PRESENT

The Honorable William Smith, Esq. Chief Justice President, Edward Harrison, George Pownal, François Baby, John Collins William Grant, Esquires.

IGxace FERLAND and others ofthe] Judgment in apppeal. arish of Ste. Marie, Nouvelle! The parties having

eauce. been fully heard by their Appellants. | counsel, it is by the con-

and sideration of this Court

François Josepa DEGuise Gurate | adjudged, that the judgof that parish. ment and all the proceed-

Respondent.] ings of the court below against the appelants be reversed with costs to be taxed by one of the judges of this Court.

And that the main ground of this adjudication may be shown it is suggested.

That while this country was under the government of France, the Bishop was a member of the Superior Council,

That the province was divided into parishes by the legislature of the day, the parishes subjected to tithes and to levies for the pu, .c buildings and other expenditures requisite for the maintenance of divine worship.

That the Bishop, on his building churches, had the patro nage of them ; and that all curates, and Ecclesiastics might by the Bishop be removed, restored or deprived.

That while the Bishop was left to his authority in spirituals and the exercise of his episcopal functions, the rights of the people were protected, and the Sovereignty of the Crown secured by the powers of the Intendant who held exclusively of the civil courts of the Prévoté of Quebec and royal court of justice of Montreal, and of all other inferior jurisdictions in the province, the right of representing the sovereignty in homologating ratifying and validating all such

transactions of the curate, the church wardens and parishioners (even after the Bishops sanction and approbation of their compacts) as might bring the parish with charge ; as 89. well as of executing his own decisions, for all assessments and repartitions upon the parishioners for the purpose aformentioned the Intendant exercising legislative authority in

tk the departments of justice, police, finance and the marine. by; That upon the conquest, the act of parliament of the 14th year of His Majesty's reign, commonly called the Quebec al. . act, secured to his canadian subjects (the religious orders EE and communities only excepted) their property and posses- ON- sions, their customs and usages relative theret”, and other UTC their civilrights and allowed to them the free exercise of the dg - religion of the Church of Rome, and to the clergy, their ac ns customed dues and rights.

| by That in constituting the frame of the provincial government under that statute his Majesty gave instructions, that be the courts of common pleas to be erected were to have full | power to hear and determine all civil suits and actions cog- | of uizable by the court of common pleas in Westminster Hall, | cil. according to the rules prescribed by the said act of parlia- | sla- ment, That altho’ that act of parliament authorised the | ies establishment of a colony legislature for making laws and for ordinances, it prohibited any ordinance touching religion, [1 and reserved to the Crown, the right of erecting courts fl tro of ecclesiastical jurisdiction, and the judges and officers | ght thereof, as his Majesty and his heirs and successors ii | might think neces-"v and proper for the circumstances I à iri- of the Province, bus that while it secured the inhabitants jo hts from all taxes and duties to be imposed by the said legisla- li the ture, power was given to it for such as any town or district | | ex- might be authorised by the legislative council, to assess, {H° and levy and apply within such town or district for the purnose "2000 ior of making roads, erecting and repairing public buildings, or |. the for any other purpose respecting the local convenience and cco- l ich nomy of such ton or district. 1.

That the provincial ordinance of the 17th year of his Majesty reign, passed under the authority of the said statute and his royal commission and instructions, for establishing the courts of common pleas, enacts. ‘ That the said courts “# shall have full power, jurisdiction and authority to hear ‘ and determine all matters of controversy relative to pro- “ perty and civil rights, according to the rules prescribed by “ the said statute and such ordinances, as might thereafter ‘“ be passed by the governor and legislative council.”

That the creation of a subordinate jurisdiction for the exercise of the ample and complicated powers of the French Intendant involves consideration of high consequence to the Crown and the Canadian subject, and does not appear to ha. ve been expressly or implicatively vested in the Court of Common pleas, or any other Court of the province as yet.established, but to remain for legislative deliberation, in a competent provision to be made, under all the guards requisite to the conservation of the religion of the people, the rights of the episcopal functions, the due protection of private property and the dependence of the colony upon the sovereignty af the Crown and Parliament of Great Britain ; a law doubtless attainsble on application to the Legislative Council, and in which the security of all concerned will require, that the powers of the Intendant be described with accuracy, and committed to a confidence adequate to its importance.

That the common pleas had no cognizance of the controversy, upon the pretext of executing a private .convention ; it appearing from the whole course of the proceedings in the parish of Ste. Mary, that all parties went upon the incautious mistake, that there actually was a judicial authority already substituted, to supply thatantiently committed tothe Zntendant ot representative of the legislative and protecting power of the Crown of France ; according to which every parishioner might be compelled to his proportionable contribution ; and it is observable thatthe very agreement or act of the parish,

was s0 far from warranting the idea that the subscribing parties only, were to bear the charge without the common aid of all the parishioners, as to give power to the curate to take course for its being homologated and rendered valid accor:ding to law (ainsi qu'il est de droit) to the end doubtless, that every inhabitant migh bear his part in an expenditure for the worship of God, as the duty and the intent of every family in the parish.

It results from the whole, that to set up the subscribed declaration of a part of the parish as a compact, neither corresponds with the letter nor intention of the subscribing parties. And that the question respecting it, was assumed by a judicature in whom if competent for the antient control, the great powers of the Zntendant are not by law as yet vested ; powers that controlled the Bishop and the people, and affected the Church and the state, and from which there was no appeal but immediately to the Crown ; and consequently that all the transactions of the common pleas of Quebéc in this concern, as coram non judice, must be annulled and reversed.