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Date: 1865-02-03
By: True Witness
Citation: “No title”, True Witness (3 February, 1865)
Other formats: TBA

We confess that we do not understand our contemporary the Courrier du Canada on the question of Divorce. It seems to us that he defends the thesis: That it would be unlawful, immoral, and contrary to Catholic faith, to vote for attributing to the local legislatures of the proposed new government, the authority to legislate either on the question of Marriage, or that of Divorce, because the so doing would be a recognition of the right of a civil tribunal to legislate upon Marriage, and of the possible legitimacy of Divorce; but that it is not immoral, unlawful, or contrary to Catholic Faith to vote for giving to the central government—though also a mere civil tribunal—the right to legislate on these questions, Marriage and Divorce.

Having quoted the decrees of the Council of Trent on the subject, and established the principles, that the right to adjudicate on Matrimonial causes belongs to ecclesiastical judges exclusively; and that the authority to legislate or adjudicate upon, in the sense of legalising, Divorce, belongs and can of right belong to no tribunal on earth—the Courrier du Canada thus continues his argument:—

“Therefore, all those who in the Confederation question have wished to claim for the legislature of Lower Canada, or the local legislatures, the attribute of taking cognizance of divorce questions, have committed a radical error in claiming for these Parliaments a right which no Parliaments may arrogate to themselves, and the usurpation of which entails the penalty of anathema; they are therefore bound to abandon that opinion as contrary to the Holy Canons.”—Courrier du Canada.

Excellently well argued; but the argument would be of exactly the same character, and of precisely the same force, if, for the words which we have ventured to italicise in the above paragraph, we were to substitute the words “central or federal legislature.” Thus it would read:

“Therefore all those who in the Confederation question have wished to claim for the central or federal legislature, the attribute of taking cognizance of divorce questions, have committed a radical error in claiming for that Parliament a right which no Parliament may arrogate to itself, and the usurpation of which entails the penalty of anathema; they are therefore bound to abandon that opinion as contrary to the Holy Canons.”—True Witness.

If the argument of the Courrier du Canada is good, that of the TRUE WITNESS is as good; if the first is conclusive as to the duty of the Catholic legislator, were he by his position called upon to vote “Yea or Nay” upon the question of according the attribute of taking cognizance of divorce questions to the local legislatures; so also the second is equally conclusive as to the duty of every honest and conscientious Catholic legislator who by his position may be called upon to vote either “Yea or Nay” upon the question of according the attribute of taking cognizance of divorce questions to the central legislature. The principle at issue in the one case is the same as the principle at issue in the other; to wit—That under no conceivable circumstances can it ever be lawful for a Catholic legislator directly or indirectly to accord to, or recognise in, any civil tribunal whatsoever, the right of taking cognizance of divorce questions. Not to save his country, not to save the universe, from destruction would it be lawful, or less than a mean cowardly dereliction of principle, for a Catholic legislator to vote: “Yea,” or to abstain from voting a loud and emphatic “Nay,” upon such a question, should it come before him.

The Courrier du Canada is of a different opinion; and concludes that though upon principle the Catholic legislator is bound to vote against attributing to the local legislatures the cognizance of divorce questions, he is at liberty to vote for attributing the cognizance of divorce questions to the central legislature; provided only, that he speak against divorce, and write against divorce in general, and that he make declaration that he intends to uphold sound ecclesiastical principles, and always to vote in the central Parliament against the exercise by that body of the attribute which by his present vote he agrees to confer upon it. “Here Tommy,” says Papa, “here’s a drum for you; but mind you don’t beat it, or make a noise with it, or if you do, I’ll take it away from you.” Such is the advice of the Courrier du Canada to his co-religionists; but he forgets to add that when they shall have aided in creating this “central government,” and when to this their creature they shall have once given the right of taking cognizance of divorce questions, it will be no longer in their power to take back, or even to restrict the use of, their dangerous gift. Our Parliamentary Tommy if you try to take his nice divorce drum from him, will prove restive, and kick your shins, so that you will be fain to submit to the hideous music. It would have been better for the peace of the house if Papa had refused to give Tommy the drum in the first instance.

That we be not accused or suspected of caricaturing or distorting either the logic or the ethics of our contemporary, we will let him speak for himself. The Courrier du Canada puts, and answers the following question:—

“What then is the project of confederation which attributes this right”—(that of legalising Divorce)—”to the federal government?”

“It is a usurpation on the part of the civil power imposed on a Catholic minority by a Protestant majority. It is an evil that we cannot prevent. No error then on the part of those who reluctantly suffer that ill.”

Yes; but how would the case stand were Catholics by their votes, or by their silence formally to sanction a “project of confederation which attributes the right of legalising divorce to the federal government?” How would it be if the Catholic minority were to vote with the Protestant majority for giving to this yet to be created federal government, the right of taking cognizance of divorce questions? How, were the Catholic minority not to exert themselves to the utmost extent of their legal and constitutional rights to prevent the evil? In such a case there would be no “usurpation” on the part of the civil power imposed on a Catholic minority by a Protestant majority, because the former would have formally and explicitly assented thereunto; and under such circumstances, the Catholic legislator would not be free from guilt, because he would not have done all in his power to prevent the evil.—The plea of the Courrier is valid for those only who neither by their votes, nor by their equally culpable but far more cowardly silence, sanction or ratify the usurpation meditated by the civil power. The Courrier continues his questions and answers:—

“It is asked again—’ But should we vote against the project of confederation because of that article? Are we obliged thereunto?’

“No: for in voting for the project, and that article, we would admit no false doctrine; we should simply authenticate (constater) the fact” — [what fact?]; “*at the same time it must be affirmed in the press, and in the debates by the voice of the leading Catholic orrators, that we mean to reserve intact [sauver] the principle proclaimed by the Church, to wit—that ecclesiastical judges alone have the right to take cognizance of marriage questions [a vinculo]; and that moreover we intend always to vote in the Federal Government against the usurped right.”

But how could Catholics, unless they wished to make Protestants laugh at them, dare to call that “usurped” which they, Catholics, themselves had voted for giving to, or conferring upon the yet to be created federal government? For—and herein lies the whole pith of the matter—there is in the case before us no question whatever of authenticating or of recognizing a fact, “qui on constate tout simplement le fait,” as the Courrier pretends. The federal legislature as yet is not, does not exist; and of that which does not exist, nothing, no facts, no attributes whatsoever, can be predicated.—The question is, not “what are;” but “what shall be?” the rights, functions and attributes of a civil tribunal not yet existing, but which with the aid of Catholic votes it is only proposed to call into existence; and it yet remains for the people of the several Provinces, for Catholics as well as Protestants, to determine, 1st., “whether such a tribunal ever shall be at all;”—and 2nd, “what shall be the nature and extent of its attributes.” The measure for which Catholics are about to be called on to vote, and for which according to the Courrier, they may in all integrity of conscience vote, is not a measure declaratory, but enactory; a measure which gives to a civil tribunal which it also proposes to create—(and which as non-existing cannot be conceived of as having as yet any functions whatsoever)—the legal right to adjudicate upon Marriage and to legalise Divorce; a measure therefore for which no legislator can vote without asserting, by implication, that to civil tribunals belongs the right to adjudicate upon Matrimonial causes, and that in certain cases a civil tribunal may grant a Divorce. Now these two propositions are both formally condemned by the Church: the first by the Council of Trent; the second in the late Encyclical of the Sovereign Pontiff, God’s Vicar on earth.

So at least the question presents itself to us, for the reason above insisted upon, and especially because there is an essential moral difference betwixt submitting reluctantly to an evil which we have done our best, but have been unable, to prevent; and in taking an active part in creating that evil, or bringing it upon ourselves. Did this federal legislature exist actually; were it asserted of it that it did possess the attribute or right of taking cognizance of Divorce questions; and were this fact called in question—we could understand what the Courrier means when he speaks of the Catholic legislator being only called upon to “recognize the fact—constater tout simplement le fait.” But the federal legislature does not exist; and it is for our Catholic representatives to determine, not “what are,” but “what shall be” the functions, rights, and legal attributes of the civil tribunal which they are asked to assist in creating or calling into being. Viewed through a Catholic achromatic telescope—one in which the rays of truth are not distorted by passing through a party, or vicious refracting medium—the question which we are now discussing with the Courrier du Canada presents itself therefore in the following shape and color,—

“Can the Catholic legislator conscientiously vote for, or refrain from voting against, a measure which proposes to create or call into being a certain civil tribunal; and which explicitly gives to or confers upon that civil tribunal the right to adjudicate upon Matrimonial causes, and to legalise Divorce?”

This, and no other, is the question at issue.

We read in the Gazette of the 27th ult. as under, with reference to the denial by us given to the assertion made by, or at all events made in the columns of our contemporary, respecting the origin and objects of the property held by the Seminary of Quebec and the Sulpicians of Montreal:—

“The very first moment we see the denial which he makes we reproduce it in our columns, in accordance with a principle which we have always held, lies at the basis of all honorable journalism.”—Montreal Gazette, 27th ult.

Relying upon this pledge to reproduce our denial, the moment he sees it, and the good faith of the Gazette—we lay before his eyes our denial of the assertion that appeared in his columns to the effect that the estates held by the Seminary of Quebec, and by the Sulpicians of Montreal, were given or granted to those bodies by the French Government, out of the common property, for educational purposes:—

“The Sulpicians of Montreal—and the Seminary of Quebec never received any grants, or free gifts from the State: their property was acquired, either by donations from private individuals, or by purchase—that is to say in exchange for full money value by them given.

” The property of the Seminary of Quebec was a free and noble gift made to that body by the illustrious Mgr. de Montmorency, Laval.

“The property of the Sulpicians of Montreal was acquired, partly by purchase from ‘The Company of The Hundred Associates’ whose enormous debts and liabilities the Sulpicians charged themselves with; and partly by a bargain with the French Government, in which the Sulpicians, at an immense cost to themselves, undertook to remove a tribe of Indians then very troublesome to the public peace, to the Seigneurie of the Lake of the Two Mountains, to build a church, and to erect a fortress to defend the Colony.”—True Witness, 13th ult.

This is all that we would ask of the Gazette to reproduce; and if the facts be not as by us stated, it will be very easy for him, or his correspondent to refute us. If this cannot be done, we trust that the “principle” which the Gazette “has ever held as lying at the basis of all honorable journalism” will prompt him to retract his assertions as publicly as he made them.

We would also direct the attention of the Gazette to a passage in the Fourth communicated article in his columns, on the subject of Protestant Education, which appears in his issue of Friday last, and which shows, conclusively, that in 1803, no public provision or endowment out of the common property had been made for educational purposes, either Catholic or Protestant. A Committee having at that time been named to consider the best means of obtaining an educational grant or endowment, reported as follows :—

“For nothing can be more certain than that the Province does not at present afford the means of giving even the rudiments of liberal education, unless one or two private undertakings limited in their plan, and uncertain in their duration may be considered as such.”—Vide Gazette, 27th ult.

Had the Committee on Education of 1803 believed that the estates of the Seminary of Quebec, and of the Sulpicians of Montreal, were held as free grants of common property, made by the French Government to those bodies for educational purposes, it would certainly not have reported in the terms given above. It is certain, we say, that in 1803, when the origin and the objects of the property in question must have been well known to the British Government, the line of argument now adopted in the Gazette for an exclusive Protestant educational endowment, as an equivalent for educational endowments already received by Catholic institutions, was unknown to the Committee of the Executive Council, or they would have availed themselves of it.

• The fact is that the attribute of taking cognizance of divorce questions is actually exercised by the existing local or Provincial legislatures; though Catholics have never recognised the right of those bodies so to act.