a and b

Amherst in his endeavors to secure the Jesuits' estates obtained from the ** avocats de Paris " a "consultation " in which these unscrupulous members 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, 17S8. 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 sovereignty of the country, "with all its limitations and modifications. " The right of the King of France over Churrh proi)crty was limittd ; so in the same degree is tliat of the Kini^ of FnuLuul."

The general right of Conquest imposes the duty of maintaining the existing laws of property.

This ])roposition is but a corollary of what has been stated and sustained by legal authority under heading 6 and 7, and of what will be further developed under heading 12. If, however, something more ])recise be required I am ready to undertake to point out the logical

The Quebec Act, inasmuch as it restricts treaty stipulations, 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 their 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 frustrated 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 à annuler, changer ou. altérer aucuns .droits, titres ou possessions, résultant de quelque concession, 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 même effet, comme si cet acte n'eût jamais été fait. "

So that, as far as conce.-ns 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 ultra 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 mi<.'ht 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.

properly concluded, car.not be altered or annulled by one of the parties without the consent and concurrence of the other. Wide is the difference 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, therefore, necessarily become the supreme law of the land. The peace, prosperity and reputation of the United States will always greatly depend on their fidelity to their engagements, and every virtuous citizen (for every citizen is a party to them) will concur in observing and executing them with honor and- good faith, and that whether they be made with nations respectable and important, or with nations weak and inconsiderable, our obligation to keep our faith results from our having i)]edged it and not from the character or description of the state or people to whom neither imininity nor the right of retaliation can i sanctify perfidy, for although perfidy may deserve chastisement, yetit can never merit imitation. "

If, therefore, the act of Quebec is to be read as a step towards the gradual absorption of the Jesuits' estates, it 's a clear case of infringement of treaty stipulations, and as De Vattel said : " The following rule is belter calculated * * * at once to cut short all chicai,«Ty. If he who could and ought to have explained himself clearly and f ily has not done it, it is the worse for him. He cannot be allowed t<> introduce subsequent restrictions which he has not expressed ♦ =» * The equity of this rule is glaringly obvious, and its necessity is not less evident. " (Chitty's De Vattel, B. 11, ch. XVII, sec. 264.) (I près, -id entirely from the known maxims of Canon Law, with regard to Ch;: ch property.) Chitty himself confirms this point. See Prerogatives, cic, ch. Ill, pg. 20, edit. London, 1820 : '* Nor can the King legally .lisregard or violate the articles on which the country is surrendcre'i or ceded ; but such articles are sacred and mviolable according to tieir true intent and meaning. " Page 30: " The King may preclude hin» :lf from the exercise of his prerogative legislative authority in the .rst instance over a conquered or ceded country, by promising to ve > in it an assembly of the inhabitants, and a governor, or l)y any men - ire of a similar nature, etc. " i'lierefore a fortiori he may preclude hin elf from confiscating ])rivate i)roperiy, even had he a right othcrwis to do so. This he did, through his general, at the capitulation of Can hi»

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 right3 of conquests in general, it gains a hundred-fold when we com3 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 EngUsh version of the Capitulation of Quebec, so I am obliged to quote from the French.

Capitulation de Québec (i8 septembre 1759) : Art. II. Que les habitants soient conservés dans la possession de leurs maisons, biens, effets et privilèges -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 sauvegardes aux maisons ecclésiastiques et religieuses, particulièrement a Monseigneur l'Évêque de Québec, etc., etc.— Libre exercice à la Religion Romaine, sauve-gardes à toutes personnes religieuses, ainsi qu'a Monseigneur l'Évêque, qui pourra venir exercer librement et avec décence, les fonctions de son état, lorsqu'il le jugera à propos, jusqu'à ce que la possesion du Canada ait été décidée entre Sa Majesté Britannique et Sa Majesté Très Chrétienne.

Capitulation of Montreal (and of the whole province, 8th Sept., 1760): ''Art. XXVII. The free exercise of the Catholic, Apostohc and Roman Religion shall subsist entire, etc., etc.

Answer —"Granted as to the free exercise of their religion. The obligation 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 mihtary, and it shall be forbid to trouble them m their rehgious exercises, or to enter their monasteries ; safeguards shall even be given them if they desire them.

Answer—" Granted.

" Art. XXXIII. The preceding article shall likewise be executed with regard to the communities of Jesuits and RecoUets, and to the house of the priests of St. Sulpice at Montreal. This last, and the Jesuits, shall preserve their right to nominate to certain curacies and missions, as heretofore.

Answer — " Refused till the King's pleasure be known. " Art. XXXIV. All the communities, and all the priests shall preserve their movables, the property and revenues of the signiories and other estates which they possess in the colony of what nature soever they be, and the same estates shall be preserved in their privileges, rights, honors and exemptions.

Answer — " Granted.

" Art. XXXV. If the canons, priests, mis>ionaries, tne i)ncsts of the Seminary of the foreign» missions, and of St. Sulpice, as well as the Jesuits and the Recollets, choose to go to France, passage shall be granted them in His Britannic Majesty's ships, and they shall all have leave to sell, in whole or in part, the estates and movables which they possess in the Colonies, either to the French or to the English, without the least hindrance or obstacle from the British Government.

" They may take with or send to France the produce of what nature soever it be of the said goods sold, paying the freight as mentioned in the 26th article. And such of the said priests who choose to go this year shall be victualled during the passage at the expense of His Britannic Majesty, and shall take with them their baggage.

Answer — " They 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.

" Alt. XXXVII. Lords of manors (les seigneurs de terre), military and civil officers, etc., etc., shall preserve the entire peaceable property and possession of their goods movable and immovable, merchandise, etc., shall keep and sell thcni as well to the French as Knglish ; to take away produce of them . . whenever iht y shall judge proper

to go to France, paying freight as in the 26ih article.

Answer — " Granted as in the 26th article.

" An. XIAT. Inhabitants and merchants to enjoy all the privileges granted to subjects of His lîntannic .Majesty.

Answer — " Granted.

" Article L. The present capitulation shall be inviolably executed in all its articles, and bona fide on both sides, notwithstanding any infraction and any other pretext, with regard to preceding capitulations, and without power to make reprisals.

Answer — " Granted. "

Treaty of peace — '* His Britannic Majesty, on his side, agrees to grant the Hberty 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 ■to 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 pretence 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 shall 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 moveables, 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 {ox'ccidWy 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,

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 François, to make room for a more worthy successor, " without," Amherst says, " having given the least notice. As soon as I heard of it I ))ut a stop to it, looking on it as a breach of the 33rd and 40th Art. of capitulation." (See Canadian Archives, Ottawa, B,

The XL. Art. closes thus : " The actual vicars-gcneral, and the bishop, when the Episcopal See shall be filled, shall have leave to send them (the Indians 1 new mission naries 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. ;^j^, 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 a/ its icorst, 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 règle qui est fréquemment d'usage dans l'interprétation des Traités de. Paix. Toutes les fois qu'on se rapporte sur certains articles, à quelque article précédent, ou à quelque ancien Traité auquel on renvoie, toutes les qualités, ou les conditions exprimées dans l'article 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. i.) We have simply to repeat the Art t,2, adapting it to the Jesuits, etc. " The communities of Jesuits, RecoUets and Sulj)icians shall not be preserved in their constitution and privileges (///<• /lo/t/i/t^t; of property ts a ri^ht.) They shall not continue to observe their rules. They shall not be exempted from lodging any military, and it shall not be forbid to trouble them in their religious e\ercises,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 missions as heretofore." Though the whole of this in its complex is palpably absurd, as the refusal may tall on one clause only, no mention is

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 certainly 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 plutôt au préjudice qu'à l'avantage de celui qui a lui-même prescrit les conditions du Traité. (Note.) C'est la maxime que posait autrefois Hannibal : Est qtùidem ejus qui dat, 71011 qui petit, conditiones, dicei-e pads. C'est-à-dire, pour l'ordinaire, du plus puissant, de même que les articles d'un contrat de vente s'expliquent au préjudice du vendeur. (Note.) Cela est décidé par le Droit Romain : Veteribus placet, pactionein obscurain, vel ambiguam venditor i et qui locavit, nocere ; in quorum fuit potest ate legem apertius 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 à son avantage des termes et des expressions susceptibles de plusieur sens. On peut rapporter ici ce que dit Aristote : Qu'en matière d'amitiées contractées par un principe d'intérêt, l'utilité de celui qui reçoit est la mesure de ce qui est dû." (Grotius, 1 iv. ii, 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 extending or restricting the signification of the expressions to that meaning 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 Vattel, Law of Nations, B. IV. Ch. III.', 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 observed. 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. 11, N. 1.2.)

Of course, I do not expect that there will be any quibbling concerning the term treaty in the foregoing quotations, as we are here discussing a capitulation. They are certainly not identical in every case, but are so taken in the matter under consideration. It is evident from the following :

" It is very certain, that, in order to discover the true meaning of the contract, attention ought principally to be i)aid 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 conventions are sometimes made — the one parly offers the conditions and the other accepts them ; that is to say, the former oroposes and he requires that the other shall oblige hmi-elf to perform, and the latter declares the obligation into which he really enters. If the 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 promising is considered as merely repeating them in order to form his promise. The capitulations of besieged towns may here serve us for an exam])le. 7 he besieged party proposes the conditions on which he is willing to surrender the ]3lace; the besieger accej^ls them; the expressions of the former lay no obligation on the latter, unless so far as he adopts them. He who accepts the conditions is m reality the promising 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 jxirty, 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 Vattcl, J3. IL, ch. xvii., sec. 267.)

This shows that what I have said is ai)j)licable indiscriminately to treaties and to capitulations, and, moreover, further confirms my point ; for what the besieger has sufficiently, nay very distinctly declared in the 34 art., I take to be true against him, viz., that with all other communities the Jesuits were to preserve the properly and revenues of the Seigniories and other estates, etc., and we conclude with De Vattel that : " We ought to interpret his ol)scure or ccjuivoail expressions 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. 3. II. ch. XVH., J$ 2S4.)

Brought uj) in the admiration of England and of everything English, my first impressions of her che(iuered history were that never had she, nor never was she cai)able of violating her sacred promises once duly pledged. My boyish ideas, as those, no doubt, of the young generation rising around us, though not formulated with all the preciseness of a De Vattel, might, however, be renilered in his words :

** Let us simi)ly observe, that an evidently f:ilse interpretation is the grossest imaginable violation of the faith of treaties. He that resorts to such an expedient, either impudently sjiorts with that sacred faith.or evinces 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

the character of an honest man ; he is a puritanical impostor, who aggravates his crime by the addition of a detestahle hypocrisy. * * *" " Our faith may be tacitly pledged as well as expressly ; it is sufficient 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 deduction, inferred from our actions. Thus, as Grotius observes (L. Ill c. 24; sec. I), whatever is included in the nature of certain acts which 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 Nations, B. II. ch. 15, sec. 233).

What England owes to the descendants of the heroic handful, headed 1 y de Montcalm and de Levis, who abandoned by their own mother country, hoped against hope, and defended to the last their hearthstones and their altars, must be defined not by the Treaty, taken alone, but by Treaty and Capitulations taken in the coinplex. For the latter are as sacred as the former :

'•' Since the general of an army and the Governor of a town must be naturally mvested with all the powers necessary for the exercise of their respective functions, we have a right to presume that they possess those powers, and that of conclu(hng 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 commanders have acted." (Chitty's de Vattel, B. Ill ; c. XVI, sec. 261).

Their articles are not cancelled by a definitive treaty unless it be clearly so stated and agreed upon. " In things favorable (in interpreting 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 deprived 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 possessor. It is less repugnant to equity to withhold from the owner a possession which he has lost through his own neglect, than to strip the just possessor of what lawfully belongs to him. In the interpretation, 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).

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 arbiters 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 belaid, 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 spoliation, 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 iniquity was consummated on the advice and with the concurrence of a handful of men within the limits of ihis province, men who had not at. heart the true interests of their sovereign nor of their country.

To my mind ihe meaning of the capitulations and treaty has always been perfectly clear, and if I have gone into these consideiaiions, it is rather out of deference for a j)reconccived notion, that as the estates were taken by the Government, the caj)itulations or treaty must in some way have sanctioned the seizure.

I would say that Amherst, a blunt soldier, knew ami carcci very little about the constitution and rules of the Jesuit^ nor was he a man to wish uselessly to molest them in their religions exercises. Hut 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 refu^al of the thirty-third article.

English Authorities on the rights of ReHgious 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 English authorities on what was and what was not stipulated in the same

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 capitulated 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 corporation 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, andof their function by their clergy, was also reserved."

" The whole of these terms were stipulated on the icth of February 1763, in the definitive of peace, etc." (Christie, Vol. i, pg. 48.) Again :''... and if this general title (rights of conquest as determined by the Law of Nations) to such 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 personal liberty, which seem to draw after them the laws by which 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 already 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 k would admit some exceptions and qualifications. The conqueror succeeded to the sovereignty in a title at least as full and as strong as the conquered can set up to their private rights and ancient usages.

" Hence would follow every change in the form of Government which the conqueror should think essentially necessary to establish his sovereign 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 amd 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 necessity, which real wisdom could not overlook or neglect ; not that ideal necessity which ingenious speculation 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

state, or to the older provinces \\h'\c.h other accidents attached to the empire, for the sake of creating a harmony and uniformity in the several parts of the empire, unattainable and, as 1 think, useless if it could be attained ; not the necessity of strip|jing from the lawyer's argument all resort to the learned decisions of the J^arliament of Paris, for fear of keeping up the historical idea of the origin of their laws ; not the necessity of gratifying the unprinciple and imj)racticable evi)eclations of those few among your Majesty's subject who may accidentally r;sort thither, and expect to find all the different laws of the different places from wliicii they come ; nor, according to my simple judgment, any species of necessity which I have heard urged for abolishing the law's 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 report is the outcome of reflection and research. Jn it the warmth of his expresssions is tempered by the thought that he is addressing his sovereign. But if we wish to measure the depth of his convictions, we must listen to him on the floor of the house, endeavoring to safeguard the honor of England and the inviolability of treaty stipulations :

" When it (Canada) was taken, gentlemen will be so good as to recollect upon what terms it was taken. Not only all the French who resided theie had eighteen months to remove with all their moveable effects, and such as they could not remove, they v.ere enabled to sell, but it was expressly stipulated that every Canadian should have the full enjoyment of all his ])rc)periy, particularly ///f r^/ii^ious orders of the Canadians, and that tiie tree exercise of the Roman Catholic religion should be continued. And the definitive treaty of peace, if you examine it as far as it relates 10 Canada, by the cession of the laic King of France to the Crown of (ireat Britain, was made in favor of pro|>eriy ; made in favor of religion ; made in favor of the sn^eral reit- ^ioiis Of ders^ (Cavendish — Debates, etc., 1774. pg. 27, 2S.)

I'here is a true ring of conviction in these words, and no room for doubt or hesitancy ; yet in ihem is embodied the legal o|)inicn of the highe t authority on these matters in England at the lime in which ihey were littered. And how can he speak so positively of the treaty, as confirmatory of the capitulation since the divers articles of the latter are not rehearsed in full, and the good pleasure of the King has apparently not been made known as to several of the articles .> The King's silence is rightly interpreted to mean that he can lake no exception to one who signed, in his name, without overstepping his powers, articles of capitulation which become then inviolable. Things remain as

they were, if in provisions, as to his assent, the King remains silent; in which case, the general maxim finds its application : melior est conditio possidefitis.

However this right of possession is indirectly confirmed by the treaty, when for the Jesuits and others it was made facultative or optional to sell their estates. They were not, of course, obliged to do so, but de facto the Society of Jesus, on the 5th May, 1764, sold 172 arpents, a large portion of St. Lavvrence ward in Montreal, to sieur Plessis Belair (See Terrier des Seigneurs de Montréal, at that date), and this sale was effected with due authorization. " Vente par le Supérieur des Jésuites de la mission de Montréal, autorisée par acte de justice à Charles Plessis Belair i ^ d'une terre, etc.'' (See Canadian Archives, Ottawa, series Q., vol. 50, A. page 188.)

Another contract of donation was passed by the Jesuits in favor of the Ursulines of Quebec as late as the 24th April, 1788. (See report 1824, page 123).

In the report of two commissioners of the nine appointed to ascertain, 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 : " lis (les commissaires) observent aussi qu'il est de notoriété publique que par différents jugements des cours de justice en cette Province ils (les Jésuites) ont été maintenus dans leur droits, et qu'à leur connaissance ils continuent à posséder toutes les dites terres, à l'exceptien d'une partie du Collège de Québec, maintenant occupé comme magasin des provisions du Roi, et comme casernes pour une partie de la garnison." (Rap. 1824, p. 93».

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 Britain permit y

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 still further : — " Hence it is clear that, generally speaking, the common law of England does not, as such, hold in the British colonies." (Prerogat, ch. Ill, page 32.) Therefore it would not follow that because tde Jesuits weie an illegal society in England they were illegal also in Canada.

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 possessions without giving them laws to maintam those possessions would riot 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 cotijirm 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 apjjrehend, that we ought not to extend them to Canada." (See Debates 1774, pg. 11 and 12. Conf. also page 63. >

There yet remains the question of escheat. Yours, etc.,

Montreal, 2Sth Tune, 1888.

ANSWER TO i'HK " GAZETTE,"— (rc;////////e-./.

( The Gazltte, July 5 iSSSJ

To the Editor of the Gazette :

Sir, — 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 I give it /// extenso, I would be trespassing on your valuable space. It will he 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 o{ï.

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

member of a corporation, is said to become possessor by escheat. This does not absolutely hold good in the case of religious or eleemosynary corporations, even according to English law, as behests and 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 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.

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 their case resort ma y be had to ordinary law remedies.

A corporate body cannot be destroyed by the ruler, in virtue oJE" 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 had once sanctioned, and to deprive it of its franchise. Now preventing the Society from receiving new members was gradually but surely to destroy it.

Here are the principles accepted by jurists who treat of this matter:

" In its more extensive sense the term ' franchise' signifies every description of political ric^ht which a freeman may enjoy and exercise. Being derived from the CroAvn, 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 cannot by his mere prerogative diminish or destroy immunities once conferred and vested in a subject by royal grant. " fChitty, on the Prerogatives of the Crown, Ch. VIII., No. I. page 119.J

" It is admitted on all hands that the charter by which a body is

incorporated must be accepted as it is offered that they may

reject a new charter in toio is indubitable ; because the King cannot 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.)

" It is a principle in law that the King is bound by his own or his ancestors' grants, and cannot therefore, by his mere jjrerogative take away any vested immunities and jjrivileges 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 charier operates till the surrender be enrolled, because the king can take nothing but by matter of record without enrôlement. (Ibid. p. 132.)

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 fjos. 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 ultra r'/W^ and wholly unwarrantable. 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 meml)ers 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 Caslelli : '* Tiie English have not molested them in Canada and together with the RecoUets, 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 ])ermissioii 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 I'.Vrchcxeche. Québec) Tnc' prohibition was renewed later on in 1791.

In the Royal instructions of the 16th September, of that year the following })assage occurs : "It is also our will and pleasure that ail other religious seminaries and communities (that of the Jesuits only excepted) do for the present and until we can be more fully intbrmcvl 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

within our said province, remain upon their present establis'Sments. 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 Père 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 estat»^s and property, moveable and immoveable 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 conquest of 1769 and the provincial act. 17 Vic, ch. 11." (Signed) Edw. Blake. Ottawa, May 10, 1876.