Church and State

Front matter

CHURCH AND STATE

BY

"Qui tacet consentire videtur."

Introduction

CHURCH AND STATE.

My recent Pamphlet on "Civil Liberty in Lower Canada" has elicited much comment, and provoked some adverse criticism. The latter appears to resolve itself into two allegations, one of which charges me with the desire to provoke religious animosity for private or political ends; the other, which pronounces my fears groundless, and the position I assume unwarranted either by facts, or by logical deduction from known utterances of the Roman Catholic Hierarchy.

To the former charge against myself personally, no lengthened reply is necessary. As regards private or political objects, it is unworthy even of a disclaimer; while from the accusation of seeking to raise a strife of creeds, I can appeal to the record of upwards of thirty years of public life, most of which has been spent in Parliament, both in and out of office, and many years during a period when the most vigorous efforts were made to excite an anti-Catholic agitation; and I can challenge any one to produce a speech or vote by me calculated to wound the feelings or consciences of my Roman Catholic fellow subjects. If such a record be of any value, it should be accepted as my justification, in now presuming to address both Roman Catholics and Protestants alike, for the purpose of entreating them to recognize in time, the grave dangers which threaten the peace of our common country, through the aggressive character of the Roman Catholic Hierarchy, and the irreconcileable conflict they are provoking between the Civil and Religious divisions of society.

The second allegation is more important, as, if my fears are really groundless, and unsustained either by fact, or by reasonable deduction, then my interference has been mischievous, and is not even to be excused by any moderation or liberality displayed by me in the past.

The subject will be most effectively treated by its examination under three distinct heads of inquiry, which may be said to embody in their solution all that was said or implied in my pamphlet.

1st.—Has the attitude of the Roman Catholic Church towards Civil Society changed since Confederation; and has such change been signalized in Lower Canada by overt action?

2nd.—Has such change affected the general rights of Protestants, as citizens of Quebec; and especially, weakened their guarantees obtained at Confederation?

3rd.—Is the issue thus raised Political or Religious?

In dealing with subjects of such importance, I shall have to avail myself largely of the material supplied in the course of the controversy between Mr. Gladstone and his distinguished opponents, Cardinal Manning and Dr. Newman. My sole regret is that I cannot borrow, with equal ease, the lucid and cogent reasoning which distinguishes the writings of the eminent English statesman.

To prevent misapprehension, I desire to state most explicitly, in the words of Mr. Gladstone:

"I desire to eschew not only religious bigotry; but likewise theological controversy. Indeed with theology, except in its civil bearing,—with theology as such—I have here nothing whatever to do. But it is the peculiarity of Roman theology, that by thrusting itself into the temporal domain, it naturally, and even necessarily comes to be a frequent theme of political discussion."

In the course of my remarks, I shall frequently have occasion to make use of the term "Roman Catholic Church," which I desire may be understood as designating its government and polity, not as referring to it as a system of religious faith. Without this explanation I might be understood, as entering on the domain of polemical discussion in some of my references.

Part I

1

Has the attitude of the Roman Catholic Church towards Civil Society changed since Confederation; and has such change been signalized in Lower Canada by overt action?

The Confederation of the British North American Provinces was proclaimed on the 1st July, 1867, and the antecedent discussions may be definitively stated to have commenced at the Charlottetown conference, in September, 1864.

The Syllabus Errorum was issued by the authority of Pope Pius IX, on 8th December, 1864.

The Vatican Council met at Rome on the 8th Dec, 1869. And the celebrated Dogmatic Decrees were promulgated on the 18th July, 1870.

It is therefore evident that if the Syllabus and the Vatican Decrees have in any way altered the relations of the Church of Rome towards civil society, the first division of the question must be answered affirmatively.

Although this might, I think, be taken for granted, in view of the manner in which these extraordinary dogmas are regarded in the principal countries of Europe; yet, before proceeding to treat of their effect in the Province of Quebec, it will be interesting to offer some observations upon the general subject, as bearing upon their special application to ourselves.

It is familiar to all that the Vatican Decrees are intended to be the conclusion of many ages of agitation and strife in the Roman Catholic Church. For centuries the contest has been waged between the Ultramontanes and their opponents. It found expression in the contradictory acts of previous Ecumenical Councils; it produced most serious schisms; and it developed itself even in the extraordinary rivalry of co-existent Popes. Considering the attitude always maintained by France in the struggle, no one would have expected, to witness in our day, the apparent triumph in that great country of the advocates of supreme ecclesiastical Roman authority. Louis IX, better known as Saint-Louis, was perhaps the first, certainly the most distinguished, King of France who determinedly opposed the Papal aggression upon the Episcopate and Crown of France, and upheld what have since been known as the Gallican Liberties, and in the long train of Sovereigns who succeeded him, no sign of surrender of these highly prized rights had been given.

What may have led to the present outward submission of the Episcopal and Civil Authorities of France to the Vatican Decrees, and their consequences, can only be conjectured. But that the termination of the conflict was approached with feelings of the utmost apprehension by many great and good men of the Catholic faith is well known, and was even abundantly shown at the Vatican Council itself. But among the many prayers for wiser counsels, I have met with none more solemn than that mournful appeal from Count Montalembert, in his letter to Dr. Von Dollinger, of 7th November, 1869, written shortly before his death.

Count Montalembert has such a world-wide fame as a Roman Catholic Christian of the highest and purest type, and occupied such intimate relations to Monseigneur Dupanloup, the great and good Bishop of Orleans, and to the Grallican Clergy of France, that his words must carry much weight with his kinsmen by race and religion in Canada. He says in writing to Dr. Von Dollinger praying him to attend the Vatican Council, and oppose the Ultramontane party:

Now, I am your friend, and one whose voice comes to you, as it were, from the other world. I have already lain down alive in my coffin, but the coffin is not yet closed. That is the place whence I observe, with the disinterestedness and impartiality of a dead man, all that passes in this world, and it is thence that I can speak with the authority of a dead man, to those who are still willing to hear me. In my eyes, no consideration would justify your absence from this Council, if you have the means of being present at it, and if, as Mgr. Dupanloup tells me, Cardinal Schwarzenberg has insisted, and still insists with the Roman authorities, that you should be summoned, no obstacle ought to prevent you from complying with this desire.

I swear to you that if I could espy any means whatever for myself, a simple layman, to be admitted to the Council, nothing should stop me. Wretched as my health is, I should strive to drag myself to Rome, even if I were to die upon the road, and supposing once I got there, I could not get an opportunity of speaking, I should go if it were only to protest by my presence, by that sad and steady look of which Bossuet speaks, against the rascalities which are going to be enacted, and are likely to triumph.

And I, I am nothing, I never have been anything in the Church, but you, who are unquestionably the first man in the Church of Germany, how could you refuse the mission of defending her, and representing her in this formidable crisis? God has bestowed upon you a blessing whose value you can never know, in granting you not merely a long life, which is a very small thing, but an old age without debility. It is your duty in return to consecrate this priceless gift to the glory of His Church and the defence of the truth.

The sense of coming evil must have been overwhelming in the mind of this eminent man, when he penned these lines, and the remainder of the letter from which they are quoted.

In France, therefore, it cannot be denied that a mighty change has occurred since 1870 in the attitude of the Church, when we see the cherished liberties of centuries swept away.

In Germany the conflict created with Civil power, through the Vatican Decrees, is still more evident, and pregnant with instruction to our Hierarchy here, if they will receive the lesson. There Prince Bismarck has recognized the extent to which the claims of Rome are being enlarged, and has met them by the severest measures of repression. The celebrated Falck Laws, which probably go much further than was necessary for the assertion of the civil supremacy of the State, plainly indicate the grave dangers that follow extreme pretensions on either side.

In Great Britain the profound interest evinced in the controversy between Mr. Gladstone and his opponents, affords sufficient evidence that there also the Vatican Decrees are regarded with apprehension and jealousy.

It will, therefore, scarcely be questioned—that in Europe—since 1870, a most marked change has taken place in the relations of the Church of Rome towards Civil States. But perhaps no better corroborative evidence of the truth of this statement can be offered, than the fact, that ever since the adjournment of the Vatican Council, the most acute intellects of what may be termed the Vatican party, have been devoted to explain away the seemingly obvious meaning of the Dogmas on Obedience and Infallibility. When vigorously assailed by Dr. Schulte, we find the late Bishop Dr. Joseph Fessler devoting all the resources of his vast learning to prove that nothing unusual or calculated to shock human intelligence was meant. Again, in the Gladstone controversy it is almost painful to read the efforts of Dr. Newman to reconcile the obvious meaning of language with the demands of his naturally subtle and yet robust intelligence. His chapter on "Conscience" is a most remarkable proof of the difficulty in which he found himself, and from which he at last escapes by the declaration that finally even the Dogmas of Infallibility and Obedience must yield to the supreme dictate of Conscience. Even Cardinal Manning, knowing the temper of the court of public opinion before which he was pleading, equally finds it necessary to disclaim the extreme latitude to which the wording of the Vatican Decrees may be extended. But the positions taken by Mr. Gladstone appear to my mind wholly uninjured, and his charge fully sustained by historic references, that the present attitude of Rome is incompatible with Civil Allegiance and Civil Liberty.

While, however, the controversial discussions have produced, what may be termed apologetic disclaimers from the Roman Theologians, we find full effect attempted to be given at this moment in Spain, to the most ultra doctrines of the Syllabus and the Dogmatic Decrees—and, in fact, their strict observance insisted upon in every country where the Civil power is controlled by the Hierarchical. It is eminently suggestive of the light in which our Quebec rulers are regarded to observe the very different ground occupied by the Roman Catholic Church in this Province, from that taken in Ontario and the Maritime Provinces.

The contradictory attitude of the Church of Rome in different countries, and at this moment even in the Dominion, can only be explained by the extraordinary elasticity with which it adapts itself to surrounding circumstances. Wherever it reigns supreme, and con the Civil Government, it is exclusive, despotic and grasping; but when, as in England, and until lately in Canada, it is unconnected with the State, it confines itself to its proper functions of teaching piety and morality.

To prove that the policy of adaptation is not a vague or unsupported charge, but has been the principle upon which the Church of Rome has invariably acted, I shall have to quote at length from the writings of Dr. Joseph Fessler, late Secretary General to the Vatican Council, in his work on the "True and the False Infallibility of the Popes," which was a defense and explanation of the Dogmatic Decrees, and which received a Brief of Approbation from Pius IX.

"Externally, however, we find that in the course of centuries the Church has adopted a very different conduct towards heretics, according to the different circumstances in which she has been placed in her intercourse with the world.

Thus we may distinguish four different periods.

The 'First period' reaches from the commencement of the Christian era to the first decade of the fourth century. During this time, in treating with heretics, Christians acted according to the words and examples of the Apostles. What this way was, the Apostle Paul told the faithful: 'A man that is a heretic, after the first and second admonition avoid, knowing that he that is such an one is subverted and sinneth, being condemned by his own judgment.' (Titus iii. 10, 11.) And the Apostle John says: 'If any man come to you and bring not this doctrine, receive him not into your house, nor say to him, God speed you (2 John v. 10). This is the way in which the early Catholics protected themselves from heretics; they excluded them from their communion, and in some cases, even broke off intercourse with them in order that they might not be corrupted by tbeir errors.

The 'Second Period' begins with the First Council of Nicæa, A.D. 325, at which time the Christian rulers of the Roman Empire sent the principal teachers of error into banishment from political reasons, and in order to prevent their doing mischief, because there was good reason for considering them disturbers of the public peace; and severe fines and other punishments were imposed on those who were the disciples of their errors. This period lasted for some centuries, as long as the Roman law was in force.

In the 'Third Period,' that of the Middle Ages, rulers went farther; fines were not only followed by confiscation of goods, but even capital punishment or imprisonment for life was pronounced against heretics, and this by the imperial laws of the Emperor Frederick II. and other emperors; to these laws the Popes were a party, as Leo X. expressly testifies. At that time, people looked upon heresy as a breach of the imperial law, to be punished with the loss of honour, forfeiture of goods, deprivation of civil rights, &c. Testimony of this is expressly given by Frederick II., who declares that in punishing heretics, he was but exercising his own temporal power, wholly independently, and was not acting under the influence of any spiritual authority. The reason the emperor gives for inflicting such heavy penalties was because it was a greater breach of the law to offend against the Divine Majesty than against any earthly majesty. This was the general way of viewing men's public social relations at that time. This period lasted till well on into the sixteenth century.

The 'Fourth Period,' which has been running its course up to the present time from the seventeenth century, did away with those penal enactments which had been passed under very different circumstances, as the reasons which had led to their being enacted, and the principles on which they rested, were no longer in force since the establishment of Protestant States in Europe. This is the period in which we meet with only protests or the reservation of rights, when, the rights of the Church, whether divine, or legal, or accruing to her from contract, were violated in favor of heretics.

The foregoing authorized historical summary of the course of Rome towards heretics is instructive to us in two most important respects. It teaches, first, that the Roman Church has never absolutely withdrawn from any of her alleged franchises. And secondly, that in the present age, she will not insist upon them when vigorously resisted. The latter point is that which concerns us, both Catholic and Frotestant in Canada, at this time, when the attempt is being made to introduce amongst us, innovations equally repugnant to the Catholic as to the Protestant.

From the foregoing imperfect recital of the controversy which, in varied form, and with differing weapons, has been and is now taking place in Europe, I consider the conclusion inevitable, that the Syllabus and the Vatican Decrees have materially altered the relations of the Church of Rome towards Civil society, and grievously disturbed the mind and conscience of both Catholic and Protestant.

I shall now proceed to examine how far Canada, and especially the Province of Quebec, is affected by these momentous Decrees.

Let me first endeavor to define the position of the Roman Catholic Church in Lower Canada (Quebec) from the date of its cession to Great Britain in 1759 to the period of Confederation, and subsequently.

In the celebrated Gruibord case, I find in the Judgment of the Privy Council the law very clearly laid down. My Lords say:

"The following are the public documents which show how the Roman Catholic Church in Lower Canada was dealt with on the conquest and cession of the province:—

The 27th Article of the instrument of cession is in these terms:

"Le libre exercice de la religion Catholique Apostolique et Romaine subsistera en son entier, ensorte que tous les états et le peuple des villes et des campagnes, lieux et postes éloignés, pourront continuer de s'assembler dans les églises et de fréquenter les sacrements comme ci-devant, sans être inquiétés d'aucune manière, directement ou indirecternent. Ces peuples seront obligés par le Gouvernement Anglais à payer aux prétres qui prendront soin les dimes et tous les droits qu'ils avaient coutûme de payer sous le gouvernement de Sa Majesté Tres Chrétienne. Accorde pour le libre exercice de leur religion; l'obligation de payer les dimes aux prétres dépendrade la volonté du Roi."—(Page 15, "Actes Publics.")

Again, in the treaty of 1763 it is said:—

"Sa Majesté Britannique consent d'accorder la liberté de la religion Catholique aux habitants du Canada, et leur permet de professer le culte de leur religion, autant que les lois de l'Angleterre le permettent."

And lastly, by an Act of Parliament passed in 1774 (14 Geo. III, c. 83), intituled, "An Act for making more effectual Provision for the Government of Quebec, in North America," it was declared by section 5 that, for the more perfect security and ease of the minds of the inhabitants of the said province, His Majesty's subjects professing the religion of the Church of Rome, of and in the said Province of Quebec might have, hold, and enjoy the free exercise of the religion of the Church of Rome, subject to the King's supremacy, declared and established by an Act made in the first year of the reign of Her Majesty, Queen Elizabeth, over all the dominions and countries which then did, or should thereafter belong to the Imperial Crown of this realm, and that the clergy of the said Church might hold, receive, and enjoy their accustomed dues and rights with respect to such persons only as should profess the said religion.

And by the 8th section it is enacted:

"That all His Majesty's Canadian subjects within the Province of Quebec the religious orders and communities only excepted, may also hold and enjoy their property and possessions, together with all customs and usages relative thereto, and all other their civil rights, in as large, ample, and beneficial a manner as if the said proclamation, Commissions, Ordinances, and other Acts and Instruments had not been made, and as may consist with their allegiance to His Majesty, and subjection to the Crown and Parliament of Great Britain; and that in all matters of controversy, relative to property and civil rights, resort shall be had to the laws of Canada as the rule for the decision of the same," &c.

From these documents it would follow that, although the Roman Catholic Church in Canada may on the conquest have ceased to be an Established Church in the full sense of the term, it, nevertheless, continued to be a Church recognized by the State; retaining its endowments, and continuing to have certain rights (e.g., the perception of "dimes" from its members) enforceable at law.

It has been contended on behalf of the Appellants that the effect of the Act of Cession, the Treaty, and subsequent legislation, has been to leave the law of the Roman Catholic Church as it existed and was in force before the Cession, to secure to the Roman Catholic inhabitants of Lower Canada all the privileges which their fathers, as French subjects, then enjoyed under the head of the liberties of the Gallican Church; and further that the Court of Queen's Bench, created in 1794, possessed, and that the existing Superior Court now possesses as the Superior Council heretofore possessed, the power of enforcing these privileges by proceedings in the nature of "appel comme d'abus." Considering the altered circumstances of the Roman Catholic Church in Canada, the non-existance of any recognized ecclesiastical Courts in that province, such as those in France which it was the office of an "appel comme d'abus" to control and keep within their jurisdiction; and the absence of any mention in the recent Code of Procedure for Lower Canada of such a proceeding, their Lordships would feel considerable difficulty in affirming the latter of the above propositions.

And again:—

"The Court has a right to enquire, and is bound to enquire, whether that act was in accordance with the law and rules of discipline of the Roman Catholic Church which obtain in Lower Canada, and whether the sentence, if any, by which it is sought to be justified, was regularly pronounced by an authority competent to pronounce it.

It is worthy of observation, as bearing both upon the question of the status of the Roman Catholic Church in Lower Canada, and the manner of ascertaining the law by which it is governed, that in the Courts below, it was ruled, apparently at the instance of the respondents, that the law, including the ritual of the Church, could not be proved by witnesses, but that the Courts were bound to take judicial notice of its provisions.

The application of this ruling would be difficult, unless it be conceded that the ecclesiastical law which now governs Roman Catholics in Lower Canada is identical with that which governed the French province of Quebec. If modifications of that law have been introduced since the cession, they have not been introduced by any legislative authority. They must have been the subject of something tantamount to a consensual contract binding the members of that religious community, and, as such, ought, if invoked in a Civil Court, to be regularly proven.

It seems, however, to be admitted on both sides that the law upon the point in dispute is to be found in the Quebec ritual, which was certainly accepted as law in Canada before the cession of the province."

And again, referring to the excommunication of Guibord as a member of the Institut Canadien, my Lords say:—

"Their Lordships are satisfied that such a discretionary enlargement of the categories in the Ritual would not have been deemed to be within the authority by the law of the Gallican Church as it existed in Canada before the cession; and, in their opinion, it is not established that there has been such an alteration in the status or law of that Church founded on the consent of its members, as would warrant such an interpretation of the Ritual, and that the true and just conclusion of law on this point is, that the fact of being a member of this Institute does not bring a man within the category of a public sinner, to whom Christian burial can be legally refused.

It would further appear that, according to the ecclesiastical law of France, a personal sentence was in most cases required in order to constitute a man a public sinner."

And lastly:—

"Gibert, in his Institutes, says that the ipso facto excommunication inflicted by the Council of Trent as the punishment of reading or possessing prohibited books would have no effect in France dans le for extèrieur. Dupin, a jurist already mentioned, denies the authority in France of the decrees of the Congregation. He says:—

"En effet, en consultant les précédents, on trouve un célèbre arrêt du Parlement de Paris qui l'a jugê ainsi en 1647, après un éloquent plaidoyer de l'Avocat-General Omer Talon:

Nous ne reconnaissons point en France,' dit ce Magistrat, 'l'autorité, la puissance, ni la juridiction des congrégations qui se tiennent à Rome; le Pape peut les établir comme bon lui semble dans ses Etats; mais les décrets de ces congrégations n'ont point d'autorité ni d exécution dans le royaume. . . . . Il est vrai que dans ces congrégations se censurent les livres défendus, et dans icelles se fait l'index expurgatorius, lequel s'augmente tous les ans; et c'est là où autrefois ont été censurés les arrêts de cette cour rendus centre Chastel, les œuvres de M. le Président de Thou, les libertés de l'Eglise Gallicane, et les autres livres qui concernent la conservation de la personne de nos rois et l'exercice de la justice royale.'" &c.—(Dupin, Droit Public Ecclésiastique, avertissement sur la 4ème edition).

No evidence has been produced before their Lordships to establish the very grave proposition that Her Majesty's Roman Catholic subjects in Lower Canada have consented, since the cession, to be bound by such a rule as it is now sought to enforce, which, in truth, involves the recognition of the authority of the Inquisition, an authority never admitted but always repudiated by the old law of France. It is not, therefore, necessary to enquire whether since the passing of the 14 Geo. III, c, 83, which incorporates (s. 5) the 1st of Elizabeth, already mentioned, the Roman Catholic subjects of the Queen could or could not legally consent to be bound by such a rule.

From the foregoing citations from the Judgment of the Privy Council, it is clear that the status of Her Majesty's Roman Catholic subjects in Lower Canada is that enjoyed by them under the old law of France prior to the cession. It is under that condition of law that the Church, as a body politic, exists; and while, as in the Guibord case, it cannot be doubted that the civil rights of members of that communion will be maintained by our Courts of Law, the question may well arise, whether serious innovations upon the law and practice of the Church under old France, may not produce a virtual forfeiture of the special privileges conferred upon the Church, as a body politic. It is a widely different thing to guarantee the peaceful enjoyment of their "culte" and "dimes," from pledging the faith and power of the Crown to the enforcement of the decrees of a foreign power, even though that power acts under the insidious guise of only dealing with "faith and morals."

Yet there is one point already indicated in the elaborate Judgment of the Privy Council, which, to my mind, renders my appeal to Roman Catholics in Canada at this moment justifiable, and even imperative.

My Lords, in the foregoing extract, say:—

"No evidence has been produced before their Lordships to establish the very grave proposition that Her Majesty's Roman Catholic subjects in Lower Canada have consented, since the cession, to be bound by such a rule as it is now sought to enforce, which, in truth, involves the recognition of the authority of the Inquisition, an authority never admitted but always repudiated by the old law of France. It is not, therefore, necessary to enquire whether since the passing of the 14 Geo. III, c. 83, which incorporates, (s. 5) the 1st of Elizabeth, already mentioned, the Roman Catholic subjects of the Queen could or could not legally consent to be bound by such a rule."

It is hence evident that in their Lordships' view, subject to the concluding reservation, it is competent for the Roman Catholics, by their own "consent," expressed in legislation, to deprive themselves of the protection they now enjoy under the Ecclesiastical Law as administered in France prior to the conquest. Will they perform this suicidal act?

It is thus proved by the very highest authority that the status of Roman Catholics in Canada (subsequently confined to Quebec only) is that possessed by the Catholic Church in France prior to 1759; and this view has been further most distinctly stated by the theologians to whom certain questions on the subject were addressed by the Bishops of Montreal and Rimouski on behalf of the Quebec Council of Bishops in 1873. I shall now proceed to signalize the various pretensions put forth by the Roman Catholic Hierarchy, with the view of altering this status, and the measures already devised for giving them the sanction of law.

There is no doubt that for many years even prior to the publication of the Syllabus, a new ecclesiastical element obtruded itself into the Roman Catholic clerical body in Lower Canada. The peaceful, loyal, modest, intelligent priest who, in almost a patriarchal spirit, had directed the consciences of a simple peasantry, began to find his domain invaded by the more active and ener spirit of the Ultramontane. The Bishops were brought more directly under the control of the Sacred College, vacancies in the Episcopate were filled with men more suited to the requirements of Rome, greater development was given to the establishment of religious bodies, and the control of education, both in its higher and inferior branches, was sought to be placed in the hands of the priesthood.