Doe ex dem. St. George's Church v. Cougle & Mayes.

Liturgy of the Church of England once a month in the Church, &c., belonging to his benefice." And Section 3 is a most important one, as bearing on the question before us. It enacts, "That if any person whatsoever, having any ecclesiastical benefice or promotion within this Province, shall presume in any church, chapel, or other place of public worship within this Province, openly to use any other form or order of Common Prayers, administration of sacraments, rights or ceremonies, than what is prescribed to be used in and by the said Liturgy, every such person so offending and being thereof convicted upon indictment or information in the Supreme Court or in any Court of Oyer and Terminer or Gaol delivery in this Province, shall be ipse facto disabled to officiate in the Church, and deprived of all his ecclesiastical benefice or promotion; and it shall thereupon be lawful for the Governor or Commander-in-Chief for the time being, to collate to the same, as if the person offending as aforesaid were dead." The next Act was 29 Geo. 3, cap. 1, entitled "An Act for erecting, &c., and incorporating the Rectors, Churchwardens and Vestries of the Church of England in the several Parishes in this Province," established the Parish of St. John and incorporated the Rector, Churchwardens and Vestry of Trinity Church, and provided for the incorporation of Churches erected or to be erected; and was explained and amended by the 56 George III. cap. 11, which recited the title of the 29 George III. cap. 1. The next Act bearing on the question was 31 George III. cap. 5, an Act for regulating Marriage and Divorce, in which the right to solemnize marriage by clerical persons by publishing banns was confined to persons in Holy Orders in the Church of England, reserving to the Churches of Rome and Scotland respectively, the right to solemnize marriage according to the forms of their Churches, and to Quakers according to the forms and customs of their sect.

The 50 George III. cap. 27, declared the qualifications of Churchwardens and Vestrymen in the several Parishes in this Province, and of persons having voices in their election. This was repealed by 1 Wm. IV., cap. 23, which made other provisions.

The 54 George III. cap. 11, recognizes by recital "the approbation of Right Reverend the Bishop of Nova Scotia," to an arrangement relative to glebe land of the Parish of St. Andrews.

The 11 George IV. cap. 16, recognizes "Ecclesiastical Commissary for the Diocese."

The 7 George IV. cap. 20, "The Archdeacon or Ecclesiastical Commissary of this Province."

The 5 Wm. IV., cap. 42, recognizes "the Bishop of the Diocese," as also the Archdeacon" and "Ecclesiastical Commissary," as also does the 5 Wm. IV. cap. 4, Sec. 2; 7 Wm. IV. cap. 29; 11 Vic. cap.

Doe ex dem. St. George's Church v. Cougle & Mayes.

44; 11 Vic. cap. 45; 12 Vic. cap. 56; 13 Vic. cap. 14; 16 Vic. cap. 47; 16 Vic. cap. 49; 17 Vic. cap. 46; 16 Vic. cap. 4; 18 Vic. cap. 56; 18 Vic. cap. 57; 18 Vic. cap. 58; 18 Vic. cap. 59; 18 Vic. cap. 60; 19 Vic. cap. 7; 20 Vic. cap. 18; 20 Vic. cap. 19; 20 Vic. cap. 20, 21 Vic. cap. 58; 24 Vic. cap. 42.

The 9 Vic. cap. 19, recognizes "The Right Reverend the Lord Bishop of Fredericton," as does 17 Vic. cap. 11; 18 Vic. cap. 45; 18 Vic. cap. 46; 26 Vic. cap. 32, recognized by recital that "The Right Rev. John Medley is Bishop of Fredericton."

The existence of the Church of England and the use of the rights and ceremonies of that Church, are further recognized as existing in this Province in the 6 Wm. IV. cap. 3, regulating election of Churchwardens and Vestrymen in the Parish of Portland; by Sec. 2, no person eligible to be elected "unless he be a member of the Church of England as by law established, or, &c." By Sec. 4, the Church "shall be duly consecrated to that purpose, and opened for public worship according to the rights and ceremonies of the said Church of England." And by Sec. 5, this Act is extended to other Parishes "in which a Church may be erected, consecrated and opened for publice worship aforesaid, according to the rites and ceremonies of the said Church of England, in which, &c," provided "not to extend to authorize the erection of more than one Corporation of the said Church of England in any one Parish of this Province." In 14 Vic. cap. 10, recites a grant to the Chief Justice and other officials, of lands to be conveyed to the Corporation of the Church of England, &c." The 7 Vic. cap. 25, recognizes the induction in certain cases, of clergymen into Rectories, and letters of institution from the Bishop of the Diocese; and the 9 Vic. cap. 18, provides that a clergyman duly inducted into the Rectory, &c., receiving the sanction of the Lieutenant Governor and letters of institution from the Bishop, may be Rector of several Churches. And 4 Vic. cap. 3, relating to the Parish of Portland, recites that Grace Church be the Parish Church until another is erected, "and the same should be duly consecrated to that purpose and opened for public worship according to the rights and ceremonies of the Church of England;" in this Act the Lord Bishop of the Diocese is likewise recognized. The 19 Vic. cap. 50, erects the Parish of St. Paul's "for all purposes ecclesiastical or relating to the Church of England," and provides that no person shall be eligible for Churchwarden and Vestryman unless he shall be a member of the Church of England; and by 27 Vic. cap. 28, lands in Woodstock are to be conveyed "to the Bishop of the Diocese of Fredericton," the conveyance to be executed to the Bishop of Fredericton and successors, who shall hold the said land in trust for the use and benefit of the Church of

Doe ex dem. St. George's Church v. Cougle & Mayes.

England in the Parish of Canterbury, &c." And by the Act 5 Geo. IV. cap. 19, the Parish of Carleton was established "for all matters and purposes ecclesiastical or relating to the Church of England." And 21 Vic. cap. 36, divides the Parish of Carleton "for all matters and purposes ecclesiastical or relating to the Church of England," and provides that Churchwardens and Vestrymen of said Parish must be members of the Church of England; and 25 Vic. cap. 7, dividing the Parish of Shediac, is the same. And in the legislation of the last session, in the Acts dividing St. Stephens and Hampton, are to be found similar legislative recognitions.

And we have also the Revised Statutes, of which Title 28, cap. 107, is "Of the Church of England," and by which many of the important provisions recognizing the existence of the Church, the presentation by the Governor, institution by the Bishop, the use of the Liturgy, sacraments, rites and ceremonies of the Church of England are re-enacted; and lastly we have the 32 Vic. cap. 6, 1869, an Act relating to presentations to rectories of the Church of England, which after reciting that "it is desirable to provide for the presentation to ecclesiastical rectories of the Church of England in the Diocese of Fredericton, in the Province of New Brunswick," provides that no person shall be admitted to any benefice "but such as shall be duly licensed by the Bishop of the said Diocese, and shall also conform to and consent in writing to be bound by the Liturgy and Articles of said Church." It then provides for action to be taken on a vacancy; for a nomination by the parishioners; for collation by the Bishop in event of no nomination, and for the institution and induction of person presented, with other provisions; and by Sect. 10 enacts that "no nomination or presentation to any Church, Rectory or ecclesiastical benefice of the Church of England within New Brunswick, shall hereafter be made by the Governor General of Canada or by the Lieutenant Governor of New Brunswick. And so much of the first, second and third sections of Chapter 107, Title 27, of the Revised Statutes of New Brunswick, "Of the Church of England as shall conflict with this Act, shall be and the same is hereby repealed." The three sections here referred to are substantially the same as the first, second and third sections of 26 Geo. III, cap. 4, before particularly referred to and set out.

While it is quite clear that there is nothing to be found in any of these Statutes which confers on the Church of England or its members any rights or privileges outside of their Church, not possessed by every other Church or British subject within the Province, it is equally clear that there are repeated instances of the recognition of the Church of England as existing in this Province, of the Diocese of Fredericton, of the Bishop of that Diocese, of the existence of

Doe ex dem. St. George's Church v. Cougle & Mayes.

the rites and ceremonies of and membership in that Church, the establishment of ecclesiastical parishes, in connection with the Church, and of the presentation to the rectories, benefices and promotions of the Church by the Lieutenant Governors as representing the Crown; all this, while it does not interfere with other Churches or denominations, materially in our opinion affects the members of the Church of England as regards the status and government of the Church, and the prerogative of the Crown as head of that Church.

The Queen being unquestionably the supreme head on earth of the Church of England, if the Church of England exists in this Province, the prerogative of the Crown affecting it necessarily also exist, and this we think has been clearly recognized.

By virtue of one of those prerogatives, the Queen is patron paramount of all benefices; and the right and care of filling all such Churches as are not regularly filled by other patrons, belong to the Crown.

In this Province we find the Legislature has from time to time legislated for the Church of England as existing in this Province, and in the words of the title of the first Act passed "for preserving the Church of England as by law established in this Province," has created parishes and rectories for ecclesiastical purposes relating to the Church of England, in the words of the act creating this parish of Carleton "for all matters and purposes ecclesiastical relating to the Established Church of England," and has made as required provisions for their spiritual and temporal government.

In the absence then of any expression or implication contracting or depriving the Crown of its prerogative, or any declaration as to whom the patronage and presentation to rectories should appertain and belong (and we asked the learned counsel for the defendants, but in vain, to point out to us in whom the right of presentation was if not in the Crown, or how the rectories were to be filled if not in the manner heretofore adopted,) we think the Queen by her prerogative, "which is said to be as ancient as the law," as patron paramount, had previously to the passing of the 32 Vic. cap. 6, the right and care of filling all such benefices; and this right since the foundation of the Province, has been universally exercised by the Crown through the Governors, who by their commissions were authorized and empowered "to collate any person or persons to any Churches, Chapels or other ecclesiastical benefices within our said Province and territories aforesaid, as often as any of them shall happen to be void." And we find since the British North America Act, 1867, that the commission to the Governor General and the royal instructions which accompany it contain the following clauses: In the commission, clause 7, "And we do by these presents authorize

Doe ex dem. St. George's Church v. Cougle & Mayes.

and empower you within our said dominion to exercise all such powers as we may be entitled to exercise therein in respect of granting licenses for marriages, letters of administration and probate of wills, and with respect to the custody and management of idiots and lunatics and their estate; and to present any person or persons to any Churches, Chapels or other ecclesiastical benefices within our said Provinces of Nova Scotia and New Brunswick, to which we shall from time to time be entitled to present." And the instructions, clause 11: "And whereas, by our said commission we have authorized you to present any person or persons to any Church, Chapel or other ecclesiastical benefice within our said Provinces of Nova Scotia or New Brunswick to which we may from time to time be entitled to present, we do declare our will and pleasure to be that you do not present any Minister of the United Church of England and Ireland to any ecclesiastical benefice without a certificate from the Bishop for the time being of the Diocese in which such presentation is made, or his Commissary, of his being conformable to the doctrine and discipline of the said Church, and it is our will and pleasure that the person so presented shall be instituted by the said Bishop or his Commissary duly authorized by him.

As this power has been ever constantly and uninterruptedly exercised by the Governors of this Province, it necessarily follows, if defendant's contention is correct, that all rectories which have been heretofore held have been held contrary to law, and that all existing incumbents of rectories filled anterior to the passing of the act of 1869 are now holding such rectories illegally; for if Mr. Walker is not the legal Rector of Carleton, in what better position can the other Rectors stand who have no better or other title than a similar presentation, institution or induction?

This is the first case in which the right of the Crown to present, or of the Rector so presented, has ever been questioned in this Province that we can discover. And the exercise of this right appears by no means to have been confined to this Province, for we find it laid down in Chitty's prerogatives of the Crown, page 33, in speaking of the Crown's prerogatives as to the Colonies, thus: "The Crown is entitled to present to vacant benefices, a power which it exercises through the Governor." And again, as to the powers of Governors of Colonies: "The Governor is ordinary within his Province, and by virtue of the King's commission he collates to all vacant benefices; he has also the power of granting probate of wills and administration of intestate effects by virtue of his instruction,"

And Chalmer's opinions, 1 vol. of 1823, shows that this prerogative right was recognized and admitted in the old Colonies before the American Revolution; and in Bushman v. Lumley, (3 C. & P.