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9o. Si cette autorité romaine a décrété depuis la cession du Canada à la Grande-Bretagne et le statut suscité qu'à peine d'anathème et d'excommunication, il fallait pour le dit honorable juge, comme catholique romain, croire et pratiquer " qu'a notre époque, il est utile que la religion catholique romaine soit considérée comme l'unique religion de l'Etat, à l'exclusion de tous les autres cultes?"
lOo. Si cette autorité a décrété depuis la cession du Canada à la Grande-Bretagne et le statut suscité, qu'à peine d'anathème et d'excommunication, il fallait pour le dit honorable juge, comme catholique romain, croire et pratiquer " que l'Eglise romaine a le droit d'employer la force et qu'elle a un pouvoir temporel direct et indirect?"
llo. Si cette autorité romaine a décrété depuis la cession du Canada à la Grande-Bretagne et le statut sus-cité qu'à peine d'anathème et d'excommunication, il fallait pour le dit honorable juge, comme catholique romain, croire et pratiquer "que l'immunité de l'Eglise romaine et des personnes ecclésiastiques appartenant à cette Eglise ne tire pas son origine du droit civil, savoir de Sa Majesté?"
12o. Si cette autorité romaine a décrété depuis la cession du Canada à la Grande-Bretagne et le statut sus-cité qu'à peine d'anathème et d'excommunication, il fallait pour le dit honorable juge, comme catholique romain, croire et pratiquer "que l'autorité qui a décrété tout ce qui précède est infaillible et par conséquent doit être obéie comme si Dieu, supérieur à toutes les puissances de la terre, commandait lui-même de croire et pratiquer ce qui précède?"
Et si le dit honorable juge déclarait n'avoir connaissance d'aucun décret, ordre, déclaration ou injonction comportant les prescriptions qui précèdent, il est respectueusement requis de déclarer, par écrit suivant la loi:
lo. S'il est membre de la communauté ou corps des catholiques romains?
2o. Si comme tel, il n'est pas soumis à l'autorité religieuse qui siège ù Rome, Italie?
3o. S'il se considérerait lié, en conscience, par la doctrine contenue en la troisième question des présentes conclusions, si elle avait été décrétée?
4o. S'il se considérerait lié, en conscience, par la doctrine contenue en la quatrième question des présentes conclusions, si elle avait été décrétée?
5o. S'il se considérerait lié, en conscience, par la doctrine contenue en la cinquième question des présentes conclusions, si elle avait été décrétée?
60. S'il se considérerait lié, en conscience, par la doctrine contenue en la sixième question des présentes conclusions, si elle avait été décrétée?
7o. S'il se croirait lié, en conscience, par la doctrine eontenue en la septième question des présentes conclusions, si elle avait été décrétée 1
80. S'il se croirait lié, en conscience, par la doctrine contenue en l:i huitième question des présentes conclusions, si elle avait été décrétée?
9o. S'il se croirait lié, en conscience, par la doctrine contenue en la neuvième question des présentes conclusions, si elle avait été décrétée?
lOo. S'il se croirait lié, en conscience, par la doctrine contenue en la dixième question des présentes conclusions, si elle avait été décrétée?
llo. S'il se croirait lié, en conscience, par la doctrine contenue en la onzième question des présentes conclusions, si elle avait été décrétée?
12o. Si dans l'exercise de ses fonctions comme juge il se croirait lié, par sa foi ou profession religieuse, à l'obéissance à la dite autorité romaine?
Et après que le dit honorable juge aura ainsi déclaré, l'Appelante demande humblement que cette honorable cour procédant à adjuger sur la dite récusation, la déclare bien fondée, le tout avec dépens suivant le sort final de cette cause.
Montréal, 1er déc. 1870.
Similar petitions were presented for the recusation of the other Roman Catholic Judges of the Court, C. J. Duval and M. M. Caron and Monk, J. J.
In presenting the petitions, Mr. Doutre, Q.C., counsel for the applicant, said that he hoped the measure he was adopting would not be looked upon as implying want of respect and confidence in the high character of the judges; but, on account of a strong pressure which had been brought to bear upon public opinion in this Province, a great number of persons were in doubt as to whether our Judges are the representatives of the Queen and carry out the spirit of the laws made under her sanction and that of her predecessors, or whether they are not in certain mat ters governed by the religious authority whose seat is at Rome.
Chief Justice Duval here remarked that it was, perhaps, giving too much importance to the imbeciles who think that Judges recognize any authority but that of the Queen and the law enacted under her authority.
Mr. Doutre replied that, unfortunately, these imbeciles were so numerous, and occupied so many positions in life, that until the Judges had themselves defined their stand-point, their decisions would remain in many cases without moral weight, and after due consideration he thought it essential before arguing his case, to know whether the Judges felt themselves competent to hear him and give justice to his client. The condition of the Catholics since the cession of the country has been altered by decrees of new dogmas, some of which, if they are adhered to by Judges, would prevent the Catholic Judges from applying the law of the country. By chap. 83, 14th George 3rd, which confirmed the treaty of cession, the Catholics are granted the free exercise of their religion, but subject to the supremacy of the Sovereign. Several articles of the Syllabus declared it to be a heresy to believe that any Sovereign had authority over the laws decreed in Home, and that in a conflict of jurisdiction in mixed matters, it was another heresy to recognize in Civil Law the power of pronouncing upon such jurisdiction. The right exercised by the appellant, which was fully recognized and practised in France at the time of the cession under the name of "Appeal against Abuses" is especially mentioned in the Syllabus to be proscribed, and it is worthy of anathema to attempt to make use of that recourse. The judge that would receive such an action and pronounce favorably upon it, would be liable to anathema and excommunication. I know very well, said Mr. Doutre, that none of the judges consider themselves bound by anything but the laws of the country; but in the present state of religious exaggeration, my own conviction in that respect is not a guarantee that will be sufficient for my client and the public. I have no doubt that the answer the Judges will give to the facts mentioned in this petition will be such as to put the appellant in a position to withdraw the exception, which she will be happy to be able to do. This opportunity is a precious one, and should not be lost for defining clearly the position of our Catholic Judges in these mixed questions and for putting an end to the injurious doubts which are being thrown on their independence and their true position with regard to the sovereign who appoints them and that other sovereign who claims authority over their consciences, with the right to define their jurisdiction and hurl defiance against the authority of our Queen, our Parliaments and our laws.
The Hon. Chief Justice ordered the Clerk of the Court to take the petitions, but not to fyle or place them in any way on the records of the Court.
At the next sitting of the Court, judgment was pronounced, refusing to permit the petition to be fyled, and treating the
Vol. I. I No. 1.
charges contained in them as accusations of treason and perjury against the judges recused.
Badgley, J., observed that he sat in this case in a very singular and embarassing position. He was the only judge who was not recused. The petition that had been presented to this Court was a petition to the Court of Queen's Bench, and the petition was presented to the Court as it sat on the 2nd December, when the Bench was composed of only four judges. Judge Drummond being absent, and His Honor understood that the Hon. Judge had expressed his intention not to participate in this proceeding. He, Mr. Justice Badgley, regretted very much that the Bench was not complete, because it was of great importance that all the judges should be present when a matter of this grave nature came before it. He had suggested to Mr. Doutre to present the petitions again before the full Bench as a simple matter of expediency and justice, and without having any ulterior object in view. His suggestions had not been adopted, and the consequence was that this petition was in the hands of three judges who were present, and one who was not present. As he himself had not been recused, his colleagues had given him the opportunity of opening the judgment. The petition was presented to the Court of Queen's Bench, and that Court was called upon to take notice and be informed that the petition recuses four judges of the Court. The petition stated a great many grounds, more or less connected with ecclesiastical affairs, hut the principal charge was that certain pro'ceedings had been adopted by the head of the Roman Catholic Church at Rome, and that those proceedings had had the effect of destroying the authority of the Government and civic power in certain cases. The Act of Elizabeth, known as the Supremacy Act, had been referred ■ to, and it had been stated that that Act which governs this Province had been set aside, and the power of the British Government also set aside by certain proceedings that had been adopted at Borne. Whether these were abstract theories or not, His Honor would not inquire; it was a matter with which he had nothing to do. The law, the constitution and the Sovereign of the country were what the judges had to regard, and when His Honor tound that in this petition the substance of it was to accuse the judges, in the first instance of treason, and in the second instance of perjury, His Honor was of opinion that the petition was not worthy of serious consideration at all. The Court had nothing to do with ecclesiastical law, it had to look to our own jurisprudence, and to see that the administration of justice could not be carried on with restrictions of this kind before the Court. The charges in the petition might be summed up under two heads, first, they accused his colleagues of treason, in" asmuch as it was pretended that by reason of these proceedings in Home, they would be unable to do their duty, and that they must cast off their allegiance to the Queen. This was treason to all intents and purposes, and it was too much to suppose that judges would lie under
such accusations. The second point was the charge that the judges would commit perjury, and violate their oath of office on account of those proceedings in Rome. The judges had taken an oath to administer according to law and justice, and yet they were told in this petition that they could not act according to law and justice, because certain proceedings hitd been adopted in a foreign land. It was too much to suppose that a paper which contained such charges could be admitted to the fyles of this Court. His Honor referred to a judgment at Quebec, Canada Assurance Co. vs. Freeman, in which it was held by the Judge that a paper containing charges of this nature, was not admissible to be fyled in a Court of justice. Judges Stuart and Panet expressed their opinions in that case in this sense, that the judges had but to look at the petition to see that it was inadmissible, and when judges of the highest learning, like Judges Stuart and Panet, were of this opinion, his Honor believed there could be no question at all that a petition, containing charges of this nature, was not admissible, and should not be put upon the fyles of the Court.
Decmmoxd, J., observed that he was absent when the petition recusing four judges was presented to the Court. He had felt great indignation on reading the petition, because he regarded the charge contained in it as insulting to the Bench. He differed from his colleagues in thinking that permission of the Court was necessary in order that the petition might be fyled, and believed that by our Code they might be fyled as a matter of course. His Honor then proceeded to read some notes prepared by him while under the impression that the petitions had been fyled. His Honor said: Our law on recusations was to be found entire in the Code of Civil Procedure of Lower Canada, Nos. 175-191, inclusive. The causes of recusation recognized by the Code No. 176, are seven in number. The 7th is as follows :— "Ii he (the judge) has any interest in favouring either of the parties." The following article (177) explains what is meant by the word "interest." "A judge is disqualified if he is interested in the suit either personally or on account of his wife, or if his wife, when separated from him as to property, is interested in the suit."
The question then arises whether these are all the cases in which recusation can be proposed. To facilitate the solution of this important question, it is necessary to observe that the legislation of our Code of Civil Procedure, as well as that of the French Code, are derived from the Ordonnance of 1667, from which they differ little as to the special causes of recusation. But both Codes had ommitted two of the reasons contained in the Ordonnance, and this for wise reasons of equity and justice and public order. The part omitted was that of permitting recusation to be proposed for other reasons of fact or law. Carre and Chauveau, in stating their opinion that other causes of recusation cannot be admitted than those enumerated in the French Code, support it by a great number of authorities. His Honor referred &t some length to the authorities there cited, and came to the conclu