The Established Church of Scotland claimed a share of those lands, or the proceeds, as a National Church within the Empire; and in 1819, the Crown lawyers made the discovery that it might be gratified, under the 37th clause of the 31st of George III., chap. 31. Next, the select committee of the House of Commons, in 1828, on the Civil Government of Canada, influenced by the spurious liberality of the times, extended this opinion of the Crown lawyers to any Protestant clergy.
The Bishop thus impugns the impartiality and integrity of the opinions expressed by the law officers of the Crown in England, and by the select committee of the House of Commons, sarcastically calling the one a "discovery," and ascribing the other to "spurious liberality;" while he declares that the Act 3 and 4 Victoria, chapter 78 (which only carried partially into effect the decision of the twelve judges, and was, as he states, agreed to by the Archbishop of Canterbury and the other Bishops in London), "deprived the Church of England in Canada of seven-twelfths of her property."
In other documents the Bishop has designated this Act "an act of spoliation," and "robbery" of the Church of England.
When the Bishop employs language of this kind in respect to Acts of Parliament and the official opinions in regard to their provisions, he cannot reasonably complain if other parties should respect them as little as himself, much less regard them as a "final settlement" of a question to which they have not been parties, and against which they have always protested. Under any circumstances, it is singular language to be employed by a person towards a government by whose fostering patronage he has become enriched. The fact is, that the successive Governors of Upper Canada have been members of the Church of England; that the principal cause of their unpopularity, and the most serious difficulties which both the Imperial and local governments have had to encounter in the colony, have arisen from their efforts to secure as much for the Church of England, in the face of the popular indignation and opposition, so much inflamed and strengthened by the irritating publications and extreme proceedings of the Bishop himself. It is understood that the report of the committee of the House of Commons on the civil government of Canada, in 1828, was written by Lord Stanley. However that may be, the sentiments of that report on the clergy reserve question were strongly expressed by his Lordship in his speech on the subject, 2nd May, 1828; and he and the other distinguished men who investigated the subject at that time, know whether they were "influenced by a spurious liberality" in the conclusion at which they arrived, or whether they were guided by a sense of justice, and yielded to the weight of testimony. At all events, the grave decision of the twelve judges of England to the same effect ought to have suggested to the Bishop other terms than those of "spurious liberality," "spoliation," and "robbery," and to have protected not only the "powers that be," but the great majority of the Canadian people, from the shafts of his harsh imputations.
Here I think it proper to correct the Bishop's repeated references to the origin and circumstances of the differences of opinion in Upper Canada, as to the import of the words "Protestant clergy," and the "right of dissenting denominations" to participate in the benefit of the clergy reserves. He represents those differences as having originated with the clergy of the Kirk of Scotland, and that the idea that any other than the clergy of the Church of England had a right to participate in the benefit of the reserves was never entertained in Upper Canada until the friends of the Kirk of Scotland commenced the agitation of the question.
So far from this representation being correct, it appears that the first submission of the question to the law officers of the Crown in England took place at the request of Sir P. Maitland, in reference, not to the clergy of the Kirk of Scotland, but to "all denominations" of Protestants—a question on which Sir P. Maitland, then Lieutenant-Governor of Upper Canada, states in a despatch to Earl Bathurst, dated 17th May, 1819, that there was not only a "difference of opinion" on the subject, but "a lively feeling throughout the Province." It appears that certain "Presbyterian inhabitants of the town of Niagara and its vicinity" (not at that time in connexion with the Church of Scotland), petitioned Sir P. Maitland for "an annual allowance of £100 to assist in the support of a preacher," to be paid "out of funds arising from the clergy reserves, or any other fund at His Excellency's disposal." In transmitting a copy of this petition to Earl Bathurst, Sir P. Maitland ("York, Upper Canada, 17th May, 1819,") remarks as follows:—
The actual product of the clergy reserves is about £700 per annum. This petition involves a question on which I perceive there is a difference of opinion, viz., whether the Act intends to extend the benefit of the reserves, for the maintenance of a Protestant clergy, to all denominations, or only to those of the Church of England. The law officers incline to the latter opinion. I beg leave to observe to your Lordship, with much respect, that your reply to this petition will decide a question of much interest, and on which there is a lively feeling throughout the Province. [See page 221.]
Earl Bathurst's reply to this despatch is dated "Downing Street, 6th May, 1820," and commences as follows:—
Having requested the opinion of His Majesty's law officers as to the right of dissenting Protestant ministers, resident in Canada, to partake of the lands directed by the Act of the 31st George III., c. 31, to be reserved as a provision for the support of a Protestant clergy, I have now to state that they are of opinion that though the provisions made by the 31st George III., c. 31, ss. 36 and 42, for the support and maintenance of a Protestant clergy, are not confined solely to the Church of England, but may be extended also to the clergy of the Church of Scotland, yet that they do not extend to dissenting ministers, since the terms Protestant clergy can apply only to the Protestant clergy recognized and established by law.
It is thus clear that the question of the right of different Protestant denominations to participate in the benefit of the clergy reserves did not originate in any claims or agitation commenced by the clergy of the Church of Scotland; that as early as the beginning of 1819, (only four years after the close of the last American War, during which, as the Bishop truly says, "the attachment of the inhabitants to the British empire was a second time signally displayed,") there was "a lively feeling throughout the Province" on the subject. The first Loyalist settlers, and their immediate descendants, were opposed to the Bishop's narrow construction of the Act 31st George III., chapter 31; their representatives in the Legislative Assembly maintained invariably the liberal construction of the Act; the select committee of the House of Commons in 1828, on the Civil Government of Canada, after taking evidence as to the intentions of the original framers of the law, expressed the same opinion, and that opinion was ultimately confirmed by the decision of the twelve judges in 1840. The Bishop is, therefore, as much at fault in his facts on this point, as he is in the language he employs in reference to Imperial legal opinions, and an Imperial Act of Parliament.