THIRD ARTICLE OF THE "GAZETTE

(The Gazktte, June 27. 1S8S.)

The Jesuits' Estates Again.

On Monday last we published a leUer, signed " U. E. L." upon the subject of the Jesuits' estates, in which exception was taken to our editorial of the P>iday ])revious. We were glad to give space to the letter. There is nothing we desire more than ihe candid discussion of every point of this important question, but we wish to confine the discussion, so far as we are concerned, to the vital issues, and that is the reason why we could not enter upon the rpiagmire of irrelevant matter Avhich our corres|)ondent had previously opened up in the twenty columns of small ])rint which he had contributed to the Star. \\ c repeat that the fncis lie in small compass and can be grasjied 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 law — of the munici|)al laws of France and England, and of the Cation law of Rome, but chiefly, is it a question of simple fact. In diverting his readers into these regions where every princi|)Ie is dis|)uted— where there are no formulated decisions, and where irresjionsible writers, of varying ainhorily in different nations, can be quoted in support of almost any proposition, " U. E. I.." has led attention away from the essential points. The reader is insensibly beguiled away f. oin the facts, and is apt to suppose that where so much is snid 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 (»ul the numerous false issues raised. The only re;\sonable method i.s to return to the central facts.

The tendency of " U. E. E." to lead his readers off into side issues is eve.i more slroni;lv marked in his letter, \\heiher the writer of this

or that article in the editorial columns of the Gazltte 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 Capitulation and the Treaty — to make the assertions. We have for the most part quoted 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 Dominiis ac Bedemptoi' 7ioster, and he says we are " not in harmony widi 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. Cretineau-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 question 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 — v/ho 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 tiot lecture him ; we would only remark that his views of Catholicity are somewhat peculiar.

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-

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. \Vc have not assailed the present Jesuit order, ^^'e have simply maintained that the Jesuit order, as it existed, was utterly and totally supressed /'// a/l its parts hy Û\Q 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 corporanons. 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 I.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 ist, 1888, to be " deposited and left at the free dis))osal of the Holy See"; but " in accordance wiih the exact terms" :aid down by Mr. Mercier, who evidently desires to comj)el the Po|)e. to give the money to the Jesuits — an edifying i)osilion for such zealous devotees of the supreme authority of the Sovereign Pontiff ! If the title of the i)resent order of Jesuiis is as clear as " U. E. L." i)retends, wliy cannot the indemnity be paid to them ?

Our correspondent " U. E. E." asserts that '' the assumed right of the king" to confiscate the estates of the former Jesuits was not valid. If he means tiiat the King ougnt not to have done it, we shall not stop to discuss a matter of private o])inion, legal or religious ; but as he asserts that he has proved his point by the highest English legal authority 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 (ieneral in Eondon :

" By virtue of the natural law of arms anil 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- '• lion by the fate of war ; but much more s^ by the only power whose " aulhorit} and intervention could have preserved the properly of '' these ])ossessions to their supposed owners having withdrawn its •' tolerance :ind j^rotection and deserted them as a //f-zW/t/al the merry " and entirely free disposition ofthe Crown of Great Britain, by making *' no provision in the articles of cession to serve the pretended rights " ofthe community of Jesuits, nor, indeed, of any other cjrclesiastical *• communiiy.'' In view of such an authority as this, and of the special reserve of Amherst at the capitulation, that the property of the

Jesuits should be at the " pleasure of the King," what are we to think of " U. E. L.'s " law ? And what are we to think of his assertion that England at and after the conquest recognized the order of Jesus as a corporation, when the extracts given in our preceeding article from the King's instructions to the Governors from the first forbade such recognition, and when " U. E. L." admits that no new members were permitted to join ?

Agam, we come to another proposition 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 reter to this statement to show how U. E. L's. method of drawing a red herring across the trail is ai)t to lead his readers 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. AVe 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 G^eat 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 ratifications of the " present treaty."

There it \^— absolutely' 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

say that the act commonly called the Quebec Act, is the charter of French-Canadian civil and religious Hberty.

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 khtg" 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 prerogauves 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 by the same statute ; but from the operation 0/ 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 intD the general administration of the Roman Church in Canada. Either, then, the i)roperty, in failure of heirs, reverted to the Crown as "overlord," or by Canon law it shoi.ld 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. lUit if the money be 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 iSoo. As a corj^orate 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

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 atiy person to the said so- " ciety, the noviciate or habit thereof'' This prohibition lasted from- 1773 to 181 5 — 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 of 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 it ivas 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 '' QskZKYTY.r—Co7itinued.

(The Gazette, /z/;/^ 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 Gazette's leader (June 22nd) does n-^t 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

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 jjosition of the Jesuits of Canada at the time of the Conquest? Two points absolutely essential, not only to 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 all the 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.

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 Hict 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 Ceneral 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 atVirm that the bishops of France had represented to the Due de Choiseul that the unlimited authority of the General was incompatible with the laws of France. .V 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 someone among his hearers would r^r .ui.l ri\ul 1 in\

a chapter of French history ; recalling to his memoi*y 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 report on four points, the first of which referred to the advantages and disadvantages accruing to the realm from the labors of the Jesuits ; the 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 month's study of the constitutions, with the exception of six of the assembly, they unanimously reported 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 shght modifications ; one alone, François de Fitzjames, bishop of Soissons, demanding, in fa\or of his Jansenist friends, the entire suppression of the Jesuits. It would indeed be a revelation if •' the bishops of P>ance " were to dwindle down and be condensed in the personality cf P'ilzjames of Soissons.

Mr. Editor, it was in an unguarded moment that the writer of your 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 suppression 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 difiident in so doing, owing to the marked superiority of his tone.

Here then is an extract, for I regiet that the length of the letter prevents its being published in full :

•' This brief is nothing more than a personal and private judgment * * * * On 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 I even so ill-advised as to wish to extend lo 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 ])urity of their doctrine, etc. In undertaking such a task I would inflict a very notable injury on the religion, the zeal, the enlightenment and the rectitude with which those prelates laid before 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 lengtlis, glossing ov^r 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

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 i-i 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: Fax, 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 and sanguinary, and waged with the utmost vigor and mo>t 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 aid the resources of their eloquence, desirous of barri;ig every entrance by which it would force its way and work havoc within the very ])a:e of Christianity ***** heedless of the greatest perils, counting on no other reward for their zeal and for their heaven-blest journeyings than the hatred uf 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 ihc Church of France, what were the dispositions of her prelates.

The society was supjiressed thanks to the implacable hostility and the vile calumnies of a Pombal and a Choiseul. The courts of Kuropc, deluded by these unscrupulous ministers, brought all the weight of royalty to bear upon the Holy See. Hut they, in their turn, were soon swej)t away by the breath of the Revolution, and Kurope was deluged in blood. The awakening came at last, and th^n from every quarter of the habitable world poured in upon the Holy See supplications to restore the Order to itfi former state. It was not deail. .\t 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 is^iiàtuJo Omnium show what the feeling was amongst the bishops not only of France but of the Catholic world.

" 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 writev makes His Majesty say in 1775 : We will " that the Society of the Tesuits be suppressed and dissolved and no longer continued as a body corporate and politic. ..but we think fit to declare our royal intention to be that the i)resent 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 instructions of 1 79 1 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 inaccuracies, 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'être " of the French concordat of 1801.

(1-4 see page S.)

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.

The opinion of all the great authorities on the Law of Nations is uniform on this point. There is not one discordant voice.

De Vattel.— Law of Nations (Chitty) B. ITI, C. 13, sec. 199 : " The •conqueror, who lakes 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 uj) arms. War authorizes him to possess hmiself of what belongs to his enemy ; if he dej/rives 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 possessions 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 Mari ens. — Droit des gens moderne de l'Europe, vol. II. L. 8. c. 4 section 280 : — " L'action du vainqueur s'exerce directement sur les biens composant le domaine de l'État, 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 j^erçoit les contributions publiques, quand aux biens des ])articuliers, la propriété immobilière 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 ])as pour but d'assurer la conservation des propriétés de tout genre ; car celle du public exceptée, il n'y en a pas qui ne se trouve garantie par les principes sacrés du droit des gens, que nous avons déduits précédemment."

De Martens, Ibid. sec. 281. 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 conquête et l'occupation d'un État par un souverain étranger n'autorisent pas ce souverain à disj)oser par donation ou autrement du domaine conquis ou occuj)é... Mais pour ceux qui font partie du domaine de l'État, si le vainqueur en a pris possession même temporaire, il i)eut en disposer."

Twiss, Law of Nations, ch. 4, sec. 66. " A victorious nation in acquiring the sovereignty de fado over a country, from which il 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 individuals is in general by the positive law of nations noi liable to confiscation by a victorious enemy. A victorious nation, on the other hand, enters uj)on the public rights of the vanquished nation, and the national •domain and the national treasure passes to the victor."

Ki.i r.KR, 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 properly and the possession of immovable estate belonging to individuals, who have not violated the laws ol war, the conquest of a country brings no change accordinsi to the modern laws of war."

Manning's CSheldon 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 Law of Nations."

Welderburne (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 continent, 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 ]^erfectly 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 individuals 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 26ih 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 consistent with your own safety ; and this it 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, I 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." Cavendish — Debates 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 understand the right acquired by conquest, to be merely the right of empire, but not to extend 'beyond that, to the liberty and property of individuals, from which they draw this consequence, that no change ought

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 yV/x gentium to their property, as they possessed it upon cai)itulation and treaty of peace, together with ail its qualités 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 proclamation (7th October, 1763), conceived in this general form, and applied 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 immediately 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 constitution ; 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 imi)Ose 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 individuals could afford, in order to inform themselves whether they were right or wrong. 1 his was a sort of cruelty, \Nhich I believe was never practised, and never ought to be. My notion, wuh regard to this matter, I will venture to throw out as crude and general. To enter into the subject fully would reciuire more discussion than tne nature of such a debate as this will admit of. My notion is, that it is a change of sovereignty. You acquired a new country ; you actpiired a new people ; but you do not state the right of concjuest as giving you a right logoods and chattels. That would be slaveiy and extreme misery. In order to make the acquisition either available or secure, this seems to l)e the line that ought to be followed; you ought to change tho^e laws only which relate to the French sovereignty, and in their |)lace substitute laws which should relate to the new sovereign ; but with respect to all other laws, all other customs ami institutions 7vhatiV(r ^\s\\\\:\\ are indifferent to the state of subjects and sovereign, humanity, justice and wisdom equally advise you to leave ihem to the people just as ihey were." (Debates, etc., 1774, ]Kige 29, 30.)

•* If the English laws would be a prejudice to the Canadians it would be absurd lyrantiy and barbarity to carry over all the laws of this country, by which they would lose the comfort of their prof^erty. anif in some cases the /possession ofit" (Debates, etc., 1774» P^g<^ 3^) ^^^

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 laws which create and protect it are sacred and inviolable. That furthermore the sole measure 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 conferred upon it, either at the time of its creation or at any subsequent period of its existence." (Treatise on the law of private corporarions aggregate by Joseph K. Angell and Samuel Ames. Introduction, :§ 2.)

Chief Justice Marshall, in common with other authorities, holds it to be " an artificial being, invisible, intangible and existing only in contemplation of law 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 simple

7idividiial The great object of an incorporation is to bestow

the charactor and properties of individuality on a collective and changing body of men " (Ibid. sec. 3.)

Kyd's definition is adopted verbatim by Chitty also. (Prerogatives of the Crown, ch. VIII, No. 2.)

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. viii., edit. London, 1S20, 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 particular 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. i 24.) Nor is it 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 ex|)ressly given." etc., etc.

The following is an extract of the diploma or letters patent of Louis XIV, of May 12, 1678:

" Louis, par la grâce de Dieu, Roy de France et de Navarre. A tous ceux qui ces présentes lettres verront, salut.

" Nos chers et bien aimez les Religieux de la Compa:^nie de Jésus résidant en nostre pays de la Nouvelle France, nous ont fait remonslrer qu'en considération du zèle 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 temj)s i)lusieurs terres dont ils ont jouy, sur partie desquelles ils ont Hiit construire les bastiments nécessaires pour leur collège, esglise, et communauté, dans la ville de Québec, les dites terres consistantes, scavoir (here follows the enumerat on of seigneuries, etc). Et d'autant que les dites terres, lieux, et Inisiiments n'ont j)as été amortis, les exposants craignant d'être troublez en la jouissance d'u eux, nous ont très humblement fiit supplier qu'il nous jjlust les amortir, et leur permettre de les tenir en main morte et exempts de nos droits.

" A ces causes, voulant favorablement traiter les exposants, contribuer autant qu'il nous sera possible à la plus grande gloire de Dieu, et à l'établissement de la religion catholique, apostolique et romaine, dans le dit pays de Canada, et les obliger à continuer leurs prières pour notre prospérité, et santé et la conservation de cet Ksial. de nostre grâce spéciale, pleine puissance, et autorité rovale, 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 être contraits de les mettrr hors de leurs mains, ni qu'ils soient tenus pour c»*s dits héri' lieux et droits, nous j>ayer anciens devoirs et droits, donner h* vivant et mourant, faire foi et hommage, payer indemnités ou droits de

francs fiefs et nouveaux acquests à nous et à nos successeurs Roys, dont nous les avons quittés et exemptés, quittons et exemptons." &c., &c.

This instrument alone, without its being necessary for me to hunt up other documents, constituted the Society of Jesus a body corporate, and by granting the privilege of holding their property /;/ mo?'tmai?t 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 him not only in all his prerogatives but also in all his obligations. The letters patent are a solemn contract, guaranteeing protection to the Society of Jesus. The King of England is equally bound by them. He accepted the sovereignty of Canada with all its limilaiions and modifications 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 franchise as a corporation down to the very period of the conquest.^ In answer J may state : Quebec capitulated on the i8th September, 1859, and I have lying before me at the present writing an original document dated the 30th March of that same year. It bears the signati^re 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 François La Nouillet, judge prevost, to see that Sieur Hianveu be duly qualified and sworn into otfice. 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.

The royal instructions of 1791, to suppress the Jesuits, are a peremtory proof of their corporate existence down to that date at least.

Though of but secondary importance, the dale January 3, 1755, given in the Gazettk leader of the 22nd, does not seem to me correct, neither does that of 1774, given on page 40 of "An account of the endowments for education in Lower Canada, Londor^ 13th June, 1838, Norman and Skeen, printers.'' 'J'he author's name is not mentioned, but it is known to be the work of Mr. Andrew Stuart (then a lawyei in Quebec) and of Will. Badgley.

Here are my grounds for contesting the accuracy of the date given. It is a historical fact that on the 21st October, 178S, the committee of the Legislative Council, in their report to Lord Dorchester, declared that as the Jesuits had retained i)ossession of their estates under the eye and with the sanction of the Crown, an enactment became necessarv, whereby the King should confirm the Poi)e's abolition of the order, and declare its property vested in the Crown.

In his '' Institutions de 1 histoire." 1855, pnge 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 re|iort of Alexander (iray and Jenkin Williams, 15 May, 1790.

(The Frent:h version of the report of 1S24. V^i^^ 'Oj. gives the iSth May as the date of the (iray-Williams rejiort).

Now. had the civil su|)pression of the Society of Jesus taken place in I 774, this report of the Legislative Council would lose its significance, and would have been a meaningless proceeding.

I'here is, however, a more i)osiiive proof that the date I give is the correct one. In the library of Parliament, Ottawa (K. No. 421) may be found a very useful rej^ertory entitled " Ch sholm's Papers." On jxige 151 there occurs this j)assiige in the Royal Instructions of the j6ih Se|)tember, 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 purj)oscs as we may hereafter think til lo direct 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 assassii^ation was made upon the person of His Gracious I^Lijesty Cii'orge HI., it would be a little more than strong presumptive evidence that his Majesty was yet alive in that \ear. Here we h ; document emanating from the highest authority of the realm, on: that the society of Jesuits be dissolved and suj)pressed, <///</ «<» ., cjntiniiCif as a body corporate aiul f'olitic. They, therefore, had . tinned \\\^ lo that dale a body cori)orate. The same august aulhoniy

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 document 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 shall resume my hne 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.,

ANSWER TO THE '' OhZKYT'^^'— Continued.

{The Gazette, July 3 1888.)

To the Editor of the Gazette :

Sir, — Allow me to make a few remarks on your leader of the 27th before I resume my argument on the Jesuits' estates. And at the outset it is encouraging to be assured " that there is nothing you desire more than the candid discussion of every point of this important question ". I promise you ihat I shall not touch upon any but "vital issues ", provided no dissertations on subjects ad captandtim be dragged in ; otherwise I cannot be expected to leave the public under a false impression.

The writer of your leader of the 27th is considerate enough to style my elucubrations in the Star '* a quagmire of irrelevant matter ". Epigramatical, 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. Yor facilis descensus averni — but to extricate oneself? Surely the v/riter could not have had this in his mind's eye ?

Following the lead of English statesmen and jurisconsults, I decidedly differ from the writer, who, rather than fare 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 constitutional law. Municipal law would suit his purpose belter; perhaps he would prefer the police court. It would not peihai)S be wholly 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. 'I'here where he assures us "every principle is disputed, this particular principle at least, that the rights of sovereignty exclusively are the conqueror's ", is disputed by no one responsible or '* irresponsible writer". In such case pleaders, who expect a patient hearing, either addu'^e 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 matter 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 i)rofessional etiquette. Meanwhile 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 different before a Protestant and a Catholic public. There is no question, as far as I am concerned, cither of religious or party prejudice. Let your writer again consult my letter, and he will see that it was on the supposition that my readers were of the same faith as myself that I referred them to a Catholic historical auiliority. Were they not Catholics, as the writer evidently is, since he deprecates the semi-Protestant method of investigation, my i)romise was simi)ly to appeal to their reasoning faculties and their sense o( justice. This purpose I am carrying out, and would ere now have accomplished it had not irrelcihint matter been brought iij) for discussion.

And since your writer leads me to the consideration of the ecclesiastical aspect of the question, without deigning to reply directly to the insinuation that I would array Poj)e 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 ])rudence and a wise atlministralicn of the universal Chutch suggest and which we keep looked within our breast.'»

A few paragraphs further on the Hoi'y Father forbids *' under penalty of excommunication to us reserved 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 of all, those who were members of the society."

If there be secret reasons of state- administration, there must needs be also secret reasons of Church admmistration. And while cordially agreeing with the writer that it is not becoming to affect more of Catholicism 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 Protestant 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 Churcîh, that same reason, that the destruction of their order would be of more profit to her, was sufiicient 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 (cw more points of the same leader for future remarks.

The Jesuits' Estates are Church Property.

To ascertain what was the nature of the Jesuits' estates, it is indispensable to refer 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 acknowledging that no prescription can run against the Church, 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) :

" Dividuntur etiam bénéficia in saecularia et regularia, Saecularia sunt, quae non nisi saecularibus clericis, regularia, quai tantum régula ribus tribuuntur, unde eorum nomen tractum est. Hinc abbatise. caeteraque officia claustralia suis propriis donata redditibus, bénéficia sunt reguLiria, ac talia generatim censentur omnia, quae a regularibus regi consueverunt. "

I scarcely expect to see any one denying that the Jesuit>:, a mendicant order, arc regular clerks of the Church of Rome. Their estates therefore are classed among " bona ecclesiae " as regular benefices.