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chist under

any such diocese, shall receive under the provisions of said acts (2), deacon, minis in respect of any such appointment, any salary or other sum ter, or catewhatsoever out of the growing produce of the Consolidated Fund recited acts, of the United Kingdom. .

or under any

granted in

out of consoli

dated fund.

"Provided always, that nothing herein contained shall autho- letters patent rize any diminution during the life and incumbency of any pursuance bishop or archdeacon of any salary of which he is now in the thereof, to receipt; and that every minister, catechist and schoolmaster in receive salary the said dioceses to whom at the time of the passing of this act any sum has been appropriated and made payable as aforesaid under the said act of the fifth year of the reign of her present Majesty shall continue to receive the same, but no larger sum thereunder, so long as he shall hold the appointment, and, subject to any leave of absence which may be granted to him by the officer administering the government of the colony, perform the duties in respect of which such sum was so appropriated and made payable to him, or, subject as aforesaid, so long as he shall perform within the said colony such other duties as may be imposed on him by the bishop of the diocese in addition to, or in lieu of, the duties attached to the appointment which he now holds."

as at present

Sect. 2. "In the event of a vacancy of the said see or diocese Coadjutor of Jamaica the present coadjutor bishop shall, so long as he bishop to act administers the said diocese as such coadjutor, continue to act in case of in the same manner as at present as archdeacon of Middlesex" (a). vacancy of see The third section provides for an annual return to parliament of Jamaica. of money paid out of the consolidated fund for ecclesiastical purposes in the West Indies.

SECT. 4.-Church in Canada.

Lower

The conquest of the province of Quebec was completed in the Roman year 1759. The rights, privileges, lands or seignories holden Church in by the Roman Church previous to the conquest were secured by Canada. the articles of capitulation, and subsequently guaranteed by an act of the British parliament in 1774 (b). This act must be holden to recognize the Church of Rome as an, if not the, Established Church of Lower Canada; but in this legislative measure the Church of England was not altogether neglected, it being therein expressly provided (sect. 6), "That it should be lawful for his Majesty, his heirs or successors, to make such provision out of the rest of the said accustomed dues and rights, for the encouragement of the Protestant religion, and for the maintenance and support of a Protestant clergy, within the said province, as should, from time to time, be thought necessary and expedient."

In the year 1791, in consequence of a message from the Crown 31 Geo. 3,

(z) 6 Geo. 4, c. 88; 7 Geo. 4, c. 4; 5 Vict. sess. 2, c. 4.

In the Island of Jamaica.

(b) 14 Geo. 3, c. 83.

c. 31.

Claim by

to the parliament, the 31 Geo. 3, c. 31, commonly called the Constitutional Act of the Canadas, was passed. This statute contained provisions for the maintenance of "a protestant clergy." It has since been repealed.

Certain king's instructions were sent to the Governor of the Canadas in 1818; but they have ceased to be legally binding on the Church. A doubt having arisen whether rectors and parsons duly instituted did not become possessed of rights in all respects similar to those enjoyed by incumbents in England, and were entitled to tithes, etc., was set at rest by an act passed in 1823 by the colonial legislature.

About thirty years after the passing of the 31 Geo. 3, c. 31, Presbyterians. a claim was preferred by the Scotch Presbyterian clergy to a share in the provision made for the protestant clergy under the 36th and 42nd sections of that act. Various denominations of dissenters afterwards asserted a similar right; their claims, as well as the state of the church in Canada in 1827, were set forth in a Report of the Committee of the House of Commons.

Opinion of the judges as to the clergy

reserves.

In 1810 the subject of the clergy reserves underwent frequent and vehement discussion in both houses of parliament. The House of Lords finally resolved that certain questions should be put to the judges upon this subject, as well as upon an act of the colonial legislature with respect to them; and on the 4th of May, Chief Justice Tindal stated, "that, on the part of her Majesty's judges, he had the honour to represent to their lordships that all the judges of England, with the exception of Lord Denman and Lord Abinger, had met together in Serjeants' Inn, for the purpose of taking into consideration the several questions which their lordships had been pleased to propose to them; and that, after due discussion and consideration of the several subjects involved in these questions, they had agreed unanimously to the answers to be returned to them. Their lordships' questions were as follow:

1. Whether the words "a protestant clergy" in the 31 Geo. 3, c. 31, (ss. 35-42,) include any other than clergy of the Church of England, and protestant bishops and priests and deacons, who have received episcopal ordination? And if any other, what other? 2. Whether the effect of the 41st section of the 31 Geo. 3, c. 31, be not entirely prospective, giving power to the legislative council and assembly of either of the provinces of Upper or Lower Canada as to future allotments and appropriations; or whether it can be extended to affect lands which have been already allotted and appropriated under former grants? 3. Whether the Legislative Council and Assembly of the province of Upper Canada, having in an act "to provide for the sale of the clergy reserves, and for the distribution of the proceeds thereof," enacted that it should be lawful for the governor, by and with the advice of the Executive Council, to sell, alienate, and convey in fee simple, all or any of the said clergy reserves; and having further enacted, in the same act, that the proceeds of all past sales of such reserves which have been or may be in

vested under the authority of the act of the imperial parliament passed in the seventh and eighth years of the reign of his late Majesty king George 4th, intituled "An Act to authorize the Sale of part of the Clergy Reserves in the Provinces of Upper and Lower Canada" (y), shall be subject to such orders and directions as the governor in council shall make and establish for investing in any securities within the province of Upper Canada the amount now funded in England, together with the proceeds hereafter to be received from the sales of all or any of the said reserves, or any part thereof, did, in making such enactments, or either of them, exceed their lawful authority?'

"To the first question, the judges answered,

"We are all of opinion that the words "a protestant clergy" in the 31 Geo. 3, c. 31, are large enough to include, and that they do include, other clergy than the clergy of the Church of England.'

"And when their lordships asked, 'If any other, what other?' the judges answered, 'The clergy of the Church of Scotland.' "To the second question, the judges said,—

"We are all of opinion, that the effect of the 41st section of the statute is prospective only; and that the power thereby given to the Legislative Council and Assembly of either province cannot be extended to affect lands which have been already allotted and appropriated under former grants.'

"In answer to the last question, the judges said,

666

We all agree in opinion that the Legislative Council and Assembly in Upper Canada have exceeded their authority in passing an act "to provide for the sale of the clergy reserves, and for the distribution of the proceeds thereof," in respect of both the enactments specified in your Lordships' question; and that the sales which have been, or may be, effected in consequence, are contrary to the provisions of the statute of Geo. IV., and are therefore void "" (z).

This opinion of the judges was followed by the imperial 3 & 4 Vict. statute 3 & 4 Vict. c. 78. It was intituled "An Act to provide c. 78. for the Sale of the Clergy Reserves in the Province of Canada, and for the Distribution of the Proceeds thereof." By it the reserves were sold and the Scotch Presbyterians were admitted to a share in them. The 5th section enacts thus:

". . . . the share allotted and appropriated to each of the said churches shall be expended for the support and maintenance of public worship and the propagation of religious knowledge, the share of the said Church of England being so expended under the authority of the 'Society for the Propagation of the Gospel in Foreign Parts' . . . (a).

(y) 7 & 8 Geo. 4, c. 62.

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(z) Hansard, Parliamentary Debates, vol. liii. pp. 1156-1158.

Vide supra, p. 1784.
(a) Vide supra, p. 1770.

CHAPTER IV.

53 Geo. 3, c. 155.

If a bishop and three archdeacons

blished in

India by his Majesty's letters patent,

their salaries

to be paid by the East India Company.

CHURCH IN THE EAST INDIES.

THE first bishopric in the immense and increasing possessions of the East Indies was created by letters patent in 1814; and by 53 Geo. 3, c. 155, its revenues and jurisdiction were settled as follows:

Sect. 49. "And whereas no sufficient provision hath hitherto been made for the maintenance and support of a church establishment in the British territories in the East Indies and other parts within the limits of the said company's charter (a), be it shall be esta- therefore enacted, That in case it shall please his Majesty, by his royal letters patent under the great seal of the said United Kingdom, to erect, found and constitute, one bishoprick for the whole of the said British territories in the East Indies, and parts aforesaid; one archdeaconry for the presidency of Fort William in Bengal; one archdeaconry for the presidency of Fort St. George on the coast of Coromandel; and one archdeaconry for the presidency and island of Bombay, on the coast of Malabar; and from time to time to nominate and appoint a bishop and archdeacons to such bishopric and archdeaconries respectively; the court of directors of the said company, during such time as the said territorial acquisitions shall remain in the possession of the said company, shall, and they are hereby required to direct and cause to be paid, certain established salaries to such bishop and archdeacons respectively; that is to say, from and out of the revenues of the said presidency of Fort William in Bengal to the said bishop, five thousand pounds by the year, at an exchange of two shillings for the Bengal current rupee; and to the said archdeacon of the said presidency of Fort William, two thousand pounds by the year, at the like exchange; and from and out of the revenues of the presidency of Fort St. George, on the coast of Coromandel, to the archdeacon of the said presidency of Fort St. George, two thousand pounds by the year, at an exchange of eight shillings for the pagoda at Madras; and from and out of the revenues of the presidency and island of Bombay, on the coast of Malabar, to the archdeacon of the said presidency and island of Bombay, two thousand pounds by the year, at an exchange of two shillings and threepence for the Bombay rupee."

(a) The East India Company's charter.

Sect. 50. " . . . . the said salaries shall take place and com- Salaries to mence from and after the time at which such persons as shall be commence on taking office, appointed to the said offices respectively, shall take upon them the and to cease execution of their respective offices: and . . . . all such salaries when funcshall be in lieu of all fees of office, perquisites, emoluments and tions cease. advantages whatsoever; and . . . . no fees of office, perquisites, emoluments or advantages whatsoever, shall be accepted, received or taken, in any manner or on any account or pretence whatsoever, other than the salaries aforesaid, and such bishop

and archdeacons respectively shall be entitled to such salaries so long as they shall respectively exercise the functions of their several offices in the East Indies, or parts aforesaid, and no longer."

diction or

Sect. 51. " . . . such bishop shall not have or use any juris- Bishop to diction, or exercise any episcopal functions whatsoever, either in have no juristhe East Indies or elsewhere, but only such jurisdiction and functions, functions as shall or may from time to time be limited to him by except those his Majesty by letters patent under the great seal of the United limited by Kingdom" (b).

66

letters patent.

These provisions forbidding any exercise of episcopal functions outside the East Indies have since been modified by 15 & 16 Vict. c. 52, 16 & 17 Vict. c. 49, and 37 & 38 Vict. c. 77, s. 13 (c). Sect. 52. . . it shall and may be lawful for his Majesty, Modifications. from time to time, if he shall think fit, by his letters patent His Majesty under the great seal of the said United Kingdom, to grant to may grant to bishop by such bishop so to be nominated and appointed as aforesaid, such letters patent ecclesiastical jurisdiction, and the exercise of such episcopal such ecclesiasfunctions, within the East Indies and parts aforesaid, as his tical jurisMajesty shall think necessary for the administering holy cere- may think monies, and for the superintendence and good government of necessary. the ministers of the church establishment within the East Indies and parts aforesaid; any law, charter or other matter or thing to the contrary notwithstanding."

diction as he

Sect. 53. "That when and as often it shall please His Majesty Warrant for to issue any letters patent respecting any such bishopric or letters patent archdeaconry as aforesaid, or for the nomination or appoint- by president countersigned ment of any person thereto, the warrant for the bill in every of board. such case shall be countersigned by the president of the board of commissioners for the affairs of India."

The 89th section allows for outfit to the bishop the sum of

1,2007., and to each of the archdeacons 5007.

Sect. 2 of 4 Geo. 4, c. 71, repealed so much of the former act 4 Geo. 4, as related to pensions.

c. 71.

By sect. 3 of the last act, "It shall and may be lawful for His Pensions to Majesty, his heirs and successors, in manner in the said act bishops. mentioned, to grant to any such bishop who shall have exercised

(b) By the patent of the Bishop of Calcutta, an appeal is given from any sentence he may pronounce, by virtue of his ecclesiastical authority,

to the Archbishop of Canterbury.
(c) Vide infra, pp. 1812, 1813,
1816.

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