Complete Works. Hamilton Alexander
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officers, whom he can displace and change as often as he pleases. For what can more nearly concern the safety and happiness of subjects, than the wise economy, and equitable constitution of those courts in which trials for life, liberty, property, and religion are to be conducted? Should it ever comport with the designs of an ambitious and wicked minister, we may see an Inquisition erected in Canada, and priestly tyranny hereafter find as propitious a soil in America as it ever has in Spain or Portugal.
But in order to varnish over the arbitrary complexion of the act, and to conciliate the minds of the Canadians, it is provided: “That whereas, the certainty and lenity of the criminal law of England, and the benefits and advantages resulting from the use of it, have been sensibly felt by the inhabitants, from an experience of more than nine years; Therefore, the same shall be administered and shall be observed as law, in the province of Quebec, to the exclusion of every rule of criminal law which did, or might, prevail in said province before the year one thousand seven hundred and sixty-four.”
As “it is in the goodness of criminal laws that the liberty of the subject principally depends,” this would have been an important privilege, had it not been rendered uncertain and alienable by the latter part of the same clause, which makes them “subject to such alterations and amendments as the Governor, Lieutenant Governor, and Commander-in-Chief for the time being, by and with the advice and consent of the Legislative Council of the same, shall, from time to time, cause to be made therein.”
Under the notion of necessary alterations and amendments, the king, through the medium of his creatures, the Governor and Council, may entirely new would the criminal laws of Canada, and make them subservient to the most tyrannical views. So that, in this respect, also, the principle of arbitrary power, which is the soul of the act, is uniformly maintained and preserved, in full vigor, without the least real or effectual diminution.
It has been denied, with the most palpable absurdity, that the right of trial by juries is taken from the Canadians. It is said that the provincial legislature of Canada may introduce them as soon as they please, and it is expected that they will, “as soon as the inhabitants desire them,” or “the state of the country will admit of them.”
A civil rights is that which the laws and the constitution have actually conferred, not that which may be derived from the future bounty and beneficence of those in authority. The possibility that the Legislature of Canada may hereafter introduce trials by juries, does not imply a right in the people to enjoy them. For in the same sense it may be said that the inhabitants of Frances, or Spain, have a right to trial by juries, because it is equally in the power of their Legislatures to establish them.
Since, therefore, it is apparent that a system of French laws has been established in the province of Quebec, and an indefinite power vested in the king, to vary and alter these laws, as also to constitute such courts of criminal, civil, and ecclesiastical jurisdiction and to introduce such a form of criminal law as he shall judge necessary; I say, since all this is deducible from the express letter of the act, or, in other words, since the whole legislative, executive, and judiciary powers are ultimately and effectually, though not immediately, lodged in the king, there can be no room to doubt that an arbitrary government has been really instituted throughout the extensive region now comprised in the province of Quebec.
NO. II
Having considered the nature of this bill with regard to civil government, I am next to examine it with relation to religion, and to endeavor to show that the Church of Rome has now the sanction of a legal establishment in the province of Quebec.
In order to do this the more satisfactorily I beg leave to adopt the definition given of an established religion by a certain writer who has taken great pains to evince the contrary. “An established religion,” says he, “is a religion which the civil authority engages not only to protect but to support.” This act makes effectual provision not only for the protection but for the permanent support of Popery, as is evident from the following clause: “And for the more perfect security and ease of the minds of the inhabitants of the said province, it is hereby declared that his Majesty's subjects, professing the religion of the Church of Rome, in the said province, may have, hold, and enjoy the free exercise of the religion of the Church of Rome, subject to the king's supremacy, etc., and that the clergy of the said Church may hold, receive, and enjoy their accustomed dues and rights,” etc.
This is represented as a bare permission to the clergy to enjoy the usual emoluments of their functions, and not as a legal provision for their support. Much stress seems to be laid on the word “may, “which is commonly italicized. But though the phraseology be artful, yet it is easy to perceive that it operates to the same effect as if it had been more positive and emphatical.
The clergy “may hold, receive, and enjoy their accustomed dues and rights.” They may if they please. It is at their option, and must depend upon their will; and, consequently, there must be a correspondent obligation upon their parishioners to comply with that will, and to pay those dues when required. What the law gives us an unconditional permission to enjoy, no person can legally withhold from us. It becomes our property, and we can enforce our right to it. If the Legislature of this colony were to decree that the clergy of the different denominations may hold, receive, and enjoy tithes of their respective congregations, we should soon find that it would have the same efficacy as if it were decreed that the several congregations should pay tithes to their respective clergy. For, otherwise, the Legislature might confer a right which had no correlative obligation, and which must, therefore, be void and inefficacious. But this is contradictory and impossible.
“Tithes in Canada,” it is said, “are the property of the Roman Church; and permitting a tolerated church to enjoy its own property, is far short of the idea of an establishment.” But I should be glad to know, in the first place, how tithes can be the property of any but of an established church? And in the next, how they came to be the property of the Romish Church in Canada, during the intermediate space between the surrender of that province to the English and the passing of this act? Nothing can be deemed my property, to which I have not a perfect and uncontrollable right by the laws. If a church have not a similar right to tithes, it can have no property in them; and if it have, it is plain the laws must have made provision for its support, or, in other words, must have established it.
Previous to the surrender of Canada the Catholic religion was established there by the laws of France; and tithes were, on that account, the legal property of the Church of Rome, and could not be withheld by the laity though ever so much disposed to it. But after the surrender this circumstance took a different turn. The French laws being no longer in force, the establishment of the Romish Church ceased of course, and with it the property which it before had in tithes.
It is true the clergy may have continued to receive and enjoy their customary dues, tithes, and other perquisites; but they were not for all that the property of the church, because it had lost its legal right to them, and it was at the discretion of the laity to withhold them, if they had thought proper, or to abridge them, and place them upon a more moderate footing. Their voluntary concurrence was necessary to give their priests a right to demand them as before. But by the late act this matter is again put into its former situation. Tithes are now become the property of the church as formerly, because it again has a legal claim to them, and the conditional consent of the people is set aside. Thus we see that this act does not, in fact, permit a tolerated church to enjoy “its own property,” but gives it a real and legal property in that which it before held from the bounty and liberality of its professors, and which they might withhold or diminish at pleasure; and this, in the most proper sense, converts it into an establishment.
The characteristic difference between a tolerated and established religion consists in this: With respect to the support of the former, the law is passive and improvident, leaving it to those who profess it to make as much, or as little, provision as they shall judge expedient; and to vary and alter that provision, as their circumstances may require. In this manner the Presbyterians and other sects are tolerated in England. They are allowed to exercise their religion without molestation, and to maintain their clergy as they think proper. These are wholly dependent upon their congregations, and can exact no more than they stipulate and are satisfied to contribute.