PUBLIC RECORD OFFICE
Reference :-
CO.885
3 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO |
No. 2.
Clergy Reserves. Construction of
c. 78.
4
"
subject to," or the copulative It is dangerous to specu-
the funds, the word "under" must be read as "and" must be inserted before the word "under." late upon the intention of the Legislature; but if we are at liberty so to do, the 7th section seems to me decisive of the question.
By the 4th section, the funds are to be divided into six parts; of these, two parts are to be expended under the authority of the Society for the Propagation of the Gospel, one part under the authority of the Commissioners to be elected under regulations to be made by the Governor, and by the 7th section the residue is 'to be applied by the Governor, with the advice, &c. If the regulations in the 5th section apply to the distribution of the funds, such a construction in connection with the 7th section would enable the Governor to apply the whole fund.
The question may fitly be submitted to the Law Officers of Scotland, the Church of Scotland being interested in the true construction of the Statute.
I have, &c.
The Right Hon. Earl Grey,
&c.
SIR,
&c.
&c.
No. 2.
(Signed)
JOHN JERVIS.
COPY of a LETTER from the SOLICITOR-GENERAL to Mr. HAWES.
Inner Temple, January 13, 1848.
I HAVE the honour to acknowledge the receipt of your letter of the 10th of June last, wherein you inform me that from communications accompanying statute 3 & 4 Vict. it (a list of which you subjoin), I should learn that the Governor of Canada, and the Society for the Propagation of the Gospel in Foreign Parts, place different constructions on the 5th Section of the 3rd & 4th Vict., cap. 78, which provides that the share of the Clergy Reserve Funds allotted to the Church of England in Canada shall be expended by that Society, under such regulations as shall be from time to time established by the Governor of Canada, with the advice of his Executive Council. The Society deny that the regulations to be made by the Governor are so to be made in reference to the expenditure of the funds in question. They ascribe a different object to them. The Canadian Govern- ment, on the other hand, appear to entertain no doubt that they are authorized by the Act in question to make regulations respecting the expenditure of these funds. You further inform me, that Lord Grey has directed you to request the Attorney-General and me to give him our opinion what is the proper construction of the Act in question in reference to the point thus debated between the Canadian Government on the one hand, and the Society on the other hand.
I have now the honour to report that I am of opinion that the regulations from time to time to be established by the Governor of Canada, with the advice of his Executive Council, are, upon the proper construction of the 5th Section of 3 & 4 Vict., cap. 78, to be made in reference to the expenditure of the funds, and not in reference to the mode of electing the Commissioners mentioned in the section; and I am further of opinion that the share of the Church of England to be expended under the authority of the Society is so to be expended under and according to such regulations.
The history of the Clergy Reserve Funds may be shortly stated. In 1774, the British Parliament passed an Act providing, among other things, for the encouragement of the Protestant Religion, and for the maintenance and support of a Protestant Clergy in Canada (14 Geo. III, cap. 83.) For this purpose, the landa since called the Clergy Reserves were afterwards appropriated by the Constitutional Act of the Canadas, and parsonages were endowed with them, as the Governor, with the advice of his Executive Council, judged expedient (31 Geo. III, cap. 31, sects. 36, 37, 38). A part of these Reserves was at one time allowed to be sold or exchanged for the improvement of the rest, or otherwise for the purposes for which the lands were originally reserved (7 & 8 Geo. IV, cap. 62), till at last, in 1840, they were finally disposed of by the Act in question (3 & 4 Vict., cap. 78). By it the Governor, with the advice of his Executive Council, and under such regulations as might be by him from time to time established in that behalf, and approved by the Queen in Council, was authorized
5
to sell them all, so much in every year; and the proceeds of the yearly income arising or to arise from the sale, was appropriated for the maintenance of religion and the advancement of Christian knowledge within the Province. By virtue of this Act, certain shares of these (and other) proceeds were allotted in different proportions to the Churches of England and Scotland in Canada, to be expended for the support and maintenance of public worship, and the propagation of religious knowledge the share of the Church of England to be so expended under the authority of the Society for the Propagation of the Gospel in Foreign Parts; and the share of the Church of Scotland under the authority of a Board of nine Commissioners, to be elected by the Synod or Synods of the Presbyterian Church in Canada, in connection with the Church of Scotland, under such regula- tions as should be from time to time established by the Governor with the advice of his Executive Council, and the residue was to be applied by the Governor with the advice of the Executive Council, for purposes of public worship and religious instruction in the province, that is to say, of religious bodies or denominations of Christians not belonging to either of the two Churches. Granting that the 5th section will bear the interpretation put upon it by the Society, I think it also bears the interpretation put upon it by the Govern- ment, without violating the meaning of the words, or the rules of grammatical construction. Granting also that an argument against the Government drawn from the concluding sentence of the 8th section, which, speaking of the
may application of the shares of the Churches under the authority of the Society and the Commissioners respectively, is silent about the regulations mentioned in the 5th section, it is observable that the application of the sums payable out of the Consolidated Fund is the object of the enactment in that part of the 8th section, and not the mode of applying them, which renders unnecessary any mention of the regulations.
be
Again, they say that the election of the Board of Commissioners is the only subject of regulation under the 5th section, as if there was anything in the nature or constitution of a Synod, which is a well-known body, to call for the Government's interference in order to regulate such an election, or to do so from time to time; while in point of fact, the Board has already been elected by the Provincial Synod, and performs all its functions without any regulations of the kind.
On the other hand, there may be good reason why the Government should propose schemes, and establish regulations for the due and proper expenditure of the funds in question before they are expended; for instance, the number, the sites, the costs of places of public worship, may reasonably be prescribed under the regulations of the Government, before they are built under the authority of the Society, and thus, when the annual accounts of the expenditure of these funds is rendered to the Government, any misappropriation or non- appropriation, or any neglect or abuse in the management, will more satis- factorily appear both to the Government and the Court, if the nature of the case calls for the summary remedy given by the 10th section.
However, since the Attorney-General puts a different construction upon the 5th section, in reference to the point in dispute between the Canadian Government and the Society, it becomes me to give my opinion, not without doubt.
B. Hawes, Esq., M.P.,
&c. &c. &c.
SIR,
I have,.&c. (Signed) DAVID DUNDAS.
No. 3.
Cory of a LETTER from the LORD ADVOCATE to Mr. HAWES.
Gwydyr House, February 25, 1848.
No. 3.
I HAVE now the honour to return your letter of the 27th January, with Clergy Reserves.
the document therein referred to, relative to the Clergy Reserve in Canada, Construction of
statute 3 & 4 Vict. c. 78.