Parliamentary legislation on any subject of exclusively internal concern, in a British colony possessing a representative assembly, is as a general rule unconstitutional. It is a right of which the exercise is reserved for extreme cases, in which necessity at once creates and justifies the exception.
After showing that no necessity existed for setting aside the constitutional rights of the Canadian people, Lord Glenelg expresses himself in the following language of enlightened political philosophy:—
It is not difficult to perceive the reasons which induced Parliament, in 1791, to connect with a reservation of land for ecclesiastical purposes, the special delegation to the Council and Assembly of the right to vary that provision by any Bill which, being reserved for the signification of His Majesty's pleasure, should be communicated to both Houses of Parliament for six weeks before that decision was pronounced. Remembering, it should seem, how fertile a source of controversy ecclesiastical endowments had supplied throughout a large part of the Christian world, and how impossible it was to foretell with precision what might be the prevailing opinions and feelings of the Canadians on this subject at a future period, Parliament at once secured the means of making a systematic provision for a Protestant clergy, and took full precaution against the eventual inaptitude of that system to the more advanced stages of a society then in its infant state, and of which no human foresight could divine the more mature and settled judgment.
In the controversy, therefore, respecting ecclesiastical endowments, which at present divides the Canadian Legislature, I find no unexpected element of agitation, the discovery of which demands a departure from the fixed principles of the constitution, but merely the fulfilment of the anticipations of the Parliament of 1791, in the exhibition of that conflict of opinion for which the statute of that year may be said to have made a deliberate preparation. In referring the subject to the future Canadian Legislature, the authors of the Constitutional Act must be supposed to have contemplated the crisis at which we have now arrived—the era of warm and protracted debate, which, in a free government, may be said to be a necessary precursor to the settlement of any great principle of national policy. We must not have recourse to an extreme remedy, merely to avoid the embarrassment which is the present, though temporary, result of our own legislation.
I think, therefore, that to withdraw from the Canadian to the Imperial Legislature the question respecting the clergy reserves, would be an infringement of that cardinal principle of colonial government which forbids parliamentary interference, except in submission to an evident and well-established necessity.
In January, 1840, the two branches of the Legislature of Upper Canada passed a Bill (the Legislative Assembly by a majority of 28 to 20, and the Legislative Council by a majority of 13 to 4) relative to the clergy reserve—provided for the interests of their existing incumbents, and dividing the proceeds of the sales of said lands among various religious persuasions according to a census taken once in five years, and leaving each religious persuasion free to expend the sum or sums to which it should be entitled according to its pleasure, whether for the support of its clergy, the erection of places of worship, or for purposes of education. Though the great majority of the people of Upper Canada desired the application of the proceeds of these lands for educational purposes only; yet a majority of both branches of the Legislature agreed to a compromise which could be defended as just to all parties, whatever preferences might be entertained on the subject in the abstract. But instead of the Royal assent being advised to be given to that Canadian Bill on a local Canadian question, a new Bill was introduced into the Imperial Parliament, giving about three-fourths of the proceeds of the clergy reserves (including past and future sales) to the clergy of the churches of England and Scotland, giving nothing to any other church, but leaving the remaining one-fourth (or half of future sales) at the discretionary disposal of the Executive for religious purposes. This part of the Imperial Act has proved inoperative to this day; and should any religious persuasion receive any portion of this comparative pittance of the clergy land funds, it would do so not as a matter of right (as do the Churches of England and Scotland in receiving their lion's share), but at and during the pleasure of any party in power—a position in which no religious community should be placed to the Executive, and in which the Executive ought not to be placed to any religious community. Such an Act can be justified upon no principle of justice or sound policy, and is at variance with the almost unanimous and often recorded wishes of the people of Upper Canada. The Christian Examiner—a monthly organ of the Church of Scotland in Upper Canada—expressed not only the general sentiments of the members of that Church, but also of people at large, in the following words, contained in an elaborate editorial which appeared in that publication a few months before the passing of the Imperial Act of 1841:—
Year after year, at least during the last decade, the general sentiment in this colony has been uttered in no unequivocal form, that no church invested with exclusive privileges derived from the State, is adapted to the condition of society among us. It cannot be doubted that this is the conviction of nine-tenths of the Colonists. Except among a few ambitious magnates of the Church of England, we never hear a contrary sentiment breathed. Equal rights upon equal conditions is the general cry. And although several Assemblymen of the present House have chosen to misinterpret the public voice, and to advocate a different principle, we doubt not that on their next appearance before their constituents, they will be taught that this is not the age, nor this the country, in which the grand principle of equal rights can be departed from with impunity.
Now, although the Imperial Act of 1840 may have induced "a few magnates" of the Church of Scotland to unite with other "magnates," whom they once considered "ambitious," in denying the "grand principle of equal rights" to their more numerous Methodist brethren, and other religious persuasions, yet the "convictions of nine-tenths" of the Canadian people remain unchanged; nor will they, because of the changed circumstances of a few clergymen of the Church of Scotland, suffer "the grand principle of equal rights to be departed from with impunity."
5. I observe, likewise, that the continuance of the Imperial Act of 1840 is desired by a mere fraction of the Canadian population, while its repeal is demanded by that country at large. The assertions of any interested parties on a matter of this kind are of little weight against the proceedings and statements of the representatives of the people. The Address of the Legislative Assembly to Her Majesty must be regarded as the authoritative and true expression of the opinions and wishes of the Canadian people. It is true, there was diversity of opinion as to the manner in which the incumbents on the clergy reserve fund should be dealt with, and also as to certain other declarations contained in the Address of the Assembly; but no member of the Canadian Legislature ventured to justify the provisions of the Imperial Act, and very few ventured to vote in favour of its continuance, even upon the ground of expediency, in behalf of the "magnates" of two favourable Churches. When the resolutions of the Address to Her Majesty were moved in the Legislative Assembly of Canada on this subject, an amendment was moved by the supporters of the present exclusive privileges of the Churches of England and Scotland in Canada an amendment which contained the following words:—
That in the opinion of this House it is inexpedient to disturb or unsettle, by resolution or enactment, the appropriations or endowments now existing in Upper and Lower Canada for religious purposes; that the well-being of society and the growing wants of the various Christian bodies in Canada demand that the several provisions of the Imperial Act 3 and 4 Vic., cap. 78, should be carried out to their fullest extent.