subjet is therefore valid and binds the sovereigns in whose names and by whose authority the respective com- manders have acted.” (Chitty’s de Vattel, B. III; c. XVI, sec. 261).
Their articles are’ not cancelled by a definitive treaty unless it be clearly so stated and agreedupon. “ In things favorable (in interpret- ing treaties) it is better to pass beyond that point, than not to reach it ; in things odious, it is better not to reach it than to pass beyond it. (Ibid. B., II; c. 17; sec. 300).
*‘ Whatever tends to change the present state of things is also to be ranked in the class of odious things ; for the proprietor cannot be de- prived of his right, except so far, precisely, as he relinquishes it on his part; and in case of doubt, the presumption is in favor of the posses- sor. It is less repugnant to equity to withhold from the owner a pos- session which he has lost through his own neglect, than to strip the
‘ just possessor of what lawfully belongs to him. In the interpreta-
tion, therefore, we ought rather to hazard the former inconvenience than the latter. Here also may be applied, in many cases, the rule we have mentioned in section 301, that the party who endeavors to avoid a loss has a better cause to support than he who aims at obtaining an advantage.” (Ibid. sec. 305).
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43
By whom the wrong was perpetrated.
These, Mr. Editor, are no doubt your sentiments also, and those of the honest public. And if any of us were called upon to act as arbi- ters in a case in which we have no interest at stake, our natural sense of equity would supply our deficiency in technical training, and prompt us to adjudicate according to these notions.
And no doubt we all thought that no reproach could be laid, on that score, at the doors of our own Mother Country. At least it was my own settled conviction, until, in studying more closely the history of this colony, 1 was rudely startled by the fact that an injustice had been done by some one in her name. It was not done by the law officers in England, who for thirty years refused to legalize the proposed spo- liation, avowing that they could not determine over what properties of the Order of Jesuits His Majesty might claim full control, and which he could consequently legally grant to Lord Amhert’s heirs, The ini- quity was consummated on the advice and with the concurrence of a handful of men within the limits of this province, men who had not at heart, the true interests of their sovereign nor of their country.
To my mind the »eaning of the capitulations and treaty has always been perfectly clear, and if I have gone into these considerations, it is rather out of deference for a preconceived notion, that as the estates were taken by the Government, the capitulations or treaty must in some way have sanctioned the seizure.
I would say that Amherst, a blunt soldier, knew and cared very lit- tle about the constitution and rules of the Jesuits, nor was he a man to wish uselessly to molest them in their religious exercises. But he needed barracks for his troops, and he, with others, fondly entertained the hope, which events proved to be delusive, of seeing the realization of a pet plan of the Government, that of supplanting the bishops or ecclesiastical authorities in the appointment to benefices. This was
all he wished to secure in his conditional refusal of the thirty-third
article.
English Authorities on the rights of Religious Orders in Canada to their property as secured by treaty.
These are my own personal conclusions from the canons concerning the interpretation of treaties ; but I promised to quote our own Eng- lish authorities on what was and what was not stipulated in the same
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capitulations and subsequent definitive treaty. And in this I want my purpose to be clearly understood, for I maintain that even had the King of England the power, by his mere prerogative, on the occasion of the conquest, to confiscate the Jesuits’ estates, which he had not, he clearly yielded that power through his general and plenipotentiary.
THURLOw—(Report to His Majesty, 22 January, 1773.) ‘‘ On the 8th of September, 1760, the country capitulat.d in terms which gave to Your Majesty all that belonged to the French King; and preserved all their property, real and personal, in the fullest extent, not only to private individuals, but to the corporatioa of the West India company, and to the missionaries, priests, canons, convents, etc., with liberty to dispose of it by sale if they should want to leave the country. The free exercise of their religion by the laity, and of their function by their clergy, was also reserved.”
“« The whole of these terms were stipulated on the roth of February 1763, in the definitive of peace, etc.” (Christie, Vol. 1, pg. 48.) Again: ‘ . and if this general title (rights of conquest as de- termined by the Law of Nations) tosuch moderation could be doubted, they” (the jurists whose opinion he endorsed) ‘look upon it to be a necessary consequence of the capitulation and treaty alluded to before, by which a large grant was made to them of their property and per- sonal liberty, which seem to draw after them the laws by whieh they were created, defined and protected, and which contain: all the idea they have of either.” (Ibid. pg. 53.)
Though I am fully alive to the fact that this communication is al- ready voluminous and the quotations copious, I cannot pass over in silence the closing passage of his report :
“‘ Although the foregoing observations should be thought just, as a general idea, yet circumstances may be supposed, under which it would admit some exceptions and qualifications. The conqueror succeeded to the sovereignty in a title at least as full and as strong as the con- quered can set up to their private rights and ancient usages.
‘* Hence would follow every change in the form oi: Government which the conqueror should think essentially necessary to establish his sovereigt: Authority and assure the obedience of his subjects, This might possibly produce some alteration in the laws, especially those which relate to crimes against the state, religion, revenue and other articles of police, and in the form of magistracy.
** But it would also follow that such a change should not be made without some actual and urgent necess:ty, whict: real wisdom could not overlook or neglect; not that ideal necessity which ingenious spe- culation may always create by possible supposition, remote inference and forced argument ; not that necessity of assimilating a conquered country, in the article of laws and government to the metropolitan
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state, or to the older provinces which other accidents attached to the empire, for the sake of creating a harmony and uniformity in the sev- eral parts of the empire, unattainable and, as I think, useless if it could be attained ; not the necessity of stripping from the lawyer’s argument all resort to the learned decisions of the Parliament of Paris, for fear of keeping up the historical idea of the origin of their laws ; not the ne- cessity of gratifying the unprinciple and impracticable expectations of those few among your Maijesty’s subject who may accidentally resort thither, and expect to find all the different laws of the different places from which they come; nor, according to my simple judgment, any species of necessity which I have heard urged for abolishing the laws and government of Canada.” (Ibid. pg. 61.)
Here are the broad views and sound principles of the man, whose erudition and manliness raised him later on to the peerage. In June, 1778, he succeeded Lord Apsley as lord high chancellor of England.
His reportis the outcome of reflection and research. In it the warmth of his expresssions is tempered by the thought that he is ad- dressing his sovereign, But if we wish to measure the depth of his convictions. we must listen to him on the floor of the house, endeavor- ing to safeguard the honor of England and the inviolability of treaty stipulations :
“When it (Canada) was taken, gentlemen will be so good as to re- collect upon what terms it was taken. Not only all the French who resided there had eighteen months to remove with all their moveable effects, and such as they could not remove, they were enabled to sell, but it was expressly stipulated that every Canadian should have the full enjoyment of all his property, particularly the religious orders of the Canadians, and that the free exercise of the Roman Catholic reli- gion should be continued. And the definitive treaty of peace, if you examine it as far as it relates to Canada, by the cession of the late King of France to the Crown of Great Britain, was made in favor of property ; made in favor of religion ; made ¢” favor of the several reli- gious orders.” (Cavendish—Debates, etc., 1774. pg. 27, 28.)
There is a true ring of conviction in these words, and no room for doubt or hesitancy ; yet in them is embodied the legal opinicn of the highest authority on these matters in England at the time in which they were uttercd. And how can he speak so positively of the treaty, as confirmatory of the capitulation. since the divers. articles ofthe latter are not rehearsed in full, and the good pleasure of the King has appa- rently not been made known as to several of the articles? The King’s silence is rightly interpreted to mean that he can take no exception to one who signed, in his name, without overstepping his powers, arti- cles of capitulation which become then inviolable. ‘Things remain as
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i ti ditio possidentis.
» i i However this right of possession is indirectly confirmed by the i treaty, when for the Jesuits and others it was made facultative or i : optional to sell their estates. They were not, of course, obliged to do ii ah so, but de facto the Society of Jesus, on the 5th May, 1764, sold 172
arpents, a large portion of St. Lawrence ward in Montreal, to sieur Plessis Belair (See Terrier des Seigneurs de Montréal, at that date), 4 and this sale was effected with due authorization. ‘ Vente par le Supé- aed rieur des Jésuites de la mission de Montréal, autorisée par acte de jus- tice 4 Charles Plessis Belair 1° d’une terre, etc.” (See Canadian Ar- chives, Ottawa, series Q., vol. 50, A. page 188.) + Another contract of donation was passed by the Jesuits in favor of Hei the Ursulines of Quebec as late as the 24th April, 1788. (See report “a t 1824, page 123). ; | Pr In the report of two commissioners of the nine appointed to ascer- ‘ tain, among other points, what portion of the Jesuits’ estates the King might in justice grant to Lord Amherst, and as rehearsed in the report of Alexander Gray and J. Williams, it is said: ‘ Ils (les com- Pa missaires) observent aussi qu’il est de notoriété publique que par diffé- ae rents jugements des cours de justice en cette Province ils (les Jésuites) hae! ont été maintenus dans leur droits, et qu’a leur connaissance ils conti- i nuent a posséder toutes les dites terres, 4 l’exceptien d’une partie du Wes Collége de Québec, maintenant occupé comme magasin des provisions i du Roi, et comme casernes pour une partie de la garnison.” (Rap. ti 1824, p. 93). Hi Nor can any adverse conclusion be drawn from the clause in the : treaty, even if it affected the matter in hand, and which provides for ’ the execution of the terms of the treaty “ as far as the laws of Great 3
Britain permit.”
| le English penal and common law as such do not hold in the Colonies.
For the penal laws had no existence whatever in Canada. Chitty goes ee still further :—‘“ Hence it is clear that, generally speaking, the com-
} mon law of England does not, as such, hold in_ the British colonies.” (Prerogat, ch. III, page 32.) Therefore it would i’ not follow that because tde Jesuits were an illegal society in England they were illegal also in Canada.
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Lord North, the then premier, effectually disposed of that objection
in his speech in the House of Commons on the 26th May 1774: “It has been the opinion of very many able lawyers, that the best way to establish the happiness of the inhabitants is to give them their own laws as far as relates to their own possessions. Their possessions were marked out to them at the time of the treaty ; to give them those pos- sessions without giving them laws to maintain those possessions would not be very wise****** As to the free exercise of their religion, it likewise is no more than what is confirmed to them by treaty, as far as the laws of Great Britain can confirm it. Now, there is no doubt that the laws of Great Britain do permit the very full and free exercise of any religion, different from that of the Church of England, in any of the colonies ; therefore, 1 apprehend, that we ought not to extend them to Canada.” (See Debates 1774, pg. 11and12. Conf. also page 63.)
There yet remains the question of escheat. Yours, ete.,
Un EL: Montreal, 28th June, 1888.
ANSWER TO THE “GAZET TE,”— Continued,
( The Gazette, July 5 1888.)
——-.
Lo the Editor of the Gazette :
-StrR,—I have greatly condensed this last portion of my argument in favor of the claims of the Society of Jesus to their old estates, I hope I have not sacrificed clearness to brevity ; but I feel that should J give it 22 extenso, I would be trespassing on your valuable space, It will be sufficient, however, to mark out the main outline of the reasoning for those who have had patience to follow me thus far. I resume, therefore, where I left off,
13.
The title by escheat is not valid, nor was it urged, in the matter of the Jesuits’ Estates.
According to civil law, and where church property is not protected by canon law or by treaty, the King at the demise of the last heir, or
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Hh ss 48 ae 4 ; : H member of a corporation, is said to become possessor by escheat. | This does not absolutely hold good in the case of religious or eleemo- Nahar synary corporations, even according to Englishlaw, as behests and ul endowments revert to the original donors. But the case of the Jesuits’
estates is complicated by the fact that the King of England, by the laws of nations and treaty stipulations, could claim as his own those H rights only the King of France enjoyed, and as the latter could have no
claim on vacant ecclesiastical property, the King of England very logically had none. Hien Be these reasons ever so cogent, the most tangible however is that by an unjustifiable inhibition to receive new members into the order, on the part of the administration, all title through escheat is invalidated, as far as the actual holders of the Jesuits’ estates are concerned. In i | their case resort may be had to ordinary law remedies.
A corporate body cannot be destroyed by the ruler, in virtue of his Royal prerogative alone.
Neither was the King of Francee nor the King of England in virtue
of his Royal prerogative alone empowered to destroy a corporation he He ; had once sanctioned, and to deprive it of its franchise. Now preventing the Society from receiving new members was gradually but surely to
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« destroy it. Here are the principles accepted by jurists who treat of this matter:
iz ‘In its more extensive sense the term ‘franchise’ signifies every description of political right which a freeman may enjoy and exercise. i Being derived from the Crown, these franchises can in general only arise and be claimed by royal grant or by prescription which supposes it. They may be vested either in natural persons or bodies politic, in one man or in many. But the same identical franchise that has been before granted to one cannot be granted to another for that would prejudice the former grant. It is a clear principle that the King can- not by his mere prerogative diminish or destroy immunities once con- ferred and vested in a subject by royal grant.” (Chitty, on the Pre- rogatives ot the Crown, Ch. VIIL, No. I. page 119.) _ “Jtis admitted on all hands that the charter by which a body is incorporated must be accepted as it is offered..... that they may ia reject a new charter 7 ¢ofo is indubitable ; because the King cannot 4 take away, abridge or alter liberties or privileges granted by him or his predecessor without the consent of the individuals holding them.”
(Ibid. ‘No 2, pg. 125.)
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“It isa principle in law that the King is bound by his own or his ancestors’ grants, and cannot therefore, by his mere prerogative take away any vested immunities and privileges. But a corporation may be dissolved by surrendering its franchise into the hands of the King though legal dissolution is not occasioned thereby, and the charter operates till the surrender be enrolled, because the kir.g can take nothing but by matter of record without enrolement. (Ibid. p. 132.)
14.
Proof that the Crown inhibited the Jesuits from receiving new members. Consequently the title of the province to the estates by escheat untenable.
As we have already made good, on the best legal authority, that it is not within the mere prerogative of the Crown to diminish or destroy immunities once conferred on corporations, nor take away, abridge, nor alter any liberties or privileges granted by him or his predecessors (Jos. Chitty, Prerogatives of the Crown, ch. 8. Edit. London, 1820, p. 119, 125, 132); and as the Society of Jesus was a recognized body corporate, as previously proven, the action of the Imperial authorities in preventing the accession of new members was w/tra vires and wholly unwarranuble. Any subsequent advantage accruing to the Crown from such an illegal proceeding is invalid in law.
It remains simply to show that such was the case. As a matter of fact, it is a historical certainty that after the conquest no new members were received into the Society of Jesus ; that this was the result of an inhibition on the part of the Crown is proven by the two following
documents. :
On the 15th November, 1772, Mgr. Briand, bishop of Quebec, in reference to the Jesuits, thus wrote to Cardinal Castelli : “ The English have not molested them in Canada and together with the Recollets, they here serve the church with great edification. But neither the former nor the latter have leave to receive new subjects. I have asked that permission of the King of Great Britain, in an address signed by the clergy and the people. I fear much that I shall not obtain it, for two years have already gone by, and I have received no answer.” {Archives de l’Archevéché, Québec) The pro- hibition was renewed later on in 1791.
In the Royal instructions of the 16th September of that year the following passage occurs: “It is also our will and pleasure that all other religious seminaries and communities (that of the Jesuits only excepted) do for the present and until we can be more fully informed of the true state of them, and how far they are or are not essential to the free exercise of the religion of the church of -Rome, as allowed -
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within our said province, remain upon their present establishments. . But you are not to allow the admission of any new members into any of the said societies (the religious communities of women only excepted) without our express orders, for that purpose.” (Chisholm’s Papers p. 150—Lib. of Parliament E. No. 421.) The Crown in consequence did not in right, through escheat, become owner of the property at the: death of Pére Casot.
We said, moreover, that the title by escheat was not urged in the: seizure of the Jesuits’ estates.
The writ of seizin, signed by Robert S. Milnes, lieutenant-governor, and addressed to the sheriff of the district of Quebec, sets forth: ‘* Whereas, all and every, the estates and property, moveable and immo- veable situate in Canada, which did heretofore belong to the late Order of Jesuits have, since the year of our Lord Christ one thousand seven hundred and sixty, been and now are by law vested in us under and by virtue of the Conquest of Canada.”
When the property was conveyed to the provincial Government, the same title was alleged :—“The tenure of which is stated to be the con- quest of 1759 and the provincial act. 17 Vic., ch. 11.” (Signed) Edw. Blake. Ottawa, May 10, 1876.
CONCLUSION.
Before the law the claim of the Jesuits to these estates. is valid.
The claim of the province to these estates is legally null, whilst the claim to them by the society is legally valid. e
1. Canonically, the Society of Jesus, as at present established in the province, ¢s the identical corporation or moral person it was at the time of the conquest.
2. But it is not even necessary to have recourse to this line of rea- soning, though it be conclusive We all know that legal principles on private corporations cover sufficiently the case. So that, allowing for argument’s sake, though not granting, what the writer of the leader asserted, that the society ceased to exist in the province, we still have at least the same corporation revived.
MorAweEtz. Private Corporations. 1882, Sec. 566 ‘ Thus when * * * * on the other hand, it is clear that if it be the intention of the parties to revive an old corporation, whose charter has expired, or which has become dissolved by loss of.an integral part, the company will continue to be liable for its debts after as before dissolution or re- vivor.” (Note). Mr. Justice Field said: * * * “ When a new form is; given to an vid municipal corporation, or such a corporation is reor-
51
ganized under a new charter, taking in its new organization the place of the old one, embracing substantially the same territory, it will be presumed that the legislature intended a continued existence of the same corporation, although different powers are possessed under the new charter, and different officers’ administer its affairs; and in the absence of express provision for their payment otherwise, it will also be presumed in such case that the legislature intended that the lia- bilities as well as the rights of property of the corporation in its old form should accompany the corporation in its teorganization hig re Broughton vs. Pensecola. 93 U. S: 266-270.”
See also Milner vs. Pensecola, 2 Woods 632; Goulding vs. Clark, 34 N. R. 148: Lea vs. American, Atlantic Canal Co., 3 Abb. Pr. N.
Pal
©. 12,
ANGELL AND AMES, 1858. Law of private corporations aggregate, sec. 780: ‘‘ Where a corporation has been dissolved in England, the King may, either by grant or by proclamation under the great seal, re- vive or renovate the old. corporation or by grant or charter create a new one in its place. Andthe old corporation may be revived with the old or new set of corporators: and at the same time new powers may be superadded. Ifthe old corporation be revived, all its rights and responsibilities are of course revived with it: but if the grant operate as a new creation, the new corporation cannot be subject to the liabilities nor possess the rights ofthe old. An authorized merger of the rights of the old corporation in the new one by legislative act, is not such a dissolution, of the corporation, as to throw back the real estate of the former upon the grantors, or to free the corporation from an obligation to pay its debts. It may become therefore a question of great practical importance, whether the charter be one of revival merely, or a charter of new incorporation. This is not to be deter- mined by the collateral facts, that the name of both corporations, the new and the old, that the officers and a majority of the members are the same, and that the business of the old corporation was for a time done, and its debts paid ‘by the new one. It is certainly true, says Mr. Justice Story, that a corporation may retain its personal identity, although its members are perpetually changing ; for it is its artificial character, power, and franchises, and not the natural character of its members, which constitute that identity. And for the same reason corporations may be different, although the names, the officers, and the members of each are the same. “To ascertain whether a charter creates a new curporation, or merely continues the existence of an old one, we must look to its terms and give them a construction consistent with the legislative intent and the intent of the corporators. Upon the ground of the intent of the corporators, where a redigtous society, incor- porated under a general act, having mislaid their certificate of incor- poration, elected new trustees for the purpose of incorporation, and filed a new certificate—the purpose of the new election and certiticate being to preserve the old corporation, and not to change or dissolve it—this proceeding was decided. to operate merely a continuance of the old corporation.”
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: Accept, Mr. Editor, the expression of my very sincere thanks for the liberality and kindness with which you have opened your columns
to Yours, etc.,
U. EL L. Montreal, July 3, 1888.
THE “GAzETTE’S”” LAST WORD. (The Gazerre, July 7.)
THE JESUITS’ ESTATGS,
Our correspondent ‘ U. E. L.” has completed his argument, and, in noticing now some points which were not covered by our proceeding articles, we cannot help repeating our conviction that the matter is really a simple one, and that a great deal of unnecessary ground has been travelled over. The mass of material heaped up has the effect of covering the really important points. It was not necessary to cite authors to prove that the custom of civilized nations is to respect private property. or any property not obnoxious to the fundamental law of the conquering state. The opinions of lawyers also are of little use unless the staternent of the question proposed is given, and even then they do not make law. The main questions are of fact.
To quote from the elaborate report of Mr. Dunkin, in the appendix to Mr. Buller’s report : ‘‘ In the capitulation an attempt was made to ‘* introduce a guarantee for the continual maintenance of this (Jesuit) ‘¢ order in the province and the perpetual possession by them of their ‘“ estates. This proposal of the Marquis de Vaudreuil was, however, “set aside, and no such guarantee given or implied, either in the “‘ capitulation or in the treaty of 1763 b7 which the country was ceded “to Great Britain.” In estimating these two documents we must bear in ming that the permanently efficient one is the definitive treaty of:cession which was the joint act of the two high contending powers, whose servants Amherst and Vaudreuil were, and who had power to bind their respective subjects by their mutual agreement. We have printed the whole of the fourth article of the treaty which has any bearing on the case. It will, however, throw light upon the capitulation
53
to observe that the Amherst who signed it was the same Amherst who, in 1770, petitioned for a grant of these very estates as being vested in the King under the same document which “U. E. L.” says confirmed them to the Jesuits. The Crown lawyers in England and Canada, to whom the matter was referred, reported the Crown right to be indubit- able, but difficulties of describing technically the property intervened, and during the delays of enquiry Amherst died, and the orders to prepare the deeds were cancelled. In our last article we gave the opinion of Dr. Marriott, to whom the attorney-and-solicitor generals referred this special subject. The British Government was advised by the most eminent lawyers thoughout, and their opinions might be cited at length to the utter weariness of our readers.
The extensive reading of ‘*U. E. L.” has not been well digested. The fundamental error into which he has fallen is this, to quote his own words—“ the King of England succeeded the King of France in ‘“‘ the sovereignty of these provinces, he succeeded him not only in all “ his prerogatives but in all his obligations—he accepted the sovereignty “ of Canada, with all its limitations and modifications, such as it was.” This principle of law is, in effect, that by the conquest of a country the civil, criminal and ecclesiastical laws of the conquered country are imposed upon the conquerors. The victor ‘“‘ accepts” the sovereignty, and the defeated king imposes his laws. If this were the case a king ought to enquire into the laws of a country before conquering it. Either he or his subject might get into serious difficulties by victory. For instance, by the laws of Canada at the conquest (vol. 2 Edits., p. 72) Protestants could not assemble for the exercise of their religion, and it was equally illegai for them to winter in Canada. Amherst did not think to stipulaté for the liberty of the Protestant religion. It was, therefore, his duty upon conquering this country to dismiss his chaplains and send his troops to Mass. When the snow fell he was bound by the * Law of Nations” to turn Catholic or evacuate the country. Other inconveniences might arise. For instance, in Picton’s case one of the counsel observed—* by the laws respecting religion in the very country ‘‘ (Spain) from which this island (Trinidad) has been conquered, a “ heretic may be burned ; and, by the laws of the same country, any ‘‘ person converting a Roman Catholic to the Protestant religion might “be burned likewise. If, therefore, the chaplain of any one of his ‘“‘ Majesty regiments had converted this poor girl to the Protestant * faith, General Picton had a right,—zay it would have been his duty, — “to have burned this reverend person, upon the principle for which “ his connsel must contend to-day.” The Chief Justice, Lord Ellenbo- rough, said: “‘ The laws that are repugnant to the rights of the conquer-
Hy Bt
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oe “ ing State cease of course.” The principle which this and the other i f leading cases affirm is, that laws contrary to the fundamental principles
of the British Constitution cease at the moment of conquest. Now a 4 fundamental principle of the British Constitution is the King’s supre- macy as laid down in the 1st Eliz. Chap. I—which, in its terms, extends ‘ to all dominions which may at any time be annexed to the Crown of England. That extended to Canada at the instant of conquest. The | King had no power to modify it. That could be done only by the Ate King in Parliament. The penal laws were local laws. No serious person ever pretended that they followed the British arms; but at that time dissenters in England were under serious disabilities and the Quebec Act gave civil rights to Roman Catholics in Canada long before they obtained them in England. Therefore we said that the chorter of civil and religious freedom in Canada is an Act of Parliament and not Rae a treaty. 1 The opinions and authorities which ‘ U. E. L.” has been reading deal also with a more difficult question, viz.: Whether the common law of England was ‘introduced by conquest. Fortun#tely, here also, 1) iJ we can tread on the firm ground of an authoritative decision. The
| i, 1 question came up in the celebrated case of ‘Campbell vs, Hall,” i be which arose in Granada, an island ceded to the English Crown under HBP: this very treaty of 1763. It was decided by the Chief Justice, Lord Hf ry Mansfield. He said: ‘‘ It is not to be wondered at that an adjudged id ‘‘ case in point is not to be found. No dispute ever was started before ii “upon the King’s legislative right over a conquest. It never was fi i “¢ denied in Westminster Hall ; it never was questioned in Parliament.” PPE) He then quotes Calvin’s case : ‘ I say, Lord Coke in that case lays it
;
“ down as clear that if a king come to a kingdom by conquest he may “ at his pleasure alte: and change the laws of that kingdom ; but until “he doth makean alteration the ancient laws of that kingdom remain.” Again, in Ruding vs. Smith, Lord Stowell said: ‘‘ I am yet to seek for ** any principle of general law which bows the conquerors of a country “ to the legal institutions of the conquered.” ‘“ U. E.. L.” has not wah apprehended the principle underlying his authorities and has so ini selected and arranged his citations as to prove an absurdity. It strikes | ee) us also as remarkable, that, if the title of the present Jesuits to the estates of the old order is so clear, it has not been discovered elsewhere, Perhaps, if the extracts of “ U. E. L.” were forwarded to the Catholic | nations of the world, some one of them might repent and set an example | Ab to the others.
‘tt The laws for law-abiding people are the decisions of the highest i courts. We proceed then to say that the proclamation of the King,
ee ee Pe ee
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‘dated Oct. 7th, 1763, until further action was taken, introduced into ‘Canada the English laws ; and under it English courts were established. We cited in a previous article the Royal commissions and instructions to the governors, and we would now cite the Commission to Chief Justice Hey, September 25, 1766, in which he was ordered to decide causes criminal or civil, “according to the laws and customs of that ** part of our Kingdom of Great Britain called England and regulations ‘“‘ of our province of Quebec hereafter to be made.” These laws were found during the ten years they were administered, to be very unsuit. able to the country, and the French-Canadians petitioned the Crown for the ‘‘ restoration of their ancient laws, privileges and customs, as * well as for all the rights and privileges of other subjects of the King.” ‘This is the occasion upon which Thurlow made the report which “*U, E. 1..” cites with so much approval. The case of the Jesuits’ estates was just one of these “exceptions and qualifications ” he speaks of, as appears by the excepting of them in the 8th clause of the Act for which he, as attorney-general, was mainly responsible, and which he carried through the house. He and Mr. Wedderburne drew up reports upon which the Quebec bill was drafted. The latter was solicitor- general and afterwards lord chancellor, as Lord Loughborough. His report is in the same volume of Christie, p. 37. It touches on the very point of discussion as follows :—‘‘ The establishment of the first (the ** Jesuits) is not only incompatible with the constitution of an English “‘ province, but with every other possible form of civil society. By the “* rule of their order the Jesuits are aliens in every government.” ‘“ They “* are not owners of their estates but trustees for purposes dependent “upon the pleasure of a foreigner, the general of their order. Three ‘‘ great Catholic states have upon grounds of policy, expelled them. It ‘‘ would be singular if the first Protestant state in Kurope should ‘* protect an establishment that ere now must have ceased in Canada ** had the French Government continued.” ‘ It is, therefore, equally ¢ just and expedient, in this instance, to assert the sovereignty of the “* King and to declare the lands of the Jesuits are vested in His “ Majesty, allowing at the same time to the Jesuits now residing in “¢ Canada liberal pensions out of the incomes of their estates.” Guided iby these reports, and by the petitions of the French Canadians, and their evidence before the house, Parliament passed the Quebec Act in 1774 which continued the criminal law of England, restored the civil law of France, gave to the Roman Church an establishment by law, modified the oaths of the I. Eliz, cap. I, which bore upon the consciences of Catholics ; but excepted the lands of the religious orders. ‘These consequently still remained under the legislative authority of the
i i. bd |
ao ae re a tne le mein man Ap cme
mth ten oo aneentle sae. eR Pat fs
Se = 0 RE ew be ABR se
56
Crown. This unparalleled act of generosity alienated from the King nearly all his English-speaking subjects in the colonies. To the present day it stands recorded in the Declaration of Independence, as one of the justifications for revolt, that the King has abolished “ the free system of English laws in a neighboring province.” On the side of the French Canadians, abandoned by France—their leaders having emi- grated—stood the King, and his officers, Murray and Carleton, pro- tecting a discouraged people, alien in race, language, and religion, from the aggressions of their own nation flushed with success ; and now, for the first time, from a French Canadian statesman, have we heard the word ‘ spoldiation” applied to their acts, This great statute was. largely the work of the man whose “ broad views and sound principles,” whose ‘ erudition and manliness raised him to a peerage,” and to the: honor of approving quotation by ‘“ U. E. L.”
But, alas for the Act—it is not sound on the Jesuits’ estates, and “U. E. L.” says it is w/tra vires. That is simply legal heresy. Bulls and briefs may not count for much with sume, for whenever they do: not approve of them they call them “ private opiaions ” of Popes ; but when the King in his Parliament passes an Act, all his loyal subjects obey. We cannot waste time to prove a proposition which is the foun- dation of social order.
It is made a reproach that we have slurred over the position of the Jesuits at the time of the cession. Let us not do so any longer. We thought we might have spared our readers this ; and, first, we would remark that the grant which “ U. E. L.”. cites as their title does not purport to create a corporation. It is to the “Jesuits residing in Canada,”who are not separated and erected into a body corporate thereby, nor did they ever hold these lands separately from the Society of Jesus or have succession within themselves. It was proved by ‘ec constitutions of the society, which it was compelled to produc Parliament of Paris in the great trial of Father La property of the Society was held in solidarity, and the Society was made to pay the debts of the Mar" > hou V€ shall not, however, dwell upon this trial. The facts vill be found in Ency. Brit., vol. 13, Art. “ Jesuits,” by any curious reader. \Ve wish specially to invite attention to the legal status of the Society as given in Isambert—Recueil général des anciennes lois Frangaises, vol. 22. At p- 312, Aug, 6, 1761, isan ‘ Arrét du Parlement” which orders that pending a trial ‘de l’abus,” then going on, all subjects of the King of whatever condition, are forbidden to enter the said society in any of its grades. All Jesuits are also forbidden to receive foreign members.
-inco their houses. Then, at p. 320, follows an “ Ordonnance ” of the
57
King suspending for a year the execution of the “ Arrét.” One year later, Aug. 6, 1762. p. 328, is another “ Arrét,’ which recites the previous one with much other matter, pronounces “ le dit institut inad- “ missible par sa nature dans tout état policé comme contraire au ‘* droit naturel, attentatoire 4 toute autorité spirituelle et temporelle et “ tendant a introduire dans 1’église et dans les états, sous le voile spé- “ cieux d’un institut religieux, non un ordre qui aspire véritablement “et uniquement a la perfection évangélique, mais plut6t un corps ** politique, dont l’essence consiste dans une activité continuelle pour “ parvenir par toutes sortes de voies directes ou indirectes, sourdes “ou publiques, d’abord 4 une independance absolue, et successive- ‘ment a l’usurpation de toute autorité” * * “un corps immense—qui ‘ne pensant et n’agissant que par l’impulsion d’un seul homme * * * concentrée dans le gouvernement du seul général.” The ‘“ Arrét” after much similar matter, coutinues: ‘* Ordonne ; que toutes les dépo- ‘* sitions provisoires contenues en l’arrét, rendu par notre dite cour *‘ seront et demeureront définitives et seront exécutées dans toutes “leurs parties, etc.” The Arrét then goes on to command all Jesuits to quit their colleges, and abandon their habit, and forbids them to obey or correspond with their General, or to unite in society. And immediately thereupon full execution was taken out. In a Royal declaration, at p. gor, Letters Patent dated February 2, 1763, are cited, showing that the estates were then in the hands of royal officers. On Frebruary 10, 1763, the definitive treaty of cession was made, and at that date there were no French Jesuits by the laws of France. Strange teachers were in most of their colleges, and the Jesuits were beseeching in vain the intervention of the King. That came at last in the Edict at p. 424, November, 1764, which ordered “ toutes procé- dures criminelles” to cease, but ordained, ‘‘ voulons et nous plait qu’a *‘ Vavenir la Société n‘ait plus lieu dans notre royaume, pays, terres, ‘** etc., de notre obéissance.” The Arrét of August, 1762, had its full efficacy. We answer “U. E. L.,” therefore, that at the date of the treaty of cession the Jesuits had no legal status by French law—that their property was under seizure by the Government of France, and we answer that any ‘‘ sfodéation” in this matter was the act of His Most Christian Majesty the King of France.
We turn now to the Brief, Dominus ac Redemptor noster. “ U. E. L.” touches warily upon it. It is dangerous ground, but he quotes Arch- bishop de Beaumont to the effect that it is nothing but a “ personal and “* private judgment of Clement XIV~”
It is matter of history that the Jesuits openly denied and resisted the authority of the Brief, but, being suppressed by the civil laws of every
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58
Catholic state, retired to Russia, where they found protection. From thence they were banished in 1815 by a wkase which complained of them in strong terms. We would remark here, that on the very lowest ground the decisions of supreme judges make law, and that in the Roman Church the Pontiff is sipreme judge. Moreover that Briefs of the same nature— personal and private judgments” of other Popes had erccted the Society. The Bull So//icttudo—a ‘ personal and private judgment ” of Pius VII. - restored the Society on July 14, 1815, and is quoted with approval by “ U. FE. L.,” but he must also accept the sen- tence in it in which the Pope calls the Jesuits’ ** secular priests resident ‘‘ for many years in the vast empire of Russia, and once members of the ‘* Society of Jesus, suppressed by Clement XIV, of happy memory who ** had implorei his pcrmission to unite in a body.” This Bull is a very short one and while the Pope reconstitutes the Society and abrogates the Brief of Clen ent XIV, ‘so far as is contrary to the present order ” he does not contradict the strong charges of his predecessor. Our pre- tension all along has been that after the promulgation of the Brief, the Society was dissolved, and its members became “ secular priests,” and our view of the status of the Society is in harmony with that of the Popes. Nowhere in the So//icitudo is a hint that the property of the former order is to be claimed, nor is the disposition of it made by Ciement XIV referred to or modified. With regard to the manner in which the Crown took final possession of the property here, we observe. that ‘“ U. E. L’s” citation from the writ of seizure is incomplete. That was dated March 8, 1800, and, after stating the King’s right by con- quest in 1760 as quoted, goes on thus: “ And whereas, of our especial “favor, we have been graciously pleased to suffer the lat: surviving “‘ members of the late said order of Jesuits, who were living and resi- “dent in Canada at the period of the aforesaid conquest and cession “thereof, to occupy certain parts of the said estates, etc., and to “receive and enjoy the rents and profits during the term of their ‘‘ atural lives ; And whereas, alland every the late surviving members *‘ of the said late order of Jesuits, are now deceased, and whereas, ‘** since the decease of the said late surviving members of the said late ‘ order of Jesuits, we have been graciously pleased to permit the Rev. “‘ Jean Joseph Cazot, priest, to occupy divers parts, etc.” Then follows the seizure. In following the histories we fell into an error—unimpor- tani, however, as Cazot died the same year. He was not a Jesuit, He was procurator, but the last Jesuit was Father de Giapion. The title which was given by the King to the old Province of Lower Canada was not only by conquest but by escheat. We have seen that the original grant cited by “ U. E. L.” was by the King of France to the
59
Jesuits in Canada. They enjoyed it until they alldied. That they could not add to their number under French law after August 6, 1761, was not primarily the fault of the English Government. The disability existed before the cession. That the English Government likewise prohibited it, is true, and that the Pope did the same, is also true. To assert, therefore, continuity of the former and present order is to underrate the intelligence of the public. The property was unprotected by the Quebec Act aud open to the full force of the king’s prerogative ecclesiastical as well as civil, whethér as vacant from defect of heirs, or vacant from dissolution of corporators by death, or,a vacant trust returned to the donor, it would equally have fallen to the King. There was no one else to take it under English or French law. Under the Canon law of Rome it would have fallen to the bishop.
Since this discussion commenced the resolutions and papers have been brought down and debated, and we are glad to observe that any légal title existing in the present Society is distinctly denied. The definite settlement of a mass of property is to be disturbed on the plea of a moral claim. We are’ informed by ‘ U. E. L.” that every trans- action relating to it is, and has been, void aé initio. We would point out that the civil and religious right of the minority rest on no firmer basis, and if the conscience of the majority can overturn, by the retrocession of Laprairie Common, transactions based upon so many public acts, there can be no finality in anything. ‘The power of the purse is with the Legislative and they could have made what grant they chose without taking this method of aspersing the memory of a fair- minded tolerant body of men who settled the destinies of this country so that party divisions never coincided with religious creeds. This revolutionary method of reopening dead issues and declaring funda- mental laws to be u/tra vires is one well calculated in coming years to be a “ bitter pill” for more people than Protestants.
N. B.—What follows was politely refused insertion on che plea that the Gazette was entitled to the last word, that the controversy had really closed and that no good purvose could be served by reopening it. In its leader of June 27th it had however declared: ‘There is nothing we desire more than the candid discussion of every point of this important question.” But in the Jast leader of July 7th new issues were raised, a change of front attempted, plain arguments distorted, and universally acknowledged historical facts denied. We therefore publish the rejected letter, and in a postscript will lay bare the sophistry of the Gazette, whose main object throughout the discussion was, as a party paper, rather to injure the Hon. Mr, Mercier than to secure the
ne F , 60
i | triumph of truth, A line of conduct in marked contrast to that adopted by the Star.
To the Editor of the Gazette.
i Sir,—Driven from the region of principles, your contributor in the Gazette of July 7, would take refuge in the region of facts : ‘* The opinions of lawyers (he should say law authorities), are of little use unless the statement of the question proposed is given, and even then | they do not make law. The main questions are of fact.” My facts thus far seem to have been pretty stubborn, as your contributor has ie not yet caught me tripping, and the public has already learned how | unreliable historically are many of his assumed facts. They have faded ti away into unsubstantial fancies.
It is my intention to resumé to-day my work of demolition, and, at it ? the same time, show how unreliable are his authorities. One day’s : labor, however, will not cover all the ground.
Me i “ Tt was not necessary to cite authors to prove that the custom of Phe civilized nations is to respect private property, or any property not f it vbnoxious to the fundamental law of the conquering state.”
Piet It is refreshing to be able to put on record this one concession of hae i my amiable friend, writing in the Gazette of the 7th. It is not much, 7 y but still it is something ; it gives at least a diagnusis of the case. He na HH is of the Wedderburne temperament, and suffering from jesuitophobia. thas In principle, Wedderburne’s was of a milder type. Under heading 6 y i and 7 (Gazette, June 28.) I quote his principle as quite correct : ‘‘ No Fins other right can be founded on conquest but that of regulating the PED political and civil government of the country, leaving to the indivi- if } duals the enjoyment of their property, and of all privileges not incon- ; sistent with the security of the conquest.” It was, I said,-in the appli-
cation of this principle that he erred, for he evidently deemed the existence of the Jesuits, as proprietors, in Canada as ‘ inconsistent with the security of the conquest.” Otherwise, after having laid down the principle, just enunciated, he would be the most inconsistent of men. Your contributor, according to the same inexorable rule of 4 dialectics, can now j’ ‘ify his pleading in favour of spoliation only by affirming that the holding of property by the Jesuits in Canada “ was obnoxious to the fundamental law of the conquering state.” And yet he admits that they, through the generosity of the English Govern- ment, held property here from the capitulation of Quebec until the death of Father Casot, a. space of forty one years. We have yet to RY learn that during that long period the security of the conquest was jeopardized, or that the fundamental law of Great. Britain was shaken.
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Fe nath <iiemainlp hatha onan acter mania ied Amal - —
FE 2s ae = ee
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We might pause, and ask ourselves what a fundamental law of a State is? I take it to be one that is essential to the very existence of the State ; the basis of all, without which the State must crumble as the house with its foundations undermined or riven ; one which time and events cannot change without transforming the State into some other moral entity than itself. And yet at the time Wedderburne was writing, the Jesuits held property in England, and do still. At the time your contributor writes, the Jesuits are incorporated again in Canada, What has now become of the “ fundamental law”, or is merry England no longer herself but another ?
Your contributor complacently quotes a portion of a passage from Wedderburne, whic’ I should have quoted zz extenso, to show the palpable absurdity of it, had I not thought your space too precious for such vagaries, long since dispelled from the minds of serious men. Let us complete the quotation :
‘* The Jesuits, however, and the religious houses in France, which have estates in Canada (¢. e. the Recollets, Jesuits and Sulpicians) are upon a different footing from the others.
“ The establishment of the first is not only incompatible with the constitution of an English province (time has given the lie to this assertion), but with every other form of civil society.” (Frederick II of Protestant Prussia and Catherine of Russia thought otherwise.)
‘* By the rule of their order the Jesuits are aliens in every Govern- ment.” (They are the most steadfast supporters of every Government, and of the form of Government of every country in which they reside : monarchists in England and Canada, and republicans in the United States. ‘Their rule is no other than the rule of St. Paul, looking upon every constituted authgrity as of God, and obeying, in all things tem- poral, their rulers for conscience’s sake.)
‘“« Other monastic orders may be tolerated, because, though they are not useful*subjects, still they are subjects, and make a part of the com- munity ill employed. (!) The Jesuits form no part of the community (Arrant nonsense).
‘They according to their institution neither allow allegiance nor obedience to the prince, but to a foreign power,”
This was not the way of thinking of those who closely watched the working of their institution, ‘Take for instance Sir Pichard Temple, a Protestant, and Vice-Roy of India, In 1877 he addressed the pupils of the Jesuits’ College, St. Francis Xavier's of Calcutta, in the following terms :
“‘ Wherever I go, whether to capital cities, amidst the turmoil and
bustle and activity of civilized life, or to the remote interior of the country, perhaps amidst scenes of famine, or sickness, or desolation,
‘
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there I find ministers of the Catholic religion, who by their self-abnega- tion, by their long enduring patience, by their physical privations, and by their suffering, hold up the cross of Christ before the eyes of all men.
| “* T hope that you, young men and students, will be grateful through- out all your lives to the reverend pastors and masters who are now teaching and tending you, who are distinguished by attainments in. ae} theology, divinity, literature and physical science.
ae ‘* We may not, indeed, claim them for our own nationality ; but still | they are working in the midst of us the British people ; ¢hey are bring- ing you up to be loyal subjects of Her Majesty the Queen of England | and Empress of India.
tit ‘ Remember that your College bears the honoured, the venerated ban. name of St. Francis Xavier (a Jesuit), who by devoted energy in the hh most sacred of causes, by fervent burning zeal even unto death, was Pag: one of the most remarkable characters that ever adorned the annals of peas Christendom. And in your future life and conversation, bear your- bith selves in a manner worthy of that great religious community to which Lai} it is your privilege to belong—a community which is found, not only 1 ey in one nation, nor in one empire, nor even ‘n one hemisphere, but Se eEL which exists for all nations under heaven, for all Janguages spoken by men, and for all climates in the habitable globe.” (See Calcutta Englishman, quoted in the Loudon Tablet. Feb. 17, 1877.)
What Wedderburne meant by owing allegiance to a foreign power must be, I presume, to the Pope of Rome ; in which case every Catho- lic bishop, priest and layman might suffer attainder after the same fashion. Wedderburne continues : .
“ They are not owners of their estates but trustees dependent upon the pleasure of a foreigner.”
Bin an ith hoa ALERT Cari Ble Sieg TB
In my correspondence with the Star I have clearly proven the utter groundlessness of this assertion. (See Star May 26, June g' and 16 ; Pamphlet pages 9, 10, 28, 48-50.) Ido not intend here to go over the same ground, as tru.\:. is within the reach of every honest inquirer. But as this objection has been brought up again by your contributor under another form, that of the solidarity, or mutual responsibility of the various houses of the society, I shall add one short documen to those already given in my correspondence with the S¢ar on that
oe.
oe pill
RR et Ty patty
subject. Eight of the most celebrated lawyers of Paris were consulted on the
affair of Lavalette and here is their decision :
“ Le Conseil estime, d’aprés les faits et les moyens détaillés dans le mémoire, que la maison de la Martinique est seule obligée ; que non-
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seulement il n’y a point lieu a la solidarité, qui ne peut naitre que d’une loi ou d’une convention expresse, mais qu’il n’y a aucune sorte d’action contre les maisons de France ou autres maisons de l’Ordre, et que les.
Jésuites ne doivent pas s’attacher 4 l’incompétence, leur défense au fond ne souffrant point de difficulte.
* Délibéré a Paris, le 6 mars 1761. Signé: L’Herminier, Gillet, Maillard, Jabouré, de ]a Monnoie, Babile, Thevenot, d’Epaule.”
But there were other secret, and more powerful influences at work. Had the Jesuits clung to their right of committimus they were protected by the King ; but trusting to the justice of their cause, and not rightly gauging the power and malignity of the Jansenist party in parliament, they confidingly brought their case before the latter with the result so universally known and, later on at least, so universally deplored. But to return to Wedderburne :
‘“‘ Three great Catholic States have, upon grounds of policy, expelled them. It would be singular, if the first Protestant State in Europe should protect an establishment that ere now must have ceased in Canada, had the French Government continued.”
The ministers who-for the time swayed the destiny of these States had nothing catholic but the name ; and having got rid of the Jesuits, their aim was to attack directly the Holy See. The atheists of the day took in the situation at a glance. D’Alembert wrote to his friend
Voltaire : ‘ Je ne sais ce que deviendra la religion de Jésus ; mais, en attendant, sa Compagnie est dans de mauvais draps.” ((E£uvres de Voltaire T. 48. Lettre 4 mai 1762.)
Mr. Editor, your contributor could fill columns of your journal with quotations hostile to the Jesuits, and I could easily furnish as much in their favour. Between us we might fill volumes of cyclopic proportions, and our controversy would not be a whit nearer the end. Setting aside therefore what has been written to their praise by Von Schlegel, Hal- lam, Bacon, Leibnitz, Grotius, Hessius, Gretser, Keller, Buffon, Haller, Muratori, Bancroft, Peramus, Chateaubriand, Carne, Pradié, Dallas and a host of others, I sha'l ask you to insert the following quotation less known than others. I choose it, not because it is more to their praise, but because it evinces in the clearst terms the cause of their lack of popularity with a certain class. It is an extract from a letter addressed in the year 1825, by Mr. Kern, a Protestant professor in the University of Gottingen, to Doctor Tzschirner, in answer to certain strictures published by the latter against the Jesuits. It runs thus :
“ But who are at this day the enemies of the Jesuits ? They are of two classes, those who do not know them, and atheists and revolu- tionary philosophers. But every right minded man should admire that
' 64
a :
: i i which is the object of the hatred of such characters ; for we may be bi) | assured that then, either religion, or justice, or subordination is at ian stake. The re-establishment of this celebrated order, so far from:
| causing any disquietude, should, on the contrary, be regarded as a
happy omen for our times. In its organization and its tendency is to iy FE be found the most powerful safeguard against the assaults of the doc- { trines of impiety and insubordination : and this is constantly allowed Hei even by Protestants themselves. John de Muller goes so far as to say - ed that ‘¢ it constitutes a common bulwark of defence for all lawful au- van thority.” The Jesuits attack evil in its very root by educating youth Hee ES in the fear of God, and in obedience. It is true they will not teach rie Protestantism, but have we a right to require that Catholics should a teach other doctrines than those of their own Church ? Have we seen
{i in times past doctrines issuing from the colleges of the Jesuits similar ' to those of our modern schools ? Have they preached up the sovereign- ty of the people and all its mournful consequences, as is done in the
hike present dav in our Protestant universities ? Hostility to kingly au- Page thority has been imptted to them, but of this charge they have been hate “wholly acquitted by Henry IV., King of France, and at a later period ane under Louis XV, by an assembly of bishops convened by authority of
‘ei that Monarch. bit ‘Experience proves to us what rapid progress revolutionary doctrines Rite have made since the suppression of the Jesuits ; the English writer, Dallas, declares that everywhere on the continent the colleges of the 4 Jesuits are replaced by Philosophical universities, in which faith and ‘ reason have ceased to be united in education. Reason, with all its errors, is preferred as being that which is most noble in man. Faith ti has been abandoned, and impiously derided as superstitious. ii H *“ In 1773, Clement XIV suppressed the order of St. Ignatius. In 7) 1793 a King of France was beheaded, and temples were opened to ; deified Reason. During two centuries the é/ite of the French noblesse 1 were educated by the Jesuits, in their college of Clermont at Paris, in ¢ a love of religion, of science and of country. In a brief space, after fi the dismissal of these skilful masters, the same college cast upon society if a Robespierre, a Camille Desmoulins, a ‘Tallien, a Noel, a Freron, a i Chenier, with a host of others similarly corrupt. Can it then, after all : this, be a matter of astonishment that the Pope and Catholic princes i should recall men whose services are so much required, and whose high work has been acknowledged by the great Leibnitz, by Frederick II, and of whom Bacon has said: * To discover the best:mode of education, the surest way is to consult the schools of the Jesuits.”
hi
it But it was precisely their influence as educators of youth that Wed- ‘ derburne affected to distrust, so by a new principle in law, unheard of i hitherto in any civilized community, they are to be punished before
hand for possible misdeeds in the future. And bear in mind, Mr Editor, that he testifies to their good behaviour in the present. Listen to what he has'to say to palliate an act of “ spoliation” :
“ Uncertain of their tenure in Canada, the Jesuits have hitherto
65
temained very guiet (this was thirteen years after Quebec capitulated and eight months before the brief of suppression was drawn up), but should the establishment be tolerated there, they would soon take the ascendant of all the other priests ; the education of the Canadians would be entirely in their hands, and averse as they may be at present to France, it exceeds any measure of credulity to suppose that they would ever become truly and systematically friends to Britain.
“ It is therefore equally just and expedient in this instance, to assert the sovereignty of the King, and to declare that the lands of the Jesuits are vested in his Majesty, allowing, at the same time, to the jesuits now residing in Canada, liberal pensions out of the incomes of their estates.”
This is precisely that necessity against which Thurlow, whose report bears a later date, warns his Majesty when he says : “ Not that ideal necessity which ingenious speculation may always create by possible supposition, remote inference and forced argument.” More honest than Wedderburne, he requires, as every unbiassed judge should, ‘* some actual and urgent necessity, which real wisdom could not over- look or neglect.” Therefore the case of the Jesuits’ estates was not one of these “ exceptions and qualifications” spoken of by Thurlow and insisted on by your contributor.
It was however this act which led Christie (I. page 39), to remark that ‘‘ The Government dealt liberally with them. They were allowed to die out before it took possession of the estates or interfered with them, which was not till after the death of Father Casot, the /ast of the order, in 1800.” It was this “ unparallelled act of generosity” which excites the admiration of your contributor. We have made away with his heirs, let us now be generous. Let the old man die in peace and plenty, but we are sure of the inheritance !
Your contributor might no doubt ask how is it possible that a man of Wedderburne’s standing could be so hopelessly prejudiced against the order ? He read one side of the question. He took up his pam- phlet or paper of the day and read the current slander against the Jesuits, just as any one might have picked up the Gazette of July 6th, and read, on the first page in bold type: “ Jesuits suspended from religious ministrations by bishop Lafléche of Three Rivers” ; in which paragraph inuendo is not wanting: “ Thirty families, it is stated, refused to attend mass because of their experiences with the fathers.” It is not contradicted on the morrow, nor the next day. All the papers of the Dominion and the leading ones of New-York copy the thrilling item. And so the reputation of men and societies is blasted. A tardy, and perhaps reluctant contradiction comes at last ; but for every twenty
i |
mit 66
who have read this libel one may possibly read the correction. The harm is done. :
As for Marriot, the friend of Voltaire, added to his intense religious hatred of the society he wasacynic. ‘To ascertain what manner of man he was, open the Debates of 1774 and read his examination before: the House in committee (pages 163 and 172). The man did not take: the serious things of life seriously. What did he care for the well being of his Majesty’s new subjects, the Canadians ? After his famous letter ae 12 May, 1765) to Norton and de Grey, attorney and solicitor general, be written, if you please, in his capacity of King’s advocate, and to which : | } he annexed certain “ proofs and extracts” concerning the Constitution
{ of the Jesuits, and French law, one might be led to imagine that he | knew something of French civil law, of the Constitution of the Jesuits.
{ and Canon law. On these latter, of all hazy notions his are the haziest.. fi } On the former the extent of his knowledge is given by himself. |
Asked by a member (Debates, p. 163) Do you understand the French law ? He answers : I find it very difficult to understand any law.— Do you know the power of the French King under the constitution of { the French law ?—I do not well understand the constitution of France.. q I never was in France. It is very hard for a foreigner to obtain an adequate idea of the constitution of another country. aie By another member: Do you understand the French law P—Not an the style of it, nor its forms very well.—What do you mean by the } * style of it >—There is in every country, in which a system of civil laws mii is established, a law-la. guage, as there are, in every art and science, at words and phrases peculiar to them. teat Now, Mr. Editor, if there be a law which possesses a style very peculiar to itself, and unintelligible to one not versed in it, it is Canon law, and especially that particular portion which relates to religious 4 orders and their constitutions. Yet a foreigner, a layman and a 4 i Huguenot, Marriot does not hesitate to sit in judgment on the consti- di tution of the Jesuits. What wonder then that he makes such egregious 4 blunders. In his “ proofs and extracts” he confounds the Sodality of ; the B. V. M. with the Society of Jesus itself, and reckons up its mem- i bers, and this seriously, as Jesuit laymen, married and single, as women i % s ; ' f fe
and children, all belonging to the order. (See Report, 1824, French. Edit. p. 211). From the fact that neither the professed houses, nor the professed themselves, can enjoy any revenues,and that the General has a supervision to exercise as to their finances, he concludes “ all the property of these houses of the missions clearly belongs to the Father General (p. 212)! He quotes the Bulls of the Popes, confirm- ing the constitutions of the Jesuits, as a man who does not understand ,
ee Bm yn. =.”
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Latin. He argues from the fact of the General having jurisdiction over the whole order, that therefore everything belongs-to him personally } He emphasizes in one case, that of the houses and missions, the strict poverty enjoined by the rule, and in the other is forgetful of the fact that the General also is bound by a solemn vow of poverty, and is in- capacitated from personally holding any property. He arrogantly as- sumes to himself the office of teaching canon law to the nineteen popes who had up to that time solemnly approved all the absurdities, which existed in his fertile imaginat‘on only. Page after page of talk even more silly leads him finally to his goal, and he pompously concludes: ‘‘ And it is not astonishing that an institution, which appears to have been devised with a subtlety more than human, to owerthrow the laws of every country ecclesiastical or civil, should encounter in the laws of every country an obstacle to its establishment.”
And we might add that it is not astonishing, that Sir Fletcher Nor- ton and William de Grey, in the teeth of Marriot’s all but isolated opi- nion, that the conqueror may do very much as _ he pleases with the in- dividual rights of the conquered, returned a negative answer (June ro, 1765) to the question put them by the Lords of plantation affairs, This question was formulated as follows :
‘ Are not the Roman Catholic subjects of His Majesty, residing in the countries of America ceded to His Majesty, subject in those colo- nies to the same civil disabilities and penalties, to which Roman Ca- tholics in the realm are subject by law?” For Marriot was not the man to give an impartial and reliable decision.
As for Mr. Dunkin’s statement I take it to be worth its face value. Be it so that Vaudreufl strove to insert some other clause in the capi- tulation, I have no data to authorize me to gainsay his assertion. But my reasoning is based, not on what might or might not have been ad- ded to the capitulation, not on what Amherst might have intended at the time, or is made to intend, even as an afterthought, as ten years. elapsed between the capitulation and his petition, but it is based wholly on the capitulation as it stands, and as we are bound to surmise what his intention was from the context and according to the received canons for the interpretation of treaties.
“ The title which was given by the King to the ola Province of Lower Canada was not only by conquest but by escheat.”
I should like very much to be informed from what document this in- formation is gleaned. Lord Goderich in announcing the cession of the Jesuits estates to the old province, on July 7th., 1831, makes no
ee
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mention of the title. Neither does Baron Aylmer in his speech before Assembly, on Feb,'25 1832, wherein he refers to Lord Goderich’s despatch. I should be grateful also if informed what the remainder of the citation of the writ of seizure adds to what I already gave. It merely confirms what I said previously, that the title was one of con- quest, the administration looking upon it as a favour ‘* to suffer the late surviving members...... to occupy certain parts of the said estates etc.” The sole crumb of comfort seems to be derived from the as- sumption that Casot’s status was not identical with that of “ the la‘e surviving members of the said late order.” This conflicts in no point with my proposition. At most it would go to show that his Majesty’s advisers in Canada were, like your contributor, misinformed either with regard to what constitutes a Jesuit, or to the fact of Casot’s being duly qualified as such.
Now I wish to set at rest once for all this question of escheat, though as I have already made manifest the King had no better right through escheat than he had by conquest.
Is it historically true that on May 24, 1770, Jeffrey Lord Amherst’s petition, previously made, was referred by the King in Council to the Lords of the Committee ;--that by them it was r-.ferred to the board of trade, who reported back on June 7 ;—and that thereupon the Lords of the Committee of Council for plantation affairs recommended as advisable the granting of Lord Amherts’s petition ;—that on Nov. 9, of the same year, the King’s order in Council was issued to grant what might be legally granted ;—that the Attorney and Solicitor Gen- eral, by their report of Dec. 14, 1770, put a stop for a time, for certain reasons assigned, to further proceedings in the matter ;—that, on the demise of his uncle, William Pitt Lord Amherst recommenced the al- ready oft-repeated formality ;—that this game of shuttlecock was kept up, at intervals, from 1770 down to July the 18, 1799?
The thing is vouched for by endless documents and reports. Now, I ask your contributor, is he ready to reiterate his assertion (Gazette, July 7) that “ the crown-lawyers in England (I say nothing of Wil- liams and Gray, in the colony, as their want of legal knowledge or no- torious lack of principle is clearly established by Messrs. Panet and Taschereau)—the Crown-lawyers to whom the matter was referred, reported the Crown’s right indubitable but delayed proceedings through mere difficulties of describing technically the property” ?
If he answer in the affirmative, I say then it was a foregone conclu- sion to effect a spoliation based solely on the rights of conquest. For all along, until the latter dates, there were a number of Jesuits surviv- ‘ing. So'there was no question of escheat—and had these minor diffi-
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culties been cleared up, according to this theory, the estates would have passed into the hands of Amherst or his heirs during the lifetime of these Jesuits.
If he reconsider his assertion, and say that the law-officers of the Crown could not satisfy themselves that the King had any legal title to these estates, it is what I have been saying all along, in vindication of the sense of honour of these same legal advisers to his Majesty. The question I affirmed was nota simple one, though your contributor has not yet opened his eyes to the fact. I: was no doubt owing to this legal difficulty, and in a great measure to the fearless and able de- nunciation of Chandler’s duplicity, and the incompetency or dishonesty, just as you prefer, of Williams and Gray on the part of Messrs. Panet and Taschereau(*) not less than to de Glapion’s firm but respectful: pro- test,(+) that the estates were left ostensibly to the province. On July r1th 1803 the King sent a message to the Commons setting forth that his gracious intentions, in favour of William Pitt Lord Amherst, the nephew of Jeffrey, could not be carried out ‘ owing to difficulties aris- ing from local circumstances.” ‘Thereupon the Act. 43 Geo. III c. 159 was passed granting an annuity to Amherst’s heirs.
The other statement of your contributor is for similar reasons. mis- leading, when he says: “ difficulties of describing technically the pro- perty intervened, and during the delays of enquiry Amherst died, and the orders to prepare the deeds were cancelled,” the latter part being also historically inaccurate.
“ In following the histories we fell into an error—unimportant, how- ever, as Cazot died the same year (1880). He was nota Jesuit. He was procurator, but the last Jesuit was Father de Glation.”
” This was one of Roubaud’s cock and-bull stories (See report on Can. Archives, 1885, p. cxli). To what extent that gentleman’s ve- racity may be relied on, those who are ever so little conversant with
_ the history of the time can tell. The writer assures us that he “ fell
into an error—unimportant however.” He alludes no doubt to his former assertion in the Gazette 27 June. ‘‘ In our issue of Monday last the names of the Jesuits of the old orde- who remained in Canada are given. Zhe /ast of them Father Casot, died in 1800.” (See p. ¥7.) This is more or less the correct statement.
Not wholly correct, for, unlike your better informed contributor of Monday, June 25, he would imply that the full list of names was given ;
(*) See Report on Education, 1824, p. 152 (French version).
(t) See Appendix.A. to this pamphlet.
ee GE PL dag BN Sy IR GE FA EE Sc NERA TS 0 CP A TERT Se oT SE
Rp FR a Rg Fag to
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correct, however, inasmuch as he tells us that Father Casot (and not Cazot) was the last of the order.
We have already seen how inaccurate your contributor is with re- gard to important points of history. ‘This is but another instance. We would not dwell upon it, but that your contributor gives himself out as a doctor in Israel, and the more he contributes, the deeper he sinks into the “ quagmire.”—Charity requires that some one should extend to him a helping hand, Therefore I shall endeavor to defend his bet- ter self of June 27 against himself of July the 7th.
In the first place Jean Joseph Casot was a Jesuit. Born on Oct. 4, 1728, he entered the Society of Jesus on Dec. 10, 1753 and took his first vows, which made him a Jesuit, two years later. His name is on the catalogues of the French province from the date of his entrance. One of these catalogues, that of 1756, is in my possession, and he was then at the Collegium Parisiense, that of Louis-le-Grand. He arrived in Canada in 1757, three years before the capitulation of Montreal and all Canada. He was ordained priest on Dec. 20, 1766 ; but as your contributor plumes himself on his knowledge of canon law, he would blush to be told that a religious does not become more a religious by receiving holy orders. It is the vows of religion, and not the sacer- dotal character, which distinguishes a regular from asecular priest. He was therefore a Jesuit and a resident in the colony before the conquest. He took his last vows at the College of Quebec on July 31, 1772, be- fore his Superior Augustin Louis de Glapion, a year prior to the brief of suppression, and by order of the general, Lawrence Ricci. Fathers Peter DuJaunay and Charles Germain were witnesses to the act.
In the second place, even on the supposition that Father Casot was not a Jesuit, two other Jesuits survived Father de Glapion, who died at Quebec on Feb. 24 1790, 1 mean Fathers Bernard Well and Stephen de Villeneuve Girault. The former died in Montreal, the exact date I have not been able to ascertain, but sometime between March 13th and April 5th 1791. The latter died at Quebec on Oct. 8th. 1794. I have documentary proofs of these facts.
In the third place, the very fact of his being procurator, far from being incompatible with his religious character, is an additional proof that he belonged to the order.
At the date of the taking of Quebec there were, excluding the New Orleans mission and the Illinois, 37 Jesuits in the colony. In 1774,
he year the brief of suppression reached Quebec, there were 12 left.
Your contributor seems anxious to have me enter upon a discussion of the bull Dominus ac Redemptor. He even seems rather disappointed that I have not risen in arms against it, not uttered one single syllable
t derogatory to the profound veneration and filial love every true Catho- i
lic should evince for the Supreme Pontiff. If, Mr. Editor, your patience - be not already exhausted, I promise in my next communication to i : make it perfectly clear for all that the Society of Jesus was never : -cononically suppressed in Canada, no more than it wasin Russia—and 3 this without doing violence to the brief of suppression and without a 1 whisper of reproach for the author of that brief. - I protest meanwhile against the baseless calumny that the Jesuits
openly denied and resisted the authority of the brief.
’ Yours, etc.,
. Montreal, rr July, 1888.
Tue “TORONTO MAIL”, Tus ‘ HUNTINGDON GLEANER, etc., ete.,
AND THE
sore ah a Rea. © SSS LR OE
& JESUITS’ ESTATES BILL. Hl 1} Td I . iH SUMMARY. i ; THE MaIL, July 2, 1888, objects to the disposal of the money being f } subject to the approval of the Pope, as under the British Consti- - on y tution no authority outside the Province should control public H money. 1 ty Reply :—Objection frivolous. The money ceases to be public
money, when by will of the legislature it has been voted as compen- sation to Father Turgeon, a British subject and the duly authorized mae! Procurator of a recognized corporation.
As well might it be said, that a foreign authority exercised control over public money, when in settlement of the Alabama Claims,