CLERGY RESERVES

‘“Instead of making a State provision for any one or more churches : instead of apportioning the Clergy Reserves among them with a view to promoting Christianity : instead of giving pensions or salaries to ministers to make them independent of voluntary contributions from the people: I would studiously avoid that policy, and leave truth unfettered and unimpeded to make her own conquests. Lawyers and physicians have no Clergy Reserves. They depend upon the support of the community which benefits by their labours. The professions of law and physic are well represented in this Assembly, and bear ample testimony to the generosity of the people towards them. Will good, pious and evangelical ministers of our holy religion be likely to fare worse than the physicians of the body, or the agents for our temporal affairs? Let gospel ministers, as the Scriptures say, live by gospel, and the apostolie maxim that the workman is worthy of his hire implies the performance of duty rewarded temporarily by those who impose it. There is no fear that the profession will become extinct for want of professors.”—DocToR JoHN RoLPH'S Speech on the Clergy Reserves in the Upper Cunadian Assembly in 1836.

SW known in our history as the Constitutional Act of 1791—contained certain enactments which were destined to produce a greater amount of animosity and

&& heartburning in Upper Canada than all other public

causes of discord combined. To the indefinite phraseology of those enactments must be referred the fiercest of the faction fights which periodically disturbed the peace of the Legislative Assembly for more than sixteen years before the Union. To them, and to the disputes arising out of them, is to be attributed the bitter hostility with which the Church of England was long regarded in Upper Canada by such of the religious population as did not subscribe to Episcopal doctrines. To them, more than to any other

Clergy Reserves. 193

cause whatever, the Upper Canadian rebellion owed its origin. Before the question to which these unfortunate enactments gave rise Was finally set at rest, they had also produced some of the most fervid debates ever heard within the walls of the United Parliament. They formed the key-note of several general elections, and largely shaped the policy of two successive Administrations. In a word, out of these enactments grew the vexed question of the Clergy Reserves.

By the 36th section of the Act His Majesty was authorized to reserve out of future grants of land within the Provinces of Upper and Lower Canada, as well as in respect of all past grants, a quantity equal in value to a seventh part of the lands so granted, for the maintenance and support of “ a Protestant Clergy.” Sections 38 to 41 provided regulations for the erection and endowment of rectories, one or more in every township or parish, “according to the establishment of the Church of England ;” and section 42 empowered the respective Legislatures of the two Provinces, subject to certain restrictions, to vary or repeal any of these enactments.

In Lower Canada no Reserves were set apart until the year 1796, and the Clergy Reserve question never assumed very formidable proportions there, except in so far as it was reflected, after the Union, as a purely party measure from the western section of the Province. Even in Upper Canada, which at the time of its creation as a separate Province was but sparsely populated, the ill effect did not make itself seriously felt until some years afterwards. In carrying out the provisions of the Act, instructions were given that the reserved lands should be intermixed with those granted to settlers ; the intention being to spread them over a large area, and to create a tenantry in each individual township which should be settled, with a view to the ultimate creation of parishes. It was however impossible to apply this rule universally, as much of the Niagara peninsula, and also a part of the Western District, as well

194 The Last Forty Years.

as several townships along the St. Lawrence, had already been granted to U. E. Loyalists, without any portion thereof having been reserved. To meet these cases, large blocks of aggregated Reserves were set apart in adjoining townships which had not been taken up for purposes of settlement. It is obvious that such a system as this must sooner or later operate very prejudicially to the progress of the country where it is tolerated. It was felt as an obstruction to the settlement of the Province long before it assumed the shape of a grievance on religious grounds.* For many years no authority existed for selling the reserved lands. The Church of England claimed and exerted exclusive right and control over them, contending that the clergy of that Church, and they only, were entitled to be regarded as “a Protestant Clergy.” A clerical corporation was established with power to grant leases for twenty-one years, and proceeded to create leasehold tenancies in favour of such approved persons as applied for them. The amount of rent charged was at first little more than nominal, but the free granting of lands by the Crown prevented much demand for leaseholds at any price. “So late as 1824,” says a Canadian journalist, writing in 1851, “the whole amount due for rent was only £1,200; and of this it was estimated that not more than one-third could be collected without having recourse to legal process.”+ It was thus evident that the leasing system was not a success. The Reserves were unpopular with all but adherents of the Church of England, being regarded as obstructions to settlement, and as standing witnesses of the domination of a privileged hierarchy.

In 1817 a series of resolutions was introduced into the Assembly proposing a sale of half the lands reserved, and the application of the proceeds to secular purposes. These resolutions were unpro-

*‘“Religious Endowments in Canada. A Chapter of Canadian History,” by Sir Francis Hincks, K.C.M.G., C.B. London, 1869; p. 3,

+ See North American, September 5th, 181.

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ductive of any immediate result, owing to the summary and premature prorogation of Parliament by the Lieutenant-Governor; but they drew general attention to the fact that the Reserves were a serious abuse, and a drawback to the material progress of the country. Robert Gourlay also, during his ill-starred sojourn in Upper Canada, contributed by his literary and oratorical efforts to a public awakening on the subject. Meetings were held in various parts of the Province. Speeches directed against the arbitrary pretensions of the Church of England were made by zealous Presbyterians and Methodists. The Reserves found a strenuous champion in Dr. Strachan, Rector, a, : afterwards Archdeacon of York, but better known in later times as Bishop of Toronto. The Doctor, in addition to being a man of superabundant energy and fertility of resource, was the mouthpiece of the Family Compact, and the zealous upholder of the doctrines of the Church of England. His influence over the Executive was for years almost unbounded, and he was able to make the most of such technical arguments as his side of the case presented. Nor were those arguments without plausibility. The Clergy Réserves were an undoubted abuse, but it would be a great mistake to suppose that no strictly legal case could be made out for the exclusive claims set up in respect of them by the Church of England. That Church had, by implication, obtained at least partial State recognition at the hands of the framers of the Constitutional Act. The territory thereby authorized to be set apart was, as has been seen, declared to be for the support of ‘a Protestant Clergy.” Although the Anglican C° *ch had not been designated by name, there were grounds for argu :g that that Church had been intended as the exclusive recipient of the State bounty. In those days, the word “ clergy ” was not ordinarily employed to designate any ministers of religion except those of the Church of Rome and those of the Church of England, and it had never been so employed in any Act of the British Parliament. The

196 The Last Forty Years.

Church of Rome was of course excluded by the term “ Protestant ;” 50 that, according to this strictly technical argument, the only remaining factor was the Church of England. Then, 4s has been seen, the Act contained clauses making provision for the establishment of parsonages and rectorit which are peculiarly Church of England institutions, Within two years after the time when the Act came into operation, an Anglican Bishopric had been established in Canada. Governor Simcoe and his coadjutors in the founding of the Upper Province had all been zealous for the establishment of the Church of England there on a sure basis. Their zeal was doubtless due quite as much to political as to theological motives, but it was none the less an indication of the purpose which the Clergy Reserves had been intended to effect. We may be sure that Dr. Strachan made the most of such arguments as these, and that the Church of England in Upper Canada lost nothing in those days through the diffidence of her advocate.

On the other hand, supposing the foregoing argument to be unanswerable as matter of law, it was jurely technical in its character, and did not go to the root of the matter. The Clergy Reserves, by the extent to which they retarded settlement, were already beginning to make themselves felt as a national curse. If the law was in favour of their retention, it was clearly a bad law, and should be speedily repealed. Such was the plea put forward by ‘“dissenters,” as they were called, and even by a few liberalminded lay Episcopalians. But dissenters were not disposed to grant the exclusive claims of the ministry of the Church of England to be regarded as the only “ Protestant Clergy.” That term, they argued, had been employed by the framers of the Constitutional Act in contradistinction to the clergy of the Church of Rome, and not as intended to exclusively indicate the clergy of the Church of England. Moreover, the term “ Incumbents or Ministers of the Church of Englar*” had been used in the Act, and it was contended that

Clergy Reserves. 197

such a phrase would not have been employed if it had been regarded as synonymous with the expression “ Protestant Clergy.” The clauses providing for the establishment of parsonages and rectories, it was argued, referred merely to matters of detail, and could not be allowed to override the larger intention of the Act, which was to make provision for a Protestant—as distinguished from a Roman Cutholic—Clergy. The Presbyterians had a distinct argument of their own. By the Act of Union of the two kingdoms of England and Scotland it was made a fundamental article that “the true Protestant religion” as then professed in Scotland, “with the worship, discipline, and government ” of that Church, should be effectually and unalterably secured within the kingdom of Scotland. The Church of Scotland having thus been recognized by the State as a Protestant Church, surely the ministers thereof were entitled to be regarded as a ‘“ Protestant Clergy.” Several British statutes passed subsequent to the Constitutional Act of 1791 expressly referred to them as “Clergy.”’* This contention was fully sustained in 1819 by the English law officers of the Crown, to whom the question was then referred by the Imperial Government in consequence of a À despatch from Sir Peregrine Maitland. * We are of oninion,” wrote Ÿ those eminent jurists, “that though the provisions made by 31st Geo. III, c. 31, ss. 36-42, for the support and maintenance of a Protestant Clergy, are not confined solely to the Clergy of the Church of England, but may be extended also to the Clergy of the Church of Scotland, if there are any such settled in Canada (as 4 appears to have been admitted in the debate upon the passing of the Act); yet that they do not extend to Dissenting Ministers, since we think the term Protestant Clergy can apply only to Protestant Clergy recognized and established by law.” Meanwhile the Reserves were every year becoming more and

* See, for instance, 48 Geo, IIL., c. 138 ; 50 Geo, III., c. 84 ; and 5 Geo, IV, c. 72,

198 The Last Forty Years.

more valuable, and had begun to yield a considerable revenue. The right of the Church of Scotland to participate in this revenue having been recognized by the law officers of the Crown, its adherents soon afterwards began to press their claims. Mr. William Morris, whom we have met in more recent times as a member of Lord Metcalfe’s Government, moved and carried a series of resolutions on the subject in the Upper Canadian Assembly. Upon these an Address to the King was founded, praying chat His Majesty would direct such : measures as would secure to the Clergy of the Church of Scotland such support as might be thought proper. The Church of England, through Dr. Strachan, put forth its weightiest efforts to oppose the Presbyterian claims, and to substantiate its own alleged right to ex-

clusive control of the Reserves. The Doctor soon afterwards repaired Ë : to England, backed by the influence of Sir Peregrine Maitland, to i ; urge the Episcopalian side of the argument at the Home Office. à è His efforts were for the time unproductive, as to the main à purpose to which they were directed, though there can be no è

doubt that he gained many advocates for his views. Time fails us to follow the history of the question in detail down to the time of the Union. The ministers of other Protestant denominations put & forward claims on behalf of their respective sects to participate in à the Reserves, upon the ground that they, no less than their Episco- : palian and Presbyterian brethren, were entitled to be regarded as a

“ Protestant Clergy.” It soon became apparent that no equitable Le apportionment would ever be effected, even if the Legislature could ê be induced to assent to such a project. There were many persons 1

also who disapproved of State aid to religious bodies ; and erelong an agitation arose for the total abolition of such aid. An organized Reform Party came into existence, and battled vigorously for the secularization of the Reserves—that is to say, for the diverting of them from religious purposes by a sale of the lands, and the application of the proceeds to education and municipal improvements.

Clergy Reserves. 199

Every session of the Assembly was marked by hot debates on the subject. The advocates of secularization repeatedly carried their point in the Lower House, but were checkmated by the refusai of the Legislative Council to concur. The Council was appointed by the Executive, and for many years the Executive was the mere tool of Dr. Strachan. Thus it was that the clause in the Constitutional Act authorizing the Provincial Legislature to “ vary or repeal ” its provisions was a dead letter. And it may here be remarked that this was the conjunction of circumstances that first gave rise to the agitation for Responsible Government in Upper Canada.

In January, 1836, Sir John Colborne, Lieutenant-Governor of the Province, gave way for Sir Francis Bond Head. A few days before his departure, and while his successor was actually on the way from New York to Toronto, Sir John, at the instigation of the Executive Council. created and endowed forty-four* rectories in Upper Canada They were endowed with more than 17,000 acres of land, giving an average of about 386 acres to each. They were put in possession of clergymen, who thus acquired a quasi-personal interest in the lands, which interest, it was believed, would prevent the latter from being ousted by course of law. When this proceeding became known the public indignation was tremendous. Such a complete disregard of the popular wishes on the part of the Executive was intolerable, Meetings were held at which the action of his Excellency was denounced, and the newspapers spoke out with a plainness not to be mistaken. Petitions were sent across the Atlantic praying that che act of Her Majesty's representative might be annulled+ The legality of the transaction was disputed, and the law officers of the

* Not fifty-seven, as stated in the histories, Thirteen of the patents were left unsigned by the Lieutenant-Governor, and the authorities refused to complete or recognize them.

+ ‘The temper of the publie mind became imbued with that sullenness which a sense of injury begets, and which forebodes the approach of civil commotion.”—North American, October 24th, 1851,

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200 The Last Forty Yeurs.

Crown, to whom the question was referred, pronounced on the facts before them that the creation and endowment were not “valid and lawful acts” This opinion having been communicated to Dr. Strachan, that reverend gentleman prepared an elaborate report, embodying various facts and documents which had not previousiy been submitted to the law officers. The latter accordingly considered the case in the new aspect thus presented, and arrived at the conclusion that the creation and endowment were legal. The arrangement, therefore, was not disturbed.

The rebellion of 1837-38 came and went, leaving the great Clergy Reserve problem yet unsolved. Scarcely were the embers of disaffection extinguished ere the agitation for secularization burst forth afresh. The Union project caused a lull in the storm. Upon the arrival in Upper Canada of Mr. Thomson—afterwards Lord Sydenham—that gentleman perceived the utility of settling the question before the Union Act should take effect. At his instigation an Act was passed by the local Assembly providing for a distribution of the Reserves among the various religious denominations recognized by law. Through the personal influence of the Governor-General the assent of the Legislative Council to the measure was also procured. It was hc vever an unpopular measure with all classes, and recognized a principle against which a great majority of the people’s representatives in the Assembly had for years contended; namely, that State property may justly be appropriated for religious purposes. Of this the Governor was well aware, but he was desirous of settling the question in some way, and this was the most equitable to which he could then obtain assent. No man of less energy and finesse could have succeeded in getting such a measure through either House of Parliament. When its provisions became known, petitions against it began to circulute throughout the Province. They however proved to be unnecessary. The English judges, on certain technical grounds not necessary to be here specified, pro-

Clergy Reserves. 201

nounced the Act to be ultra vires, and it was accordingly disallowed.* But the necessity for promptly dealing with the matter was recognized by the Home Government, and an Imperial Act was framed and passed during the session of 1840 (3 and + Vic. c. 78), authorizing the Governor, with the advice of his Council, to sell and distribute the Reserves. It was enacted that no further reservations should be made, and that the proceeds of previous sales should be distributed between the Churches of England and Scotland, to the exclusion of all other denominations, in the proportions of two-thirds and one-third respectively. All future proceeds were to be divided as follows: one-third to the Church of England, one-sixth to the Church of Scotland; and the residue to be applied by the Governor, with the advice of his Council, “for purposes of publie worship and religious instruction in Canada.” The meaning of the latter provision was that the residue should be apportioned among such dissenting denominations as chose to apply for a share of it,

For several years subsequent to the Union this arrangement was allowed to rest undisturbed, It was inevitable, however, that the agitation shoul\ be renewed sooner or later, for the distribution as settled by the Act was inequitable, and founded on an erroneous construction of the census. The spiritual peers in the Upper House, moreover, were doubtless in a great measure responsible for the framework of the Act, and it was hardly to be expected that those reverend prelates would be able to approach the consideration of such a subject with a perfectly unbiassed mind. The very principle of the grant was unpalatable to certain denominations, which declined to avail themselves of it. The Disruption in the Scottish Church in 1843 was reflected in Canada soon afterwards, and doubtless precipitited the revival of the Clergy Reserves agitation. In 1844 many k formers in Upper Canada contended that secularization should be made a plank in their party platform. Thenceforward down to the

* Ante, Vol. I., p. 66,

202 The Last Forty Years.

period at which the narrative has arrived the agitation gained strength. The Church of England, which already enjoyed the lion’s share of the State grant, bestirred itself to gain further advantages. During Mr. Sherwaod’s tenure of office as Solicitor-General he proposed an address 10 the Crown praying for a new Imperial Act authorizing a division of the land itself, instead of the income arising therefrom. The object was to enable the Church Societies to lease the lands, or to hold them at prices which would practically exclude them from the market. The motion was rejected by a majority of 37 to 14 The debate upon it plainly proved that some of the leaders of the Reform party were opposed to any reopening of the matter. Mr. Baldwin expressed his regret that it had been thought necessary to bring the question again before Parliament. He regretted it, he said, on account of the Church whose name was associated with it, and of which he was an humble member; he regretted it on account of the Province at large, but more especially that part of it which had suffered from former agitation, and which, because of its more direct connection with the subject, was more susceptible of injurious excitement. He concluded a rather lons speech by requesting both sides of the House to forbear reviving the question, adding that he had done all in his power to discourage its revival by those with whom he was accustomed to act. Mr. James Hervey Price, who was a Congregationalist, followed in the same strain. He stigmatized the Clergy Reserves as the chief cause of the rebellion, and as “one of the greatest curses that could have been inflicted on the land.” He added, however, that the settlement under Lord Sydenham had been considered as final, Peace had succeeded the long and fie” - ‘onflict, and the country was settling down in the hope that agitation on the subject was at an end. Although three-fourths of the people believed that the arrangement had been made in injustice and partiality, they quietly submitted as the only means of restoring peace to th land. It is a significant

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Clergy Reserves. 203

fact that. notwithstanding these remarks, Mr. Price was the man who some years afterwards moved the address in the Assembly for the repeal of the Imperial Act, with a view to the secularization of the Reserves by the Canadian Legislature.

No sooner had a Reform Government succeeded to power, in 1848, than it became evident that a large majority of the Upper Canadian people were thoroughly aroused on the subject. A cry rose up from end to end of the Province that the project of secularization had been long enough delayed, and the Ministry were importuned to lose no time in carrying it out. A matter very frequently lost sight of, however, both then and subsequently, by persons unfamiliar with the constitution, was that before any useful legislation could be set on foot by the Canadian Parliament the repeal of the Imperial Act of 1840 must be procured. The new Administration, as we have seen, was formed while the session of 1848 was in progress. That session came to an end a few days afterwards, and the remainder of the year was spent by the Government in preparing urgent legislation for the session of 1849. The latter was one of the busiest sessions known to our Parliamentary history, and was also, for reasons well known to the reader, one of the most disturbed. But the agitators generally looked for some official expression of opinion from the Government on the subject, and were not a little chagrined when the year 1849 passed away without any such expression having been uttered. A moody, discontented feeling began to take possession of the more advanced radicals, and the Clear Grits, as has been seen, formed themselves into a distinct third party, with secularization as one of their main purposes. When the Houses met in 1850 it became known that no steps had been taken to procure the repeal of the Imperial Act,

Such was the aspect of affairs at the opening of the session of 1850. And the end was not yet. Four more sessions were to elapse ere the irritating Clergy Reserves question was to become a thing of the past.

204 The Last Forty Years.

The quantity of Reserves in the Lower section of the Province was small as compared with those in the Upper, and, as has been seen, the question never became one of paramount importance there. But Lower Canada had a grievance of her own which had begun to make itself listinctly felt long before the Union, and had ever since been constantly thrusting itself upon public attention. This was the Seigniorial Tenure tbe nature of which has been to some extent indicated on a former page.* It dated back to the early days of the colony, when the aristocracy of New France—having obtained from the most Christian king, or his intermediaries, patents of large tracts of the colonial dornain—imported the feudal system into the New World, by constituting themselves seigniors, and granting out small holdings to soldiers and others who settled in the colony. These holdings were not granted in fee simple: a tenure unknown in Canada until after the Conquest: and the title conferred was in no sense absolute. À perpetual right of occupancy was however guaranteed by the seignior, subject to the performance by the occupant (called the censitaire) of certain specified services, and the periodical payment of, a specified rent. The tenancy, such as it was, descended to the heir of the occupant, who stood in the same relation to the seignior or his heir as his ancestor had done. The amount of rent was at first little more than nominal, but the duties to be performed were sometimes onerous, and sometimes even absurd, The censitaire possessed the right of disposing of his holding, but upon every transfer the seignior was entitled to exact a fine equal in amount to one-twelfth of the price. Milling and other vexatious monopolies were exercised by the seignior, and prevented the development of industry.+ In some cases the seignior also claimed cer-

* Ante, Vol. I,, p. 53,

+ “To grind his grain at the seignior’s mill, bake his bread in the seignior’s oven, work for him one or more days in the year, and give him one fish in every eleven, for the privilege of fishing in the river before his farm ; these were the most annoying of the conditions to which the censitaire was liable,”—‘The Old Régime in Canada,” by Francis Parkman, pp. 250, 251.

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Clergy Reserves. 205

tain arbitrary privileges of a harassing nature, the exaction whereof led to great discontent and ill-feeling. A seigniory was frequently the subject of bargain and sale, and the purchaser was sometimes a person of humble origin, whose social ascendency was tolerated by the censitaires with ill-concealed aversion.* Under such a state of things the French Canadians grew up from generation to generation ; but as time passed by the condition of the country improved, and the seigniorial claims proportionately increased in value. After the Conquest, many of the seigniors, driven by their own necessities, began to make encroachments upon the rights of the censitaires, and to levy exactions which were clearly illegal. Rents were aised, and monopolies were enforced with a rigorous hand. The want of education and practical knowledge on the part of the unlettered Labitant enabled his feud2l lord to overstep the law with comparative impunity, and with such facilities for wrongdoing it was inevitable that gross abuses of power should occasionally come to light. Long before the period at which the narrative has arrived this Seigniorial Tenure had begun to be felt as at once a grievous burden upon the censitaire and an obstruction to the country’s progress. This was more especially the case in cities and towns, where the objectionable features of the system naturally made themselves more conspicuous than in the rural districts. In the District of Montreal, where the rents were higher than in Quebec, the grievance was especially obnoxious. The “commonalty” by degrees awoke to the fact that they were living in a state of serfdom from which it was desirable that they should emancipate themselves. Such a relic of feudal times as the Seigniorial Tenure was totally unsuited to the condition of a progressive country, and the clamour for its abolition increased

#4 A trader or a thrifty habitant might, and often did, becomethe buyer. If the Canadian noble was always a seignior, it is far from being true that the Canadian seignior was always a noble, ”—#The OÙ Régime in Canada,” p. 254.

206 The Last Forty Years.

year by year. It found few defenders, even among the seigniors themselves. The chief difference of opinion arose as to the question of commutation. The more advanced radicals advocated the total and immediate sweeping away of the entire system, without making any recompense to the seigniors. Persons of more moderate opinions admitted the right to compensation which the seigniors had acquired by prescription, and advocated a joint commutation of the cens et rentes by the State and the censitaires. An Act passed in 1849 afforded certain facilities for an optional commutation, but its provisions afforded little or no practical relief to the censitaires, who refused to accept the measure as an adequate remedy for the evils to which they were subjected.

Such were the most prominent features of the great question of the Seigniorial Tenure, which, jointly with that of the Clergy Reserves, was to engross a considerable share of the debates during every session for several years to como,