marily dismissed. With unfeigned respect for such high legal authority, it may be said, that authority, equally entitled to respect, although not official, has distinctly given an opposite decision. It must be remembered, that the law officers of the crown have not been constituted a competent tribunal to settle any differences which might arise in the interpretation of the act: with the authority, which enacted, must rest the ultimate appeal. It is, therefore, much to be regretted, that at this early stage of the discussion, the Government did not bring the question before the Parliament, in order, by a decisive measure, to remove so fruitful a source of contention and strife. It was, perhaps, imagined, that the Provincial Legislature would, in the exercise of powers vested in them, take the subject into grave consideration, and pass some effectual measure for the sanction of the Sovereign, and Imperial Parliament. The legislative assemblies have, however, manifested a very natural aversion to initiate any proceedings on the subject, under the persuasion, doubtless, that no measure, passed in the Colony, could be final. They must have regarded it a waste of time. One exception must be made. The opinion had partially obtained in the Province, that as the Rectors or Parsons, who were duly instituted, became possessed of rights, perfectly similar to those. enjoyed by Incumbents in England, (Section 39,) it might happen that a claim would be preferred to the tithes of produce, &c. An act was, in consequence, passed by the Colonial Parliament, which received the royal sanction in 1823.

An Act relative to the Right of Tithes within this Province. (Passed by the Legislature of Upper Canada.)

[The Royal Assent to this Bill, was promulgated by proclamation, bearing date the 20th day of February, 1823.]

WHEREAS notwithstanding his Majesty has been graciously pleased to reserve, for the support of a Protestant Clergy in this Province, oneseventh of all lands granted therein, doubts have been suggested that the tithe of the produce of land might still be legally demanded by the Incumbent duly instituted, or Rector of any parish; which doubt it is important to the well-doing of this Colony to remove; be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an act passed in the Parliament of Great Britain, entitled, "An act to repeal certain parts of an act passed in the four

B

teenth year of his Majesty's reign, entitled, An act for making more effectual provision for the Government of the Province of Quebec, in North America, and to make further provision for the Government of the said Province,'" and by the authority of the same, That no tithes shall be claimed, demanded, or received, by any Ecclesiastical Parson, Rector, or Vicar, of the Protestant Church within this Province, any law, custom, or usage to the contrary notwithstanding.

The conclusion can scarcely be avoided, that the Legislature of Upper Canada did, by this bill, acknowledge the exclusive right of the Church of England to the Clergy Reserves. No other Protestant denomination of Christians designates its ministers, Rectors or Vicars, or permits them to demand or receive tithes. It should be borne, also, in mind, that this provision of one-seventh of the lands of the Province, was secured to the Clergy of the Established Church, in lieu of the claim they might otherwise make, and maintain, to the tithes of the Colony. These Clergy Reserves were, and are, in fact, a commutation of tithes ; the authority which would venture to deprive the Church of these, her rightful possessions, would not, we fear, hesitate to dispose of any other property, however firmly secured by statute, or however long enjoyed by prescription.

It appears by an official return that upwards of 300,000 acres of the Clergy Reserves have been leased. The system of leasing could not but prove utterly inadequate to meet the wants of the Church; indeed, it must be a matter of surprise that any persons could be found to take those lands on lease. The crown lands were for many years sold at a nominal or very low price (they have not yet attained an average of eight shillings an acre); and many free grants were made. Such a facility of obtaining freeholds could not but operate against the leasing the Reserves, however advantageous might be the terms on which they were offered to the public. It is by no means improbable that the lots, which were leased, were taken under some vague opinion, that the fee simple might be procured at the same price as the crown lands, at the option of the lessee, and thus even the small advance of principal be avoided, at a time when new settlers most need their little all to clear and stock their farms. The rents for the leased lands have been frequently and urgently demanded;-few of the holders of those lands have complied with the request. It soon became evident that for the purposes of a

provision for the Clergy those lands, under existing circumstances' were comparatively useless. A proposition was, therefore, submitted to Parliament, and entertained, and became a law to alienate a portion of these lands. The quantity proposed to be sold was not to exceed 100,000 acres annually, or one-fourth part of the whole property. This act was passed in the year 1827 (7 and

8 Geo. IV., c. 62.) It is worthy of remark that no notice is taken in this act of the various claims which have been made to a participation in these lands in common with the Established Church. Even the opinion of the law officers of the crown did not appear sufficiently important to render expedient any express alteration in the language of the act in order to define the legitimate proprietors of the Reserves. It is simply, but distinctly, provided that the proceeds of the sales should be applied to the same objects as those designed by the act of 1791, and to no other use or purpose whatever:

An Act of the Imperial Parliament, passed anno septimo and octavo Georgii IV. Regis, chap. 62. An Act to authorise the sale of a part of the Clergy Reserves in the Provinces of Upper and Lower Canada. 2nd July, 1827.

WHEREAS by an Act passed in the thirty-first year of the reign of his late Majesty King George the Third, intituled, "An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty's reign, intituled An Act for making more effectual provision for the government of the Province of Quebec, in North America, and to make further provision for the government of the said Province," it is among other things enacted, that it shall and may be lawful for his Majesty, his heirs or successors, to authorise the Governor or Lieutenant Governor of each of the Provinces of Upper Canada and Lower Canada respectively, or the person administering the government therein, to make, from and out of the lands of the crown within such Provinces, such allotment and appropriation of lands as therein mentioned for the support and maintenance of a Protestant Clergy within the same; and it was further enacted, that all and every the rents, profits, or emoluments which might at any time arise from such lands so allotted and appropriated as aforesaid, should be applicable solely for the maintenance and support of a Protestant Clergy within the Province in which the same should be situated, and to no other purpose whatever: And whereas in pursuance of the said act such allotment and appropriation of land as aforesaid, have from time to time been reserved for the purpose therein mentioned, which lands are known within the said Provinces by the name of the Clergy Reserves: And whereas the said Clergy Reserves have in great part remained waste and unproductive, from the want of capital to be employed in the cultivation thereof; and it is expedient to authorise the sale of certain parts of such Clergy Reserves, to the intent that the monies arising

from such sale may be employed in the improvement of the remaining part of the said Clergy Reserves, or otherwise, for the purposes for which the said lands are so reserved as aforesaid: Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same-that it shall and may be lawful for the Governor and Lieutenant-Governor, or Officer administering the government of the said Provinces, or either of them, with the consent of the Executive Council appointed within such province for the affairs thereof, in pursuance of any instructions which may be issued to such Governor, Lieutenant-Governor, or other officer as aforesaid, by his Majesty, through one of his principal Secretaries of State, to sell, alienate and convey, in fee simple, or for any less estate or interest, a part of the said Clergy Reserves in each of the said Provinces, (not exceeding in either Province one-fourth of the Reserves within such Province,) upon, under, and subject to such conditions, provisoes, and regulations, as his Majesty, by any such instructions as aforesaid, shall be pleased to direct and appoint:-Provided nevertheless, that the quantity of the said Clergy Reserves so to be sold as aforesaid, in any one year, in either of the said Provinces, shall not in the whole exceed one hundred thousand acres : Provided also, that the monies to arise by, or to be produced from, any such sale or sales, shall be paid over to such officer or officers of his Majesty's revenue within the said Provinces respectively, as his Majesty shall be pleased to appoint to receive the same, and shall by such officer or officers be invested in the public funds of the United Kingdom of Great Britain and Ireland, in such manner and form as his Majesty shall from time to time be pleased to direct: Provided also, that the dividends and interest accruing from such public funds, so to be purchased, shall be appropriated, applied, and disposed of for the improvement of the remaining part of the said Clergy Reserves, or otherwise for the purposes for which the said lands were so reserved as aforesaid, and for no other purpose whatsoever; save only so far as it may be necessary to apply the same, or any part thereof, in or towards defraying the expenses of or attendant upon any such sale or sales as aforesaid; and which appropriations shall be so made in such manner and form, and for such special purposes, as his Majesty from time to time shall approve and direct.

II. And be it further enacted, That it shall and may be lawful for the Governor, Lieutenant-Governor, or officer administering the government of the said Provinces, with the consent of such Executive Council as aforesaid, in pursuance of any instructions which may in manner aforesaid be issued to him, to give and grant in exchange for any part of the said Clergy Reserves, any lands of and belonging to his Majesty within the said Provinces, of equal value with such Clergy Reserves so to be taken in exchange, or to accept in exchange for any such Clergy Reserves, from any person er persons, any lands of equal value; and all lands so taken in exchange for any such Clergy Reserves, shall be holden by his Majesty, his heirs and successors, in trust for the several purposes to which the said Clergy Reserves are appropriated by the said act, so passed in the thirtyfirst year of the reign of his late Majesty King George the Third, or by this present act.

It is plain that this act tended in nowise to settle the legal right to the Clergy Reserves further than that right is recognised and established by the act of 1791. The opinion of Parliament and of Government remained the same on the subject. Whatever claims were made, however urgently or clamorously they were advanced, or however pertinaciously maintained, the only tribunal which could decide on any supposed doubt remained silent, and did thus tacitly recognize the alone right of the Church of England to the Reserves. The Executive also appears to have acted, at least up to the period of passing this act, and for several years after, on the conviction that the Church alone possessed this right; for to no other denomination was any grant of land made, or any of the interests or profits, arising from the leased lands, given. There is a provision in this act of 1827 which, if carried out into full operation, as the wants of the Church required, would facilitate the establishment of the Church in the newly-settled parts, and greatly assist in the maintenance of the Clergy;-it is the authority given to the Lieutenant-Governor, by and with the advice of the Executive Council, to sanction the exchange of any portion of the unleased reserves for lands cleared and possessed by private individuals in the immediate vicinity of a church, and even for a residence or rectory-house for the minister. Thus, if due attention were observed in the selection of a site for a church, however humble and unassuming the fabric might be in its structure, advantage might be taken of the low price even of cleared land in a new colony, to effect an exchange of forty to one hundred acres for a glebe. If a settler, possessing sufficient means to enable him to advance the money, and willing to build a rectory-house, should offer it to the Government, wild lands to the full value of the house might be procured in exchange. The late excellent Lieutenant-Governor, Sir J. Colborne, acting up to the suggestions of Lord Ripon, facilitated these exchanges, whenever a proper opportunity presented itself. The Clergy themselves, most probably from ignorance of the provision thus made, or from the difficulty of inducing private individuals to barter away their lands which had cost so much toil in clearing, did not avail themselves, as they ought otherwise to have donc, of the declared readiness of the Governor to sanction exchanges. This privilege was absolutely refused by the late Lieutenant-Governor, Sir F. Head, not of course on his own authority