Brassard et al. v. Langevin

Brassard et al. v. Langevin
Collection
Supreme Court Judgments
Date
1877-02-28
Report
(1877) 1 SCR 145
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Taschereau, Jean-Thomas; Fournier, Télesphore; Henry, William Alexander
On appeal from
Quebec
Subjects
Elections
Decision Content
Supreme Court of Canada
Brassard et al, v. Langevin, (1877) 1 SCR 145
Date: 1877-02-28
CONTROVERTED ELECTION OF THE COUNTY OF CHARLEVOIX.
OSEE BRASSARD, et al
Appellants
(Petitioners in Court below,)
And
HON. L. H. LANGEVIN,
Respondent.
PRESENT:—The Chief Justice, and Ritchie, Strong, Taschereau, Fournier and Henry J.J.
Held; That the election of a member for the House of Commons guilty of clerical undue influence by his Agents is void.
That sermon and threats by certain parish priests of the County of Charlevoix, amounted in this case to acts of undue influence, and are in contravention with the 95th Section of the Dominion Elections Act 1874
PER RITCHIE, J.—A clergyman has no right, in the pulpit or out, by threatening any damage, temporal or spiritual to restrain the liberty of a voter so as to compel him into voting or abstaining from voting otherwise than as he freely wills.
This was an appeal from a judgment rendered by Mr. Justice Routhier at Malbaie, in the District of Saguenay, Province of Quebec, dismissing the election petition of O. Brassard et al., against the return of Hon. Hector L. Langevin, as member of the House of Commons for the Electoral District of Charlevoix.
The petition was brought under the Dominion Controverted Elections Act, 1874. The petitioners contested the election on the grounds of bribery, treating, undue influence, and of the employment, as agent and canvasser of a scheduled briber.
On the argument in appeal the principal ground urged was, that certain priests of the County of Charlevoix had exercised, in and out of the pulpit undue influence.
The principal questions to be decided were, whether certain sermons and threats made by parish priests in the Province, of Quebec, to their parishioners during an election were to be interpreted as acts of undue influence Within the meaning of the 95th section of the Dominion Controverted Elections Act of 1874 (a) and if so whether in this case the priests were to be considered as acting as agents for the Respondent.
By the evidence it appears that Hon. Mr. Langevin consented to become a candidate after one Onésime Gauthier had, at Respondent's request, secured for him the support of the clergy of the country; that he subsequently
(a) Section 95 of Election Act 1874 is as follows
"95. Every person who, directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens to make use of any force violence or restraint, or inflicts or threatens the infliction, by himself, or by or through any other person, of any injury, damage, harm or loss, or in any manner practices intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting or on account of such person having voted or refrained from voting at any election, .or who, by abduction, duress or any fraudulent device or contrivance, impedes, prevents or otherwise interferes with the free exercise of the franchise of any voter, or thereby" compels, induces or prevails upon any voter to give or refrain from giving his vote at any election shall be deemed to have committed the offence of undue influence.” met and visited the curès, and at public meetings declared that the members of the clergy were favourable to him. It was also proved that one priest Rev. Mr. Gosselin, had publicly declared at Eboulements, in presence of Respondent that "the clergy of the county had unanimously chosen Mr. Langevin, and had promised to support him."
The election took place in January 1876, The two candidates were the Respondent and Mr. P. A. Tremblay. The pastoral letter of the bishops extracts from which will be found in the following pages, was read previous to the election from the various pulpits of the parish churches, and sermons in which references were made to the election in question, were delivered on the Sunday previous to the polling day by Rev. Mr. Sirois, curé of Baie St. Paul l by Rev. Mr. Langlais, curé of St. Hilarrion; by Rev. Mr. Fafard, curé of St. Urbain; by Rev. Mr. Roy, curé of St. Irénée; by Rev. W. E. Tremblay, curé of St. Fidèle; by Rev. Mr. Cinq-Mars, curé of St. Simèon; and by Rev. Mr. Doucet, curé of St. Etienne de la Malbaie.
The petition contained the two following counts in reference to undue influence:-
7. Your Petitioners further say; That at the said ele on, before, during and after the same, the said Honorable Hector Louis Langevin by himself as well as by his agents and other persons acting for him and on his behalf with and without his knowledge and consent, was guilty of the offence of undue influence and made use of spiritual and temporal intimidation, and that therefore the election and return of the said Honorable Hector Louis Langevin were and are absolutely null and void.
10. Your Petitioners state that at, before, during and after said election, a general system of bribery, of treating, of undue influence, of intimidation by spiritual and temporal threats, of personation, of inducing persons to commit personation, of hiring vehicles to convey voters to and from the polls, of payment of travelling expenses of electors in going to or returning from said election, all kinds of corrupt and illegal practices, was exercised in the interest of the candidature of the said Honorable Hector Louis Langevin, and that the said general system of corrupt practices was intended to and did in fact unduly influence a great number of electors to vote against the said Pierre Alexis Tremblay and in favour of the said Honorable Hector Louis Langevin, or to prevent them from voting, and that in consequence of the said general system of corrupt practices, the electors of the said electoral district were deprived of freedom of action, and that the said election instead of being the result of the free exercise of the will of the people, was but the result of illegal practices employed in favour of the candidature of the said Hector Louis Langevin and therefore the said election and the return of the said Honorable Hector Louis Langevin were and are absolutely null and void."
After the filing of the Petition a motion was made on behalf of the Respondent, for particulars, in the following words :—
“3rd. As to paragraph seven, the names, surnames and addresses of all persons guilty of undue influence, spiritual and temporal intimidation, and when and where such undue influence, spiritual and temporal intimidation was exercised or when and where it was attempted to exercise the same and on what persons, with the names surnames and addresses of the persons upon whom such, undue influence was exercised, or upon whom it was attempted to exercise the same; in the second place upon what class of persons such undue influence was exercised, or it was wished or attempted to exercise such undue influence, with as exact a description as possible of the class of persons, and showing in relation to each act the nature and character of the undue influence, and whether undue influence purely and simply or spiritual intimidation or temporal intimidation is in question.
“6th. As to paragraph ten, each act which has not been already stated as a particular in relation to the preceding paragraphs, and which the Petitioners propose to prove in order to show a general system of bribery; a general system of acts called treating; a general system of acts called undue influence; a general system of temporal intimidation; a general system of spiritual intimidation; a general system of personation; a general system of subornation; a general system of corrupt practices, with the names and addresses of the persons who practice the same or upon whom they were practiced, and when such acts were practiced, distinguishing whether an allusion is made to an individual or to a class of persons, and in such latter case to furnish as exact a description as possible of the class of persons upon whom such acts were practiced, with the place and date of each of the said acts."
The parties having been heard on the motion of the Defendant for particulars, the Court granted the said motion with costs and the Petitioners were in consequence enjoined to deposit in the office of the Court and to supply the Defendant, on or before the first July next, with the particulars demanded. The Petitioners then produced the following particulars:—
" 4. The Reverend François Cinq-Mars, curé of St. Siméon, some days before the voting at St. Siméon, in the pulpit and out of the pulpit stated to all the Roman Catholic electors of the said parish and among others to Narcisse Bouchard, Johnny Desbiens, Abraham Tremblay, Michel Jus beau, farmers; Michel Tremblay, beadle, and Séraphin Guérin, trader, that it was a case of conscience, a mortal sin, a heavy sin, to vote for the opponent of the Defendant.
"5. The Reverend Joseph Sirois, curé of Baie St. Paul on the sixteenth of January last, and on the preceding and following days, as well in the pulpit as out of it, threatened with spiritual and temporal penalties, all the Roman Catholic electors of Baie St. Paul, and amongst others," [certain persons whose names are given.]
"6. The Reverend Ambroise Fafard curé of St. Urbain in January last, m the pulpit and out of it, at St. Urbain threatened with the refusal and deprivation of the ordinary assistance that he was accustomed to give them, as well as with the deprivation of situations employments and other advantages, all the Roman Catholic electors of the said parish of St. Urbain and among others," [certain persons whose names are given.]
"7. The Reverend Ignace Langlais, curé of Rivière St. François, in the said parish, on the 16th of January last, and on the preceding and following days, in the pulpit and out of it intimidated by threats of spiritual penalties, if they voted for the Defendant's opponent all the Roman Catholic electors of the said parish, and among others,'' [certain persons whose names are given.]
“8. The Reverend L. E. Lauriault curé of Petite Rivière St. François, in the said parish, on the 16th of January last, and on the preceding and following days, at St. Fidèle, in the pulpit and out of it, intimidated by threats of spiritual penalties, if they voted for the Defendant's opponent all the Roman Catholic electors of the said parish, and among others,” Abel Maltais, Exé Gagnon, Emilien Bouchard, farmers, and Johnny Tremblay, trader. [certain persons whose names are given.]
9. The Reverend W. Tremblay curé of St Fidéle on the 16th of January last and on the preceding and following days at St Fidéle in the pulpit and out of it intimidated by threats of spiritual penalties if they voted for the Defendants opponent all the Roman Catholic electors of the said parish and among others, Abel Maltais Exé Gagnon Emilien Bouchard farmers and Johnny Tremblay trader.
" 10. The Reverend N. Doucet curé of St. Etienne of Malbaie, out of the pulpit, stated to the Roman Catholic electors of the said parish, and among others, to Denis Harvey, Vital Harvey, Narcisse Harvey, farmers, Xavier Warren, hotel keeper (to himself and his wife) to Cyrille Gauérin, senior, and Henri Gauérin farmers that they would expose themselves to damnation by voting for Defendant's opponent.
"11. The Reverend Mr. E. Roy curé of St. Irenée on the sixteenth of January last, and on the preceding and following days, in the pulpit and out of it stated to the Roman Catholic electors of the said parish and among others to Germain Lajoie, blacksmith, Jean Gauthier, Ferdinand Tremblay, Gilbert Bouchard, Octave Girard and Marc Bouchard, all farmers, that it was a case of conscience to vote for the Defendant's opponent.
Issue being joined, parties proceeded to enquéte.
The evidence being very voluminous, and being referred to at length in the argument of counsel and the judgments of Justices Ritchie and Taschereau, it is deemed sufficient in this statement to insert the following extracts taken from the exhibits chiefly relied upon by the parties:-
" 1. Extracts form pastoral letter of the Bishops of the Ecclesiastical Province, 22nd September, 1875.
" * * * * Each priest, on receiving from his Bishop the mission to preach and administer spiritual help to a certain number of the faithful has likewise, a rigorous right to the respect, love and obedience of those whose spiritual interests are confided to his pastoral solicitude.
" This subordination does not "prevent these societies from being distinct, because of their respective ends, and independent each in its proper sphere. But the moment a question touches faith, morals, or the divine constitution of the Church, her independence, or what is necessary for the fulfillment of her spiritual mission, she is the sole judge for the Church alone Jesus Christ has said: "All power is given to me in heaven and on earth...As the Father hath sent me I also send you... Going therefore teach ye all nations...He that heareth you heareth me and he that despiseth you, despiseth me. And he that despiseth me, despiseth him that sent me He who will not hear the Church let him be to thee as the heathen and publican, that is to say as unworthy to be called her child." (Matt. XXVIII., 18, 19; Luke X. 16; John XX. 21; Matt. XVII. 17.)
" The Church is not only independent of civil society, but is superior to it by her origin, by her comprehensiveness and by her end. " Undoubtedly, civil society originates in the will of God who has ordained that men should live in society; but the forms of civil society vary with times and places the Church was born on Calvary of the blood of a God, from His lips She has directly received her immutable constitution and no power on earth can alter the form thereof.
“The part of the Clergy in Politics.”
"Men bent upon deceiving you, Our Dearly Beloved Brethren, incessantly repeat that religion has nothing to do with politics; that no attention should be paid to religious principles in the discussion of public affairs; that the clergy has duties to fulfil, but in the Church and the sacristy; and that in politics the people should practice moral independence !
" Monstrous errors O. D. B. B and woe to the country wherein they should take root ! By excluding the clergy they exclude the Church, and by throwing the Church aside they deprive themselves of all the salutary and immutable principles she contains, God, morals, justice, truth; and when they have destroyed everything else, nothing is left them but force to rely upon !
"Whoever has his salvation at heart should regulate his actions according to the divine law of which religion is the expression and the guardian. Who does not understand how justice and rectitude would everywhere prevail, did rulers and people never lose sight of this divine law, which is equity itself, nor of the for midable judgment they shall have, one day, to undergo before Him whose look and strong arm nobody can escape. The people have, therefore, no greater enemies than those men who want to banish religion from politics, for under the pretence of freeing the people from what theycall priest tyranny, priests undue influence. they are preparing, for the same people, the heaviest chains and the most difficult to throw off: they put might above right, and they take from the civil power the only moral restraint which can stop it from degenerating into despotism and tyranny !
" They want to relegate the priest into the sacristy ?
" Why ? Because, forsooth, he has derived from his studies healthy and true notions on the rights and duties of every one of the faithful confided to his care Because he sacrifices his means, his time, his health, even his life for the welfare of his fellow beings?
“ Is he not a citizen as much as others What the first comer may write speak and act ! sometimes are seen flocking towards a country or a parish, strangers, who some thither to fasten upon the people their political opinions; the priest alone can neither speak nor write !. It will be permitted to whomsoever it pleases to come into a parish and hawk about all sorts of principles; and the priest who lives in the midst of his parishioners, like a father in the midst of his children, shall have no right to speak, no right to protest against the enormities which are uttered !
“ Some who to-day cry out very loud that the priest has nothing to do with politics, but yesterday found this influence salutary; some who to-day deny the competency of the clergy in these questions, but lately extolled the soreness of principles which gives to a man the study of Christian morals Whence this change if not that they feel to act against themselves the same influence which they once called salutary and just, and which they are now conscious no more to deserve !
"Undoubtedly, O. D. B. B., the exercise of all the rights of a citizen, by a priest, is tot always opportune; it may even have its inconveniences and its dangers; but it must not be forgotten that it belongs to the Church alone to give to her ministers the instructions she thinks fit, and to reprehend those who depart therefrom and the Bishops of this Province have not failed in their duty on this point.
" So far we have looked upon the priest as a citizen, and speaking politics in his own and private name, as any other member of civil society.
" Are there questions in which the Bishop and the priest may, and even sometimes should, interfere in the name of religion ?
" Without hesitation we answer: Yes, there are political questions in which the clergy may, and even should, interfere in the name of religion. The rule of this right and of this duty is to be found in the distinction we have already pointed out between Church and State. Some political questions, in fact, touch the spiritual interests of souls, either because they may affect the liberty, the independence, or the existence of the Church, even in a temporal point of view.
" A candidate may present himself whose platform is hostile to the Church, or whose antecedents are such that his candidature is a menace for these same interests. A political party may likewise be judged dangerous, not only by its platform and by its antecedents, but also by the particular platforms and antecedents of its chiefs, its principal members, and its press; if this party does not disown them and definitely separate therefrom, when, having been warned, they persist in their error.
" Can a Catholic, in these cases, without denying his faith, without proving himself hostile to the Church of which he is a member; can a Catholic, we repeat, refuse to the Church the right to defend herself, or rather to defend the spiritual interest of the souls confided to her? But the Church, speaks, acts, and combats by her clergy, and to deny those rights to the clergy is to deny them to the Church.
" The priest and the Bishop may then, in all justice, and shall, in conscience, raise their voice, point out the danger, and authoritatively, declare that to vote on such a side is a sin, that to do such an act makes liable to the censures of the Church. They may and should speak not only to the electors and candidates, but even to the constituted authorities, for the duty of every man who wishes to save his soul is marked out by the divine law, and the Church, like a good mother, owes to her children of every rank, love, and consequently spiritual vigilance. Therefore, to enlighten the conscience of the faithful, on all these questions which concern their salvation, is not converting the pulpit of truth into a political tribune.
" Doubtless, O. D. B. B., such questions do not arise every day, but that this right exists, no Catholic can deny.
"The nature of the question makes it evident that, to the Church alone, it belongs to determine, under what circumstances, she should raise her voice in favor of Christian faith and morals.
It may be objected that the priest is liable, like every other man, to exceed the limits assigned him, and that then the State has the right to recall him to the path of duty.
"To this we answer: Firstly, that it is offering a gratuitous insult to the whole Catholic Church to suppose that in her hierarchy no remedy can be found to the injustice, or to the error of one of her ministers in effect the Church has her regularly constituted tribunals and whoever thinks he has grounds of complaint against a minister of the Church, should arraign him not before the civil, but before the ecclesiastical tribunal, alone competent to judge the doctrine and the acts of the priest. Therefore, Pius IX in his Bull Apostolices Sedis, October, 1869, declared struck with a major excommunication such as, directly or indirectly, oblige lay judges to arraign ecclesiastical persons before their tribunal, against the dispositions of canon law.
" Secondly: When the State shall invade the rights of the Church, trample under foot its privileges the most sacred, as this happens to-day in Italy, in Germany and in Switzerland, were it not the height of derision to give to this same State the right to gag its victim ?
" Thirdly: If they lay down the principle that a power no longer exists because some one may abuse it, all civil powers must be denied for all such as are invested therewith are fallible men."
EXTRACTS from circular letter to the Clergy, accompanying pastoral letter of 22nd September, 1875.
"These adversaries of religion, who however, pretend to the name of Catholics, are the same everywhere; they flatter those among her ministers whom they hope to gain to their cause; they insult, they outrage the priests who denounce or fight their perverse designs. They accuse them of exercising an undue influence, of turning the pulpit of truth into a political tribune; they dare sometimes to drag them before the civil courts to give an account of certain functions' of their ministry; they will, perhaps, endeavor even to force them to grant a Christian burial, in spite of ecclesiastical authority. In view of such threatening, several among you, gentlemen, have asked us to trace for them a line of conduct. It is clearly pointed, out in the canonical rules.
" 1. A priest, accused of having exercised an undue influence in an election, for having fulfilled some priestly office, or given advice as preacher confessor or pastor, and being summoned before a court, should respectfully but firmly challenge the competency of the civil court, and plead an appeal to an ecclesiastical court.
" 2. A priest who, having exactly followed the decrees of the Provincial Councils and the Orders of his Bishop, would, nevertheless, be condemned by a civil court for undue influence, should suffer patiently that prosecution for the sake of the holy Church."
ANALYSIS of a Sermon by Mr. Sirois, Priest and Curé of St. Paul's Bay.
" Notice proceeding from the pastoral letter (mandement) of our Lords the Bishops, to be given to my parishoners on the Sabbath before the voting, the 16th day of January, 1876.
" MY BRETHREN,—It is with sorrow and sadness that I see myself under the necessity of making you acquainted with the grief I experience at this moment, with respect to certain light and disrespectful expressions which several of you are allowing yourselves to utter against our Bishops, their pastoral letter (mandement) and against the clergy. It seems that 1 ought not, in these days of excitement, to lift up my voice to give these Christians to understand how wrong they are in speaking in that manner, and that I am astonished to see them criticize to-day those whom they respected yesterday. " While thanking you for the kind reception which you have given me, I cannot refrain from expressing to you how grieved I am with the unchristian manner with which some people are speaking ill of the priests in our days. How can we explain the improper and unjust criticisms which in these days several of you are making against the Pope, the bishops and the priests? Ah ! brethren, I understand it; you have listened to the speeches of certain men who have come from afar to put you on your guard against the clergy, to utter a thousand falsehoods and a thousand calumnies.
" Beware ! brethren, they are false prophets, ravening wolves who come to raise a disturbance in the flock, who come to tell you that the Pope, the bishops and the Clergy have nothing to do with politics. Beware of their perverse teachings ! they want to seclude the Priests in the church and the vestry in. order to succeed better in their unchristian work, which is to scatter and divide the flock of Jesus Christ.
"These false prophets will tell you that the priests go too far in the time of elections, because they are afraid of losing their rights and their tithes. Yes, brethren, we can never go too far in defending the rights of truth.
" Allow me, brethren, to show you the inconsistency of the expression of some of you, with their general conduct. Are they sick ? Is one of their animals sick ? Have they any difficulty ?—they come immediately to ask the priest for remedies and advice. They have a full confidence then and how is it that in the time of an election these very same Christians speak ill of the priests, refuse them the right and competency to enlighten and counsel them in a matter of the highest importance, such as the importance of giving a vote. Know ye well that one day God shall ask you to give an account of it before His formidable tribunal. Is it not true that on your death-bed you would reproach yourselves bitterly if your conscience should upbraid you for having contributed, by your vote, to the election of men who wish to separate the Church from the State and who are working to destroy the confidence which you are to have in the priest?
"For you, brethren, bind yourselves to the Holy Church, to the salutary teachings which she gives you through the voice of her pastors, if you wish to escape the woes which the false prophets of our day prepare for us. Yea listen to those to whom it has been said: ‘Go ye and teach all nations.’ As long as you will remain docile to them, fear not to err. .Be deeply impressed with the truths set forth in the last pastoral letter (mandement) of our Bishops, on the Constitution of the Church, on Catholic Liberalism, and on the office which the clergy is to fulfil in the time of elections. Your chief pastors have not made this pastoral (mandement} for the United States but for the Province of Quebec; they do not wish to warn you against phantoms, but, indeed, against Liberalism and its partizans; then, do not listen to those who tell you that there is no Liberalism in our country, that the pastoral (mande ment) condemning and denouncing it has no right to be issued because those who are the authors of it (Liberalism) do not exist in our country. You shall see men having outward appearances of piety and religion allow themselves to be fascinated without suspecting it, by the deceitful words of the serpent Catholic Liberal. You know in what manner the serpent found his way into the terrestrial paradise, with what cunning he succeeded in convincing Eve that she should not die, nor Adam either, by eating of the forbidden fruit. You all know what took place the serpent was the cause of the misfortunes that are weighing upon us. In the same manner Catholic Liberalism wishes to find its way into the paradise of the Church to lead her children to fall. Be firm my brethren, our Bishops tells us that it is no longer permitted to be conscientiously a Catholic Liberal; be careful never to taste the fruit of the tree Catholic Liberal.
" Respect, my brethren, the holy hierarchy of the Church, that is, the Pope, our Bishops and your pastor. As long as I shall remain in communion with my Bishop as long as I shall preach to you the sound doctrine, you are to obey and hear me. I am here your legitimate pastor, and consequently to enlighten, instruct and counsel you; if you despise my word, you despise the word of your Bishop, then of the Pope, and even thereby the word of our Lord who hath sent us. You will perhaps say: ' You go too far; you have your own political party, and, therefore, you cannot force us to follow your opinion.' My brethren, if you believe the declarations of the first comer, whom you do not know, Will you believe me if I declare to you that I have no political party ? Yea, believe me, I have no party but that of good principles, I have no politics but those of teaching and defending them.
" Do you see, my brethren, how the priest is respected by certain persons? They are not afraid to compromise him by publishing private letters. Do you not see that the design of Catholic Liberalism is, indeed, to labour to break the bond, which unites the members of the Holy Church.
" Once more, then, brethren, beware of these false prophets who wish to brings disunion between you and your legitimate pastors ! Do not listen to their falsehoods and their calumnies. Obey the Vicar of Jesus Christ condemning Catholic Liberalism. Obedience to our Bishops who have pointed out to us its tenderness, obedience to your pastor who tells you to vote according to your conscience, enlightened by the pastoral letter (mandement) of Our Lords the Bishops of the Province of Quebec."
ANALYSIS OF REV. MR. LANGLAIS' SERMON.
" ST. HILARION, April, 1876."
" To My Lord, the Archbishop of Quebec :—
"We, the undersigned, parishioners of St. Hilarion, solemnly declare that our priest did not say on the 16th day of January last.
".1. That the parishioners of St. Hilarión were crooked heads but that there are among us some crooked heads, who, instead of submitting themselves to the decisions of the Church and obeying the letter of our bishops, make a pastime of keeping and increasing discord in the parish.
“ 2. He did not speak of the Conservative party, but said that we could not conscientiously vote for a Liberal candidate when he is known to be such.
“ 3. He did not say, in a general manner, that those who should vote for a Liberal candidate would sin mortally but that to vote for a Liberal candidate through contempt of the decisions of the Church, constituted a serious fault.
"4. It is absolutely false that he said that there are people, in the parish who call themselves Catholics, and who are Garibaldians, and make war against the Pope. Here is as much as we can remember of what he has said: ' You are to be called, this week, to choose a man to represent your interests in Parliament. I will, tell you to vote according" to your conscience, enlightened by your superiors. Do not forget that the bishops of the Province assure you that Liberalism is like the serpent which crept into the terrestrial paradise to tempt and lead the human race to fall.'
"According to our bishops, the Liberals are deceitful men then you must not follow them if you do not wish to be deceived. Liberalism is condemned by our Holy Father, the Pope The Church condemns only what is evil now Liberalism is condemned, then Liberalism is bad, and, therefore, you ought not to give your vote to a Liberal, your bishops declare it openly."
"Moreover, your first pastors tell you that ' the priest and the bishop can justly and must conscientiously lift up their voice to point out the danger, and declare authoritatively that to vote in a certain way is sin. '
" Now, if sometimes it is sinful to vote in a certain way rather than in another way, it cannot be, assuredly, when you are voting according to the wise counsels of all the bishops of the Province; and if it is not in that way, it must be in the opposite. However, I must tell you that if you are voting for a Liberal candidate, not believing him to be so, because your conscience tells you that he is the man that will best represent your interests in Parliament in such a case you do not sin. But if you know that he is a Liberal, you cannot conscientiously give him your vote; you are sinning by favoring a man who supports principles condemned by the Church, and you assume the responsibility of the evil which that candidate may do in the application of the dangerous principles which he professes. " And mark, brethren, it is not sufficient for a candidate to be a Catholic in order to deserve your votes because it is not precisely the man whom you are to consider, but the political principles as well as the principles of the Government which he supports.
" Victor Emmanuel is a Catholic, Garibaldi is a Catholic, and yet this does not prevent them from rebelling against the Church and from making war against our Holy Father the Pope, and from keeping him a prisoner in his castle. In the same manner the Liberals make war against the Church, for Jesus says: ' He that is not with me is against me.'
" Now the Liberals are against the Church, since she condemns them; therefore they make war against the Church, since they refuse to yield to her teachings.
" Remember, my dear children, that you shall have to render to God an account of the vote you will cast this week. Tell me on what side would you prefer to be at the hour of your death? Is it on the side of the Church, of your Sovereign Pontiff and your Bishops ? or on the side of Victor Emmanuel and Garibaldi d Consider, and decide like men and not like children.
" The act which you are going to perform has, perhaps, more importance than you could imagine.
" What is important, then, is to have your conscience enlightened by those whom you believe capable of advising you well, and to follow your conscience, thus enlightened, as far as you can. By doing this, God will not reproach you, and, consequently, I shall not do so myself.
26th January, 1877.
Mr . J. Bethune Q.C. of the Ontario Bar and Mr. F. Langelier, of the Quebec Bar, for Appellants;
It may be said with perfect truth no more important consideration can be presented to a Court of Justice than that which is involved in this case, viz.: the freedom of election. The principle upon which Mr. Justice Routhier has determined the case was to think himself incompetent and that the law of the Church is superior to the law of the land. That being the case, whatever may be the result, the petitioners are entitled to have a judicial opinion on this point. Now, no such immunity as put forward in the Respondent's factum exists in the Province of Quebec. In support of this immunity, is cited the fourth article of the Treaty of 1763, by which "His Britannic Majesty, on his side, agrees to grant the liberty of the Catholic religion to the inhabitants of Canada; and will, consequently, give the most effectual orders that his new Roman Catholic subjects may profess the worship of their religion, according to the rites of the Romish Church, as far as the laws of Great Britain permit" These last words indicate a limitation. It was so decided by the Bonaventure case lately in Quebec.
How far these pretensions are well founded will be ascertained by referring to Statutes at Large, ([1]) by which the free exercise of the religion of the Church of Rome was granted, subject to king's supremacy, declared and established by an Act made in the first year of the reign of Queen Elizabeth. By the form of oath, subjects were obliged to renounce all foreign allegiance even in matters of faith, and, consequently, a new oath was framed. The Quebec Act of 1791 was passed to show the desire to make our constitution similar in principle to that of England. Moreover, the first lines of the B.N.A. Act shew that desire they are as follows: "Whereas the Provinces of Canada Nova Scotia and New Brunswick have expressed a desire to be federally "united into one Dominion under the crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom." Now, the effect of these Acts must make the Province of Quebec subject to the English Constitutional system.
In the early cases in Ontario, the point came up how far the Common Law of Parliament was available and in force in this country. In The Queen vs. Gamble et al. ([2]) the law is laid down on that point.
By the "Rectories' Act ," ([3]) which is continued by the 129th section of the B.N.A. Act and which is applicable to both provinces, a direct subordination of the laws of the church to the laws of Canada is enacted. It may be said that it only dealt with the secularization of the clergy reserves, yet it is wider than that, for it is stated that they “all dénominations " shall be free, subject to the control just mentioned. This Act has not been repealed.
Undue influence has always been a subject of statutory enactment. It is admirably treated in Warren's book on Elections ([4]). Freedom of election lies at the basis of our constitutional rights.
What are the facts in this case ? In Quebec and specially in Charlevoix the electors are Catholics. Before the election a document signed by all the bishops was read in all the churches of the County. It is important to see what this document, a pastoral letter, contains to connect it with what was said in the pulpit afterwards. It is declared the Church is not only independent of civil society but is superior to it. Now nearly all the curès have construed that in such a way as to believe they had, the right to tell their parishioners how to vote and to apply all that is said, on Catholic Liberalism to the Liberal candidate Mr. Tremblay. The pastoral claims for the priest all the rights of a citizen, but, moreover, it declares that the priest is not subject to the Control of the tribunals of the land and yet authoritatively declares that to vote on such a side is a sin hat to do such an act makes liable to the cesures of the Church. What stronger language can be used? We do not deny the priest his right as a citizen but we protest against his assuming the right of making a voter liable to the censures of the Church. In the evidence a great deal has been said about Graribaldi and Victor Emmanuel. It will be seen how the sermons were in accordance with the pastoral. Allusion is there made to what happens to-day in Italy and Victor Emmanuel is known as having taken away the Pope's temporal power.
Besides this pastoral, a circular letter was sent to the clergy, and as petitioners argue that there was a union of priests to promote Respondent's candidature we refer to the following lines: " Before everything else, we must insist upon the union which should prevail among all the members of the sacerdotal order." The intention it is evident was not to deal only with matters of faith but also to act in matters of election. If so, we contend that if there is a conflict between these immunities and civil rights the immunities must be subordinate
[Here the learned Counsel referred to the circumstances under which the Respondent became a candidate.]
Now I shall take up the evidence which brings the clergy within the pale of the law. 1st. Analysis of a sermon by Mr. Sirois, of Baie St. Paul, delivered on 16th day of January, 1876, Sunday previous to the polling day. It is to be remarked that this document was prepared to answer a charge brought against the curé before his Archbishop, and that we can believe it was more colored when pronounced. Yet it is such a sermon as to be destructive of the freedom of the habitants who heard it. In it there is a declaration that they are bound to obey the priest. Now are these simper habitants free agents with such a declaration ? We are told that the Protestant clergy might say such words. But there is this difference between Protestants and Catholics. Protestants are not bound to this doctrine of obedience Undue influence is a question of degree. What may be undue influence to one class of "people may not be to another There are cases of undue influence with reference to property, viz: Huguessin vs. Basely, ([5]) and case of Holmes the Spiritualist. Undue influence begins the moment the party ceases to be a free agent. As to the evidence which has reference to this sermon see depositions of Xavier Larouche, Frs. Turgeon, A. Grirard, Oct. Simard, Z. Perron, Florent Coté, Pierre Danielson, Boniface Larouche, J. B. Bolduc, L. Pilote, Maurice Bouchard, Etienne Paquet and Emile Jacot.
The evidence on the other side is what I may call negative evidence; but still the Respondent's witnesses went too far for they said that in the sermon there was no reference to elections. Now, the analysis of the sermon, which they signed, proves the contrary.
The learned Judge who tried the case has found, as a matter of fact that four or five persons have been influenced by the sermons but he has declared that it was not a ground for setting aside the election. Under the Dominion Act the law requires but two things. 1st. That an Act of undue influence has been proved, and 2nd. That agency has been proved- Now it would seem that the learned Judge had in his mind the law as introduced in Ontario which declares that if the acts complained of were not sufficient to disturb the election they will not affect it. The Dominion is the old law as interpreted in O'Malley and Hardcastle. ([6])
The next sermon is that of the Rev. Mr. Langlais, curé of St. Hilarion. [See analysis of the sermon and evidence relating to it.]
The next sermon is that of Rev. M. Fafard. Two witnesses, Pitre Gilbert and Dominique Duchesne, have related the sermon preached by the Rev. Mr. Fafard on the 16th of January. Their testimony agrees perfectly with the solemn declaration sent shortly after the election, to His Grace the Archbishop of Quebec, and proved by the witnesses for the defence. This declaration forms part of the record.
As to Rev. Mr. Roy's sermon cure of St. Irénée, I refer to testimony of J. B. Gauthier, Gilbert Bouchard, Ferd. Tremblay, L. O. Gauthier, and Geo. Tremblay.
It was with reference to Rev. Mr. Tremblay's sermon, cuvé of St. Fidéle, when Abel Maltais was examined that the immunity of the clergy was raised. The objection reads as follows .—" Objected to by the Defendant: 1st, Because the Petitioners have no right to bring evidence before this tribunal of any fact or act done by the Rev. Mr. Tremblay in his capacity of priest or curé of the Parish of St. Fidéle in the pulpit of the church of St Fidéle and in the exercise of the functions of his ministry 2nd Because this tribunal is incompetent to pass a judgment on the conduct of an ecclesiastic in the exercise of the functions of his ministry inasmuch, as an ecclesiastic is only responsible for his conduct to his ecclesiastical superior and to the ecclesiastical tribunals; 3rd. Because no ecclesiastic can be summoned before a civil tribunal, either as plaintiff or as defendant, or as a witness, without his having previously obtained leave from his ecclesiastical superior and that such leave has not been produced in the case; 4th. Because in fact, Rev. .Mr. Tremblay has already been summoned before his ecclesiastical superior to answer the same charges made in this case and for the words he spoke in the pulpit, and of which it is wished to give evidence in this cause." The witnesses examined on this sermon are J. Tremblay, (p. 21) who established the fact that the cuvé said there was no difference between Catholic Liberalism and Political Liberalism .Abel Malìtais E. Bouchard and D. Dassylva of those admitted to have been influenced; Alexis Gagnon, D. Gauthier and T. Brassard. The importance of some of this evidence is to judge of the intelligence of the people; and having got that, you are then able to judge of the influence exercised and to find if it was undue and to what degree. It is always difficult to get direct evidence; one man remembers one thing and another man another thing, and the mischief is increased by being perpetuated by each channel through which is is repeated. The next case of clerical undue influence we have to deal with is that of Rev. Mr. Cincq-Mars. The first witness I will refer to is the Rev. Mr. Cincq-Mars who is the only cuvé examined in this case and that by the Respondent. His evidence is important; he proves the pastoral letter. It seems he was brought up as a witness to contradict Johnny Desbien's evidence as to who was present when the curé spoke to him of the election.
We get the declaration that disobedience to the pastoral letter is a grievous sin. The words, " I then explained that sub grave meant under pain of grievous sin," is a most positive declaration on this point. We have a distinct avowal of the purposes for which he made that statement, viz.: to condemn Mr. Tremblay's party. While on this part of the witness' deposition, I will remark the following answer with respect to the question of agency: " State whether the following passages contain the truth as to the action of the clergy, &c, 2nd. In the first place let us say distinctly that the clergy of Charlevoix are not ashamed of having accepted the candidature of Honorable H. Langevin, and of having done the best in his favor, while restricting themselves within the limits of the Provincial councils, the pastoral letters and the civil laws.' Answer: "I admit the truth of what is stated in the 2nd extract."
The proper deduction from Curé Cinq-Mars testimony is that he told his parishioners that, inasmuch as Mr. Tremblay professed Liberalism it would be a grievous sin to vote for Mr. Tremblay.
[The learned Counsel then commented on Judge Routhier's judgment and argued against the arguments put forward by him in favor of the personal immunity of the clergy in the Province of Quebec]
It is manifest from this judgment that he considers there exists on the part of the clergy some personal immunity. An attempt is also made to declare them not liable to be summoned before a Court. I take it there is no such immunity which prevents them from being summoned. There are some well-known privileges such as the Advocate's privilege, as to what has taken place between him and his client.
But in this case no privilege was sought for by these gentlemen, it is the Defendant who deliberately raises the objection. In the Bonaventure case, in Province of Quebec, lately decided, that point was disposed of, and all three Judges came to the conclusion that the privilege did not exist. In Ontario it does not exist. Surely the Catholic doctrine on this point must be universal as well as on other points. The learned Judge refers to the celebrated case he decided at Sorel "Derouin v. Archambaullt ([7]) in which he invoked the privilege of ecclesiastical immunity in order to declare himself incompetent. This decision was unanimously reversed by the Court of Review at Montreal. Reference is made that no accusation was served on them in virtue of section 104, 37 Vic, chap. 9. They are not liable under the Act of 1876. This Act cannot have a retroactive effect, and this is not asked. what the learned Judge means, is to set up judicially this personal immunity. He puts the question, that if any person may come to the church door and speak, why not the clergyman? The fallacy is that they do not stand on the same footing. The one is speaking excathedra, he is laying it down as part of their faith. Now if you find the clergy all arrayed on one side, stating that a party is condemned as a matter of faith, and to put you under pain of sin or grievous sin, can it be said fairly they occupy the same position as others? The Legislature intended to give each man his franchise, and the law, as enacted, was found necessary to give him freedom. If the clergy had gone outside of the church and had addressed the electors as citizens,it might be said they were right. But when they bring to bear to support their candidate, the power of the Church, with its censures and penalties, I maintain there can be no freedom. In such cases the priest brings himself within the pail of the law. The learned Judge then goes on to say that the intention of the Legislature in adopting this law was not to limit and restrain the liberty of ecclesiastical preaching. The law is not new, it was in the Statute of Canada, 1860, p. 47, and this was framed on the English Act of 1854. The judicial interpretation given to this law in the Gralway case was to extend it to "priestly influence. Is it not fair to believe that the Dominion Parliament intended it to apply to this influence. There are numerous cases in Great Britain decided in accordance with this view I will refer to the Mayo case, Dublin case, Galway case, Longford case, and Tipperary case. ([8])
The interpretation of the Dominion Act should be according to the precedents and conclusions arrived at. There is no reason why the influence of the priest should be greater in Ireland than in the Province of Quebec. On the contrary, here the priest has not only a spiritual power but he has a temporal power, that of enforcing the payment of the tithes to which he is entitled by the law of the land.
All religious tests have been abolished, and no test is required from the candidates. A Free Thinker can be a candidate. Now if the "Pastoral and circular in this case, together with the judgment rendered by the Court below be carried into effect would it not be imposing a test which Parliament has not thought proper to impose as far as Lower Canada is concerned ? The question is, after all, which policy is to be supreme, the Church or Parliament ? Now, if a Church exists in Lower Canada either as a State Church or as a voluntary association, it is by virtue of the law of the land; is it reasonable, then, for the clergy to make war on Civil Law which allows them to collect tithes, The measure of freedom should be the same for Catholics as for Protestants. There is no freedom if they are allowed to denounce the voters from the pulpit. Nor is it right to the Protestant element in the Dominion that the habitants should not be free. If you impose the restraint of the priest on the electorate, what would be the result. The candidate would have to go, hat in hand, to these gentlemen, and, when elected, they would be members representing the powers of the Church
As to necessity of specific threats, it is a question of power, and a general threat is as great power as a specific threat. The particular form of words used makes no difference. They are told, you commit a grievous sin if you take a particular course. Refusal of sacraments is only one form of censure.
The circular tells them to be united; a meeting is held at Bale St. Paul and they all decide to support the candidature of Respondent. How could this pastoral be discussed, when the elector is told that the priest is speaking the Divine word, and that he is bound to obey the Church ?
As to the question of agency, refer to the summary of the conclusions of the judgment. There is not a word of agency, which proves that the agency was thought so plain that it was unnecessary to comment on it.
From the evidence of the Respondent it is clear that the priests of the County of Charlevoix were, collectively and singly, his agents. By law, agency may be inferred from the existence of facts. Take the case of bribery. A candidate tells his agent not to bribe, yet, if he does bribe, the law makes the candidate responsible. The view taken in all cases is that if you find a candidate and another "person making common cause, working together, &c., there is agency, and the reason is that inasmuch as the candidate takes the benefit of this "person's acts he must take the responsibility. See Limerick case, ([9]) on this point; Galway case. ([10]) Implied authority results from any act or word of the candidate which implies that he wants another person to "work in order to secure votes to him, or that he knows that person to be so working, and does not disallow his conduct. ([11])
I submit undue influence has been established because JudgRouthier admits this fact, and that though, as a matter of fact, it might not have changed the result of the election as a matter of law the election should be voided.
Mr. F. Langelier:
As to intimidation by Rev. Mr. Doucet upon Penis Harvey.
Denis Harvey declares that the Rev. Mr. Doucet, curé of that parish, said nothing in the pulpit against Mr. Tremblay; it was in private conversation that he spoke against him.
He has heard reports of sermons preached by the cures of the other parishes of the county; he is alarmed on being told that if Mr. Tremblay is elected, religion will be abolished before two years have elapsed. He goes to his curé expressly to consult him. Mr. Doucet says to him that it is true Mr. Tremblay, his parishioner, is a perfectly honest man, capable of rendering great services to the country, but that he supports a dangerous party. " I will read the pastoral letter of the Bishop's next Sunday,” he adds: “after that, those who wish to lose their souls may do so (ceux qui voudront se perdre se perdront") Penis Harvey declares he understood that these words were directed against Mr. Tremblay, and certainly he could not otherwise understand them.
This fact related by Denis Harvey is very important, not on account of its intrinsic value, but as it establishes how unanimous the cures were against Mr. Tremblay. Mr. Doucet is known to be a very moderate man, a priest of exemplary prudence; he never interfered in politics. So much so that in the preceding elections his opinions could not even be surmised. But in this election, the action of the clergy was so decided that he could not resist the movement and was carried as it were against his will by the force of the current.
[The learned Counsel referred to some further evidence bearing on the question of undue influence, and then commented on the Galway case, showing that that case was in point, and that the law should be interpreted here. as it was in the Galway case. He concluded by stating that the corrupt practices with which the Petitioners had charged the .Respondent were sufficiently proved to have the election declared void by the Court.]
Mr. J. Cockburn, Q. C, of Ontario, and Mr. C. H. Pelletier, of Quebec, for Respondent :—
Assuming that the priests of the County of Charlevoix, have preached against Catholic Liberalism, and that it has had some effect on the electors, we contend that by the Quebec articles of capitulation, by the treaty of Paris, and by the Imperial Act 1791, absolute freedom in the exercise of their religion was granted to the Roman Catholic inhabitants of the Province of Quebec. These privileges and rights have not been taken away by any Imperial or Dominion Act. It cannot be held that the general language used in the 95th section of the Dominion Controverted Election Act has taken away these rights so as to prevent priests speaking in the pulpit against a candidate who would be e. g. in favor of establishing Divorce Courts in the Province. The pastoral letter written long before the election is simply an exposition of the Catholic doctrine on certain subjects. It is the duty of every Catholic priest to preach in accordance with his Bishop's instructions, and the liberty of preaching necessarily forms part of the free exercise of their religion. We submit, therefore, that they had a right to so preach, and that their sermons cannot be treated as spiritual intimidation within the meaning of the Irish cases cited by Appellant's Counsel.
The County of Galway case indeed is quite different from that of Charlevoix.
In the Irish case the record shows that several bishops and about fifty priests had been constantly in communication with the candidate Captain Nolan; that in order to induce him to withdraw at a previous election, they had pledged themselves verbally and in writing to support him against any comer; that, later, when the county was once more vacant, this candidate requested them by letters to call meetings; that he was present at meetings where these clergymen used excessively violent language, and that finally he thanked them for it.
In their sermons, the parish-priests here, have been content with, reading the pastoral-letter which the Bishops of the Province had published in the month of September, 1875, not on account of this election, but on account of the principles which should be propounded and defended. Thus, after reading this pastoral-letter, the pastors confined themselves to commenting upon it generally, without applying it to the political parties which . divide this country and to the candidates who were before the people in Charlevoix. They explained the doctrine of the Catholic Church with respect to the several subjects touched upon in this pastoral-letter, without attacking or insulting any political party or any candidate.
There is, therefore, no parity between the Galway County election, and that of the County of Charlevoix.
The learned Counsel then referred to the Borough of Galway case decided by the same Judge, ([12]). also to Brickwood & Croft ([13])
As to the quantum of intimidation there can be no comparison as the evidence shows that they were only four cases. The case of Bonaventuee is not in point. There threats were used and the sermons were delivered in the presence of the Respondent. Since the ballot, the free exercise of the franchise is full and complete and a person can no longer be influenced to vote for one in preference to another.
As to the question of agency—none has been proved. The Respondent positively denies that the members of the clergy were employed by him. If the priests were acting as agents it was as agents of the Bishop and not of Respondent.
The words imputed to Defendant cannot constitute the priests his agents. If he had said I will come forward provided the manufacturers are favorable to my candidature, would that constitute all the manufacturers his agents?
To establish an agency you must prove that the party has agreed to canvass and procure votes. See Brickwood & Croft, ([14]); O'Malley & Hardcastle, ([15]); Borough of Galway case, 1874, ([16]) Priests doing nothing more than preaching doctrines of their church can not be declared agents of the Respondent. Moreover, in this case it is proved that Mr. Tremblay tried to get the support of the clergy and not having been successful, he surely cannot charge Respondent because they preferred to be favorable to him. The clergy has the civil right as well as other persons of volunteering their united support to a candidate.
When the petitioners attempted to prove the acts with which they charge seven of the parish priests of Charlevoix we made the following objection, which has been repeated for every similar case, viz :—
"Objected to this evidence by the Défendant:
“1.Because the Petitioners cannot prove before this tribunal any fact, any act performed by the Reverend Mr. Wilbrod Tremblay, in the pulpit, in the church of St. Fidèle, in his capacity of priest and parish priest of this parish and in the exercise of the functions of his office;
" 2. Because this tribunal is incompetent to judge an ecclesiastic's conduct in the exercise of the functions of his office, in as much as this ecclesiastic is answer able for his conduct only to his ecclesiastical superior and to the ecclesiastical tribunals;
" 3. Because no ecclesiastic can be summoned before a civil tribunal either as plaintiff, either as defendant, or as a witness, without leave from his ecclesiastical superior, and that such leave is not fyled in this case ;
" 4. Because in fact the Rev. Mr. Tremblay has already been summoned before his ecclesiastical superior to answer the same charges that are made in this case and explain the words he is accused of having uttered in the pulpit, all which is attempted to be proved before this tribunal."
This objection, which has been reserved on its merits, raises a question of the highest importance in a social and religious point of view; for it leads to the discussion of the relations which should exist between Church and State.
We affirm, as an incontestable and uncontested fact, that the Church is perfectly free in this country. This freedom is not denied by the petitioners, who are Roman Catholics, and who cannot complain should they be judged according to the rules of their church, inasmuch as these rules are recognised by the law of this country.
The Church being free, the civil law cannot fetter its action.
The reasons given to sustain our objections may be summed up as follows :—
This Court has not the right nor the competence to appreciate the evidence produced in this case, with respect to the acts of certain parish priests, because the Catholic doctrine formally denies to civil tribunals the right of judging either the teachings of the Church or its ministers, Should we establish our proposition viz '. that the doctrine of the Church does not admit in civil tribunals the competence to judge its teachings and its ministers; we shall have the right to conclude that the evidence produced before this tribunal is illegal, and that consequently it must be rejected from the record and considered as null and void. The Catholic Church is a perfect society. In this case, we claim for the Church the right to exercise freely its functions. We want that its legislative, executive and judicial power be not overlooked by civil society. Thus we maintain that the petitioners deny to the Church the possession and exercise of these rights, when they attempt to submit to the State, represented by this Court, the judgment of its legislation, of its doctrine and of its ministers. The proof under reserve of objection has been made of certain sermons of the parish priests of Charlevoix, as well as of certain other words spoken by them out of the pulpit. Had the Court the right of examining this evidence it would have the equal right of appreciating it, judging its meaning'. Consequently the Court would have the right of judging the doctrines, the preaching, the teachings, the ministers of the Church; that is to say it would declare itself superior; it would state positively that the Church is not a perfect society, is not independent, inasmuch as the Church would be liable to have its teachings its doctrine, its ministers judged by officers of another society. Preaching (and upon this runs nearly the whole evidence on Petitioners'' behalf) is within the exclusive jurisdiction of the Church, and the State is not a competent judge of its value nor of its teachings.
In the case now under consideration it is said:
'We do not wish to deprive the clergy of their political rights; but we ask this tribunal to repress and punish the abuse which the parish priests of Charlevoix have been guilty of during the last election. We admit the priests rights as a citizen; but we require that, should he use them, he be placed on the same footing as other citizens.' The liberty of preaching exists in election times as well as in any other time. The priest in this circumstance, as ever is responsible for his conduct only to his ecclesiastical superior. In elections, civil tribunals have not more than in any other time the right of judging the teachings of the priest, of the minister of the Catholic Church The Church alone has the right of judging within what limits, in what circumstances, and under what forms, the right of preaching should be used; otherwise, civil society would encroach on religious society.
In support of our pretension, we quote to the Court ' Guyot, La somme des conciles." ([17])
We refer the Court also to Phillips who is an authority in these matters.
The pastoral letter of the Bishops of Quebec, dated the 22nd September, 1875 is also very formal when it denies the competence of secular judges in reference to ecclesiastical acts and sons
This freedom of preaching and of the priest's speech, which we claim in this case has been several times admitted by our tribunals, and amongst others in a case of Poulin against the Reverend George Tremblay, parish priest of Beauport, unanimously confirmed by the Court of Appeal, Quebec. The learned counsel also cited Tarquini ([18]).
But should we suppose for a moment that the Court will maintain the legality of this evidence the Defendant contends that it is insufficient in fact and does not in any way justify the charges brought by the Petitioners in their Particulars against certain parish priests of Charlevoix.
The Rev. Mr. Cinq-Mars, parish priest of St. Siméon, is charged, in the Particulars with having “in and out of the pulpit said to all the Roman Catholic electors of his parish and amongst others to Narcisse Bouchard, Johnny Desbiens, Abraham Tremblay, Michel Imbeau, farmers, Séraphin Gruérin, merchant, and Michel Tremblay beadle that to vote for the Defendant's opponent was a case of conscience, a mortal sin, a great sin;" but they have tried to prove only two charges, viz., N. Bouchard and J. Desbiens.
As to N. Bouchard, Rev. Mr. Cinq-Mars in his deposition, says :—
" I had no intention whatever of influencing Narcisse Bouchard's vote. 1 even believed that he had no vote. This conversation took Place by mere chance and was without any importance."
Bouchard corroborates this part of Mr. Cinq-Mars' evidence: "What Mr. Cinq-Mars told me did not change in any way my opinion. He told me this very quietly, and he had not the appearance of an election canvasser."
In order that there may be intimidation, undue influence it is required that the act should, be committed, in view of the elector's vote: "It must be shewn that it was done on account of the vote." ([19])
Suppose even we would accept Bouchard's version, this act is without importance and is one of those which the law does not take notice of "de minimis non curat lex" ([20]) As to the charge against J. Desbiens, this is what Rev. Mr. Cinq-Mars says: "I swear positively that I did not then say to Johnny Desbiens, that to vote for Pitre Tremblay would be a mortal sin. I knew then François Bergeron's opinion; he was for the defendant; but I did not know Johnny Desbiens' opinion, and I did not ask him for it"
As in Narcisse Bouchard's case this is a conversation which took place by chance, and without any intention whatever of influencing Desbiens vote. The parish-priest did not even take the trouble of enquiring about his opinion.
The charge against Rev. "Mr. Doucet is not justified by the evidence.
During the election, he went to the parish priests house purposely to speak to him about the election. The parish priest told him that Mr. Tremblay was an honest man, that there was nothing wrong in voting for him. After that, they began to speak about the electoral canvass: “It is strange, said the parish priest, how people will become excited about elections; I for one do not become excited, and I remain quiet. On Sunday next, I shall read to them the pastoral letter, and, after wards, if they wish to be lost, they will be lost." He did not speak to me against Mr. Tremblay 's party, adds Harvey.
It is clear that the parish priest intended to speak about the canvass and not about the votes By the words i if they wish to be lost, they will be lost," he designated those who became excited, who made trouble, who behaved badly during the election.
There is no evidence against Rev. Mr. Roy Numerous witnesses prove that he did not speak about the election and that he had declared that he was neither for Mr. Langevin nor for Mr. Tremblay; that he belonged to no party.
As to the charge against Rev. W. Tremblay. The evidence is contradictory. Ten of Defendant's witnesses contradict the six witnesses examined by the petitioners, as well its the political character that the latter have tried to give to the parish priest's words.
The charges against Rev. Mr. Fafard are supported but by two witnesses and by the evidence produced by the defence; nine witnesses prove that the parish-priest did nothing but his duty as a pastor. He wished to warn his flock of the danger that threatened them if they kept company with a man of had character, a man who constantly spoke against his parish-priest, and whose conduct showed easily what principles he had. There is nothing in his words that can affect the election. It is at most a matter to be discussed between the parish-priest and his parishioners.
Besides, in an analogous case, on deciding the Galway Town election pages 350 and 351, Mr. Justice Keough, in his judgment on the 3rd of March, 1869, declares that such words do not interfere with the freedom of an election
To prove their charge against Rev. Mr. Langlais, the Petitioners have examined 18 witnesses The Respondent, by twenty-eight witnesses, proves that the sermon explained the Bishop's pastoral letter read by the parish-priest. It showed to the parishioners of St. Hilarión what the Church teaches by its Bishops with respect to Catholic Liberalism. The parish-priest attacked neither the Conservative party the Liberal party, Mr. Langevin, nor Mr. Tremblay. He neither threatened nor intimidated any one. He left every one free to vote for whom he pleased, recommending only to the people to vote according to their conscience, and not to give the scandal of selling their votes.
And with respect to the three or four individuals who they say, have changed their opinion on account of the parish-priest's sermon, either these individuals, examined by the defence, prove themselves the contrary, or the contrary proof is given in a positive manner by other witnesses of the defence. These witnesses are Antoine Bouchard, Pierre Tremblay, Gregoire Tremblay, David Grilbert, &c.
With respect to Réul Asselin, who tried to show that the parish-priest had refused to make his pastoral visit with him because he did not wish to follow the parish-priest in this election, it has been superabundantly proved, by the witnesses of the defence, that it is not so but that the reason of this refusal by the parish-priest was that Réul Asselin always thwarted the parish-priest in Church business.
The Petitioners have specially directed their attacks against the Reverend J. Sirois, parish-priest of St. Paul's Bay. They have examined eighteen witnesses; the Defendant on his side has answered by examining twenty-eight witnesses.
The testimonies on both sides are so numerous that we would fear to abuse the patience of the Court should we undertake to examine these testimonies one by one; to compare them in order to see how they contradict one another and to convince the Court that after all nothing certain remains before it but the analysis of the parish-priest's sermon. To this the whole evidence is reduced. It matters very little what the electors may have understood, at a period when they were working zealously in the contest; the whole question is what did the parish-priest say. And if he has spoken within the ordinary limits of preaching, no one can complain about the impression produced by his words; for words uttered with conviction must always produce some effect.
The learned Counsels in an argument which lasted nearly two days,commeneed on the voluminous evidence on the part of the defence in answer to the different charges brought against the Respondent, and concluded by referring, on the question of the free exercise of the Catholic religion in the Province of Quebec, to Christie's Canada, Vol. 6, p. 16; Despatch of Lord Dorchester, 1789; 2 Foyer Canadien, p. 131; Clarke's Colonial Law, p. 8; Quebec Act, 1774.
Mr. J. Bethune Q.C. in reply :—It is manifest, by reading the circular to the clergy that the Church did not fear a collision with civil power. It was not merely doctrinal preaching, as contended for by Respondent's counsel, but guidance in civil elections. The parish priests were to explain the pastoral letter at the eve of an election. In this case all the "priests of the county had in view was the success of Mr. Langevin. As to articles of capitulation, they were only of authority until the signing of the treaty. ([21]) Catholics under Treaty of Paris 1763 cannot claim more freedom than Rev. Dr. Doyle did in 1825 as a Catholic living under the British Constitution.
This case cannot be distinguished from the Bona-venture case. It is simply a question of degree as to the punishment threatened. In both cases what was said affected the freedom of the franchise As to priests not being agents because they did not go round canvassing, surely if a priest calls his flock together on Sunday, and in church, where no one can answer him publicly ex cathedra tells his parishioners, that they must vote for a candidate it is equal to canvassing from house to house. In the Galway case ([22]) a letter was deemed sufficient to prove the agency. The general doctrine of agency, as laid down in Art. 1050—1054 of C. C is applicable here.
As to the immunity of the priest, it cannot exist under the British constitutional system. In the British North America Act there is not a word of this immunity and no difference is made in favour of elections taking place in the Province of Quebec. This is a new doctrine in Quebec Several priests have been condemned by the Courts of Justice for libel and this immunity was never raised In Ontario and in the Untied States Catholics freely exercise their religion, and yet they do not claim these rights and privileges. If your Lordships are powerless to give effect to this Statue, manifestly it must destroy freedom in every county in the Province of Quebec.
28th February, 1877.
TASHEREAU, J.(translated):—I acknowledge that it is with great misgivings as to my own powers, and with a deep feeling of regret that I find myself compelled to pronounce a decision as a Judge in a contestation of the nature of the present. Already an identical case, in which most important questions of law arose, has been unanimously decided by three eminent Judges of the Supreme Court of the Province of Quebec, professing the. Catholic religion, and has created a precedent of high importance; but, on the other hand, the principles which those honorable Judges took, as the basis of their decision, have been commented on, and severly blamed as opposed to the faith, by an eminent member of the Canadian Episcopate. I mention this circumstance in order to show the difficulty of the position in which I, together with one of my colleagues upon this Bench, am placed as a Catholic.
We have, therefore, to approve the principle set forth by the Judges in question, or to adopt the criticism pronounced upon them by his Lordship the Bishop, of whom I have made mention.
The whole difficulty aries out of the interpretation of the electoral law in reference to the asserted undue influence exercised by the clergy and to the power of the Civil Courts to decide that question.
The difficultly is further increased by the decision rendered in the first instance by his Honour Judge Routhier, who set forth principles of law diametrically opposed to those of the Judges above alluded to.
In January, 1876, the Respondent was elected a member of the Parliament of Canada, as representative for the electoral district of Charlevoix, after a severe struggle on the part of Mr. P. A. Tremblay as a candidate.
The Appellants, electors of the County, and partizans of Mr. Tremblay, contested the election of the Respon dent for corruption, threats, undue influence and corrupt practices, and their contestation was set aside by Judge Routhier, and it is of that judgment that the Appellants complain.
The chief grievances of the Appellants are comprised in the exercise of undue influence by certain curès of the County by means of sermons delivered by them from the pulpit during divine service upon several Sun days, immediately preceding the day of polling, and also in private conversation; and, further, in threats held out to electors by influential persons in the county.
To succeed in their- contestation it was incumbent upon the Appellants to prove :----
1. The agency of those members of the clergy and other persons.
2. Threats, amounting to undue influence, promises, or other corrupt practices.
I say at once that the Appellants have proved that agency in the .most complete manner possible in such a case.
It appears, in fact, that through one Mr. Onésime Gauthier, the Respondent the Hon. Mr. Langevin, was invited to come and solicit the votes of the. electors of the County of Charlevoix; that gentleman replied that he would not accept the candidature except upon the condition that the support of the clergy of the County was assured to him. Mr. Grauthier assured himself of the good feeling of the several cuvés in the County, and upon the report which he made to the Respondent, the latter accepted and entered upon his electoral campaign; he met with and visited the cures; at a public meeting the Respondent declared that the members of the clergy were favourable to him, and that the electors should listen to the voice of their pastor and at Eboulements, in the presence of the Respondent one Mr. Grosselin, Vicar of the parish, publicly declared that all the clergy supported the respondent, and had unanimously selected him as their candidate. Taking as a sequence of all this, the sermons which a large number of those cures delivered, from the pulpit denouncing Mr. Tremblay and his political party, evidently with the view of favouring the avowed and welknown candidature of the Respondent, it is indubitable that that gentleman is responsible for the consequences of the conduct of those cures if the evidence shows on their part the exercise of undue influence provided for by the electoral law.
Let us remark here that the law does not require that the agency should be established by means of a written or even of a verbal authority; it is inferred from the relations of the parties from the bona tide support which the agent affords to the candidate with the sincere view of ensuring his election. The agent here in question is not the one specified by section 121 of the Election Act. whose name should be notified by the candidate to the returning officer, but is the one specified by section 101; that is, the one who, with the formal or implied consent of a candidate in good faith supports his candidature. All these qualities are pre sent in the case of the reverend curés of whom I shall speak in a moment.
Decisions in England the election law of which is identical with ours, and those rendered in Ontario and the Province of Quebec, lay down the principle that every person who in good faith takes part in an election for a candidate with his consent, becomes, ipso facto, an agent of the candidate. Upon that point there can be no doubt, and, unless I am mistaken the election of a prominent member of Parliament was annulled in consequence of the excessive zeal of his agents.
l shall now give a brief summary of the statements of the reverend cures of which the Appellants complain.
1. The Reverend Mr. cinq-mars, curé of St. Fidèle, said to one Narcisse Bouchard upon an occasion when he had repaired to his (Bouchard's) house to administer the sacraments, that "to vote for M. Tremblay was a grave sin, a matter of conscience," and that was said but a few days before the polling. Narcisse Bouchard swears that the conversation was commenced by Mr. Cinq-Mars. On the same day Mr. Cinq-Mars being taken back to his house by the person named Johnny Desbiens, said that "to vote for Mr. Tremblay was a mortal sin." And, further, the reverend gentleman repeated the same thing from the pulpit.
Let us remark that M. Cinq-Mars when heard as a witness for the Respondent did not deny those conversations and declarations.
2. The Reverend M. Doucet, Curé of Malbaie, although he delivered no sermon with which he can be reproached nevertheless said to the person named Dennis Harvey, that a although it was true that Mr. Tremblay was a perfectly honest man, and capable of doi