4 GEORGE V., A. 1914

As to the Practice-Where the English Practice can be pursued, it will altogether be followed-and when it cannot, the best attention will be exerted to preserve, as much as possible, the principles of the Court of Chancery at home.

It is proposed, that the Solicitors of the Court here, should make all the Office Copies, and carry them to the Officer to be marked, so also that they should make out all the Processes of the Court, and carry them in the same way, for otherwise the Court could not proceed without a greater number of Officers than it is proposed to appoint. If in the progress of the Business, it should be found indispensibly neces sary, to add another Officer or two for inrolling the proceedings &c. it is intended to appoint one or more of those same persons before named, to discharge those Duties, in which Care will be taken, that the One Office shall not be incompatible with the other.

This material Object will also be attended to, that neither the Parties or the Practicers shall find it possible to protract Suits, so as to create Dissatisfaction in the Country on that Head, which can be effected only, it is conceived, by dismissing the Suit for want of Prosecution, after a shorter Lapse of Time from the last proceeding, than is practiced at home, and by attending to the two Masters Offices and preventing every unnecessary Delay there.

Endorsed:-In Lieut-Governor Hunter's (No. 31) of 1st August 1801.

ORDER IN COUNCIL RESPECTING A COURT OF CHANCERY FOR UPPER CANADA.1

L.S.

AT THE COURT OF St. JAMES'S.

the 24th of March 1802.

Present.

The King's most Excellent Majesty

in Council.

Whereas there was this Day read at the Board a Report from the Right Honour able the Lords of the Committee of Council appointed for the Consideration of all Matters relating to Trade and Foreign Plantations, dated the 16th Instant, in the words following vizt.

"YOUR MAJESTY having been pleased, by Your Order in Council of the 28th "October last, to refer unto this Committee a Letter from the Right Honourable "Lord Hobart,2 One of Your Majesty's Principal Secretarics of State, to the Lord "President of the Council, in the words following, vizt.

"My Lord,

"I have the Honour of transmitting for Your Grace's Consideration, a Copy "of a Letter from Lieutenant General Hunter, Lieutenant Governor of Upper Canada, "with the Draft of a Bill for the Establishing of a Court of Chancery in that Province, together with a paper containing Observations thereupon.

1. From the copy in the Canadian Archives, Q. 293, page 155.

2. Lord Hobart, later the Earl of Buckinghamshire, was born in 1760. He entered the army in 1776 and served in the American War. In 1784, he was appointed aide-de-camp and five years later Secretary to the Lord Lieutenant of Ireland. In 1787, he was elected to the Irish Parliament and soon became one of its prominent members. From 1788 to 1794 he held a seat in the English Parliament. From 1793 to 1798 he was Governor of Madras. With the advent of the Addington Administration in 1801 control of Colonial Affairs was placed under the War Department and Lord Hobart became Secretary for War and the Colonies. For a brief period in 1805 he served in Pitt's Administration and from February 1806 to May 1807, he was joint Postmaster in the Ministry of "All the Talents." From 1812 until his death in 1816 he was President of the Board of Control for Indian Affairs in the Liverpool Ministry.

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"The Lords of the Committee in Obedience to Your Majesty's said Order of "Reference, this Day took the said Draught of Bill, together with the Letter from "Lieutenant General Hunter, and also the paper of Observations referred to in Lord "Hobart's said Letter, into their Consideration, and do agree humbly to report as "their Opinion to Your Majesty, That the Institution of an Office of Judge of the "Court of Chancery, distinct from the Chancellor, is a matter of so novel a nature as not to be adopted but on very serious consideration.

66

"That the Governor of the Province of Upper Canada (for the time being) by "his Commission, and the Powers incident to his Office is already vested with Suffi"cient Authority to exercise an Equity Jurisdiction to the full Extent pointed out "in Lieutenant Governor Hunter's Letter;1 And the Lords of the Committee are of "Opinion that the Right Honourable Lord Hobart should signify Your Majesty's "Pleasure to the Governor of Upper Canada for the Time being, to call for the "Assistance of any of Your Majesty's Judges or Law Officers of the Province, to "whom he may deem it proper to apply, in framing Regulations and Forms for the 66 Conduct of the Business and the Mode of Proceeding in a Court of Chancery." And "That it will be also proper that the said Governor for the time being, with the like Assistance, should frame a Table of Fees to be payable on the different Proceedings "of the said Court, and on the Instruments issuing therefrom; and that such Table "of Fees should be submitted to Your Majesty for Your Royal Approbation."

His Majesty having taken the said Report into Consideration, was pleased, with the Advice of His Privy Council, to approve thereof, and to order, as it is hereby ordered, That the Right Honourable Lord Hobart, One of His Majesty's Principal Secretaries of State, do receive His Majesty's Pleasure for writing to the Governor of the said Province of Upper Canada accordingly.2

Mr. Berthelot reported, that the managers on the part of this House, had been at the further conference desired by the Legislative Council, on the subject of their amendment to the Bill, intituled, "An Act for appointing Commissioners to treat "with Commissioners appointed or to be appointed by the Province of Upper-Canada,

1. The commission to the Governor-in-Chief empowered him, on the advice of the Executive Council, "to erect, Constitute and appoint such Court or Courts of Judicature or Public Justice within our said Provinces as you and they shall think fit and necessary for the hearing and determining of all Causes as well Criminal as Civil according to Law and Equity." See page 11.

2. During the next several years the attention of the Home authorities was repeatedly directed to the importance of establishing a separate Court of Chancery. (See the Canadian Archives, Q. 299, page 140, Q. 305, page 113, Q. 310, page 31.) In 1807, the question again came before the Privy Council. By an order of August 2nd the Council reaffirmed the position taken in 1802, but in addition gave its approval to a table of fees payable on the different proceedings of the Court of Chancery. (See the Canadian Archives, Q. 310, page 235.) Nothing. however, was accomplished until 1837, when by the Provincial Statute 7, William IV, Cap. II, a Court of Chancery was constituted.

3. From the Journals of th House of Assembly of Lower Canada, 1804, page 392.

4 GEORGE V., A. 1914

"for the purposes therein mentioned;" and had received from the managers on behalf of the Legislative Council, reasons in writing for not insisting on the amendment disagreed unto by this House; and he delivered the said reasons in at the Clerk's Table, where they were read, and are as follows

66

The Legislative Council is perfectly aware that there are instances in which it is conformable to Parliamentary usuage, to name in the Bill, the persons who are to carry it into execution2: But it cannot assent to the proposition that every instance in which such a practice occurs, is to be considered as a proof that the House nominating has an exclusive privilege for that purpose: still less can it admit that the House of Commons in England, has any such a privilege in every case in which Revenue is concerned. If that had been the case, the Officers of the Treasury, the Exchequer, the Customs, the Excise and every other Branch of the Public Income, would from all time have been appointed by the House of Commons. It is the peculiar felicity of the British Constitution, that no material part of it stands upon the ground of usage only: whenever a practice not indifferent in itself has the sanction of prescription, it invariably has at the same time the sanction of reason and principle."

"Under this head, the Legislative Council conceives that, as there is no principle of the Constitution more wise, so there is none more general than that the right of nomination to every situation of honor, profit or trust, is vested in the Crown. The Houses of Parliament have generally speaking no patronage whatever. They do not even nominate their own Servants, and but one of them has a right to elect its Speaker; nor is it possible to read their History without having frequent occasion to remark how uniformly each has disclaimed every thing of the kind for itself, and refused it to the other. It may in short be laid down as a rule as general as any that relate to human transactions, that by the principles of the Constitution, the inferior Branches of the Legislature cannot nominate to any situation whatever in the detail of Government, but in cases in which it would be a solecism to leave the nomination to the Crown. On the subject of Revenue perhaps it is not too much to say, that the instance of appointing persons to enquire into the expenditure of public money, or the application of a public Fund, is the only one in which either House can Constitutionally claim a right of nomination or approbation."

"But whatever may be the case, when the two inferior Branches of the Legislature are granting money to the irresponsable Sovereign, and providing against the misapplication of it by his responsible Ministers, the Legislative Council is of opinion that the instance now before the two Houses, is of a very different description, and to be governed by intirely different rules. The present Bill is neither for the purpose of granting supplies, nor of enquiring into the manner in which former grants have been expended. The object of it is wholly diplomatic: it is for the purpose of instituting a Negociation with a Country which has indeed the same Sovereign with ourselves, but enjoys a Legislature wholly independent of us. The result of that

1. The Bill after reciting the purpose of the measure enacted continued, "that the Honourable James McGill and John Lees, John Richardson, Joseph Papineau, Joseph Perinault, Maurice Blondeau, Louis Greg, fils, and Samuel Gerrard, Esquires, shall be and they are hereby constituted and appointed Commissioners on the part of this Province, who or any three of which are authorized and empowered to meet, treat, consult and agree with such Commissioners as are or may be appointed on the part of the Province of Upper Canada." This section the Legislative Council amended so as to read that it shall and may be lawful to and for the Governor, Lieutenant-Governor, or person administering the Government of this Province for the time being, to nominate and appoint, under the Great Seal of this Province, such and so many persons as he shall think proper, not exceeding seven, nor less than three, to be Commissioners on the part of the Province to treat with Commissioners. appointed or to be appointed on the part of the Province of Upper Canada." See the Journals of Assembly, 1804, page 310.

2. The first reason assigned by the Assembly for rejecting the amendment of the Council was that "Because, in objects of the same nature of that of which the Bill is intended to provide, having relation to revenue only, it is conformable to Parliamentary usage, to name Commissioners in Bills sent from the Commons. See the Journals of the Legislative Assembly, 1804, page 330.

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negociation will be not a grant of Revenue or regulations for the application of Revenue, but a Treaty establishing the principles on which two independent Legislatures shall, during a given period, exercise their several rights of raising Revenue, so as not to throw unnecessary or impolitic obstacles in the way of the Commerce and Industry of each other, or of the Mother Country."

66 For this reason and without stopping to enquire how far, by the principles of the Constitution, an Act of the Legislature is necessary to enable His Majesty to treat with his own Subjects, the Legislative Council cannot but think that as the King, in all negotiations with external powers is the Representative of the Nation, the King alone has the right of selecting the persons to whom the exercise of so important a trust is to be delegated. In negociating with powers which are in the common acceptation of the term, Foreign, this right has never been disputed: and the recent instances of the Commercial Treaty with France and the Treaty of Amity and Commerce with the United States of America, distinctly shew that he wants no authority from the other Branches of the Legislature, to be able to bind them, even in matters of Revenue. The Canadas tho' subject to the same Sovereign are in respect of their Legislatures as independent of each other as France and the United States are of GreatBritain; and if a precedent be wanted, of two independent Legislatures under the same Sovereign the illustrious one of the Union between England and Scotland, is directly in point, and shews that the Crown in such a case has the sole nomination of those who are to conduct the Treaty, even tho' Revenue be one of the Subjects of it."

"With respect to the second head,1 on which the Assembly rests its claim to the right of nominating the Commissioners who are to carry the present Bill into execution, the Legislative Council cannot admit that a period of eleven years2 is sufficient to dispossess the Crown of the most important of its prerogatives and to vest it by prescription in the Assembly. The exercise of it by the Assembly during that period, proves nothing but the ease with which, at the introduction of a new System we may be misled by Analogies, which, when carefully examined, are found to afford inferences diametrically the reverse of those which we expected from them."

"The Legislative Council has thus detailed the reasons of the amendment it has offered, because it conceives that the exclusive right of the Crown to nominate to every situation of honor, profit or trust, is one of the corner stones of the Constitution, and because it trusts that on reflection, the Assembly will see that it cannot encroach on the prerogative without eventual ruin to itself."

"With a view however of giving to the Assembly an unequivocal mark of its desire to act on all occasions in harmony with it, and of the high opinion it entertains of the individuals whom the Assembly has selected, the Legislative Council withdraws its amendment. But it begs to be understood to do so, for this time only, and with a right of which it will assuredly avail itself, on every future occasion, of renewing and insisting on the present objection."

1. The Assembly's second reason for rejecting the amendment of the Council was that Because this mode having been adopted for the same purpose in four several Acts of the Legislature of this Province, in three successive Parliaments, and the objects proposed thereby having been attained in a satisfactory manner and without inconveniency, the Assembly doth not deem it expedient or necessary to deviate therefrom on the present occasion." See the Journals of the Legislative Assembly, 1804, page 330.

2. Acts similar to this and for the same purpose had been passed in 1793, 1796, 1798 and 1800.

4 GEORGE V., A. 1914

THE CROWN AND THE ROMAN CATHOLIC CHURCH.1 REPORT OF A CONVERSATION BETWEEN ATTORNEY GENERAL SEWELL2 AND MONSEIGNEUR PLESSIS.3

May it please Your Excellency,

To His Excellency Sir Robert Shore Milnes, Baronet, Lieutenant Governor of the Province of Lower Canada, &c &c &c

In obedience to your commands, I have the honor to report to your Excellency the conversation which passed yesterday between the Reverend M Plessis, Titular Roman Catholic Bishop of Canathe & myself, upon the present State of the Church of Rome. With the exception of some few remarks upon indifferent Subjects, our dialogue was as follows.

Plessis. I have lately spoken to the Governor respecting the present situation of our Church, & he has referred me to you on the Subject.

Attorney Gen The Governor has given me permission to explain my own private Sentiments on the Subject to you; what I think you may ask, & I will answer candidly. But before I state what I have to say, let me observe that the object is of the last importance to your Church, & (I admit also) important to the Government. It is highly necessary for you to have the means of protecting your Church, To the Government to have a good understanding with the Ministers of a Church which it has acknowledged by the Quebec Act, & at the same time essential to have them under its controul.-Let me also remark that the Government having permitted the free Exercise of the Roman Catholic Religion ought, I think, to avow its officers, but not however at the Expence of the King's Rights or of the Establyshed Church. You cannot expect nor ever obtain any thing that is inconsistent with the rights of the Crown, nor can the Government ever allow to you what it denies to the Church of England.

Plessis. Your position may be correct. The Governor thinks the Bishop should act under the King's Commission, & I see no objection to it.

Attorney Gen' My principle is this, I would not interfere with you in concerns purely Spiritual, but in all that is temporal or mixed I would subject you to the King's authority. There are difficulties, I know, on both sides; on one hand, the Crown will never consent to your emancipation from its power, nor will it ever give you more than the rights of the Church of England, which has grown with the Constitution, & whose power, restrained as it is, is highly serviceable to the general interests of the State; on the other hand, your Bishop will be loth to abandon what he conceives to be his right, I mean particularly, the nomination to Cures; Yet that he must do so, for no such power is vested in the Bishops of England, & if permitted would be highly dangerous.*

1. From the copy in the Canadian Archives, Q. 97, page 175. This report is also published in Mr. Christie's History of Lower Canada, Vol. VI, page 74.

2. See page 269, note 2.

The

3. Mgr. Joseph Octave Plessis, at this time the Coadjutor to the Bishop of Quebec was born at Montreal in 1763. He was educated at the Seminary of St. Sulpice at Montreal and at the Seminary of Quebec. He was chosen to perform the duties of Secretary of the Diocese of Quebec in 1783, and three years later was admitted to the priesthood. In 1792, he was appointed curé of Quebec, and in 1797 was selected as Coadjutor to Bishop Denaut. attack on Rome and the imprisonment of Pope Pius VI. delayed his appointment as titular Bishop and it was not until April 1800, that he officially became Coadjutor of Quebec and Bishop of Canathe. On the death of Mgr. Denaut in 1806, Mgr. Plessis succeeded to the office of Bishop of Quebec. He was appointed to the Legislative Council of Lower Canada in 1818, and in his patent officially recognized as the Bishop of the Roman Catholic Church of Quebec. In this connection, it was stipulated, however, that Mgr. Plessis' successors should not assume the title until their right to it had been recognized by His Majesty in some formal instrument. Bishop Plessis died at Quebec, December 4th, 1825.

4. See Article 44 of the Instructions to Lord Dorchester, page 24.