LETTERS TO THE EDITOR.
THE GREAT POINTS IN THE GITIBORD CASE.
[TO 77D1 EDITOR OF THE "SPECTATOR."]
Sur,—Some points in this case are most interesting, not only in themselves, but as bearing on the general European question which is being worked out before our eyes.
1. You have rejected Mr. Shee's idea that this question is only raised because of the quasi-established position of the Roman Catholic Church in Canada. But in doing so you are absolutely supported by the Privy Council judgment itself, which notices this as one of the grounds on which the appellants had put their case, but notices it only to put it aside. The appel comme &tabus,. to which the parties had desired to assimilate this case, was once competent in France, and perhaps in Canada, against the Church when established ; but the Privy Council holds that since 1762 the Roman Catholic Church there "has undoubtedly wanted some of the characteristics of an established Church ;" they express great doubts as to the competency of the appellatio tan- quam ab abusu in the Canadian Courts in any case, and they finally point out that this is an application of quite another kind, and is not directed against the "proper ecclesiastical authorities."' On these grounds they expressly consider the Roman Catholic Church of Lower Canada in this case only as a "private and voluntary religions society, resting only on a consensual basis."
2. But this makes the question not less interesting, but more. Nations may disestablish the Church, but they cannot drive it out of existence. It is perfectly certain that the case might occur at any moment in this or any country where the Roman Catholic Church is merely tolerated. And unfortunately the proceedings hitherto have not indicated any grasp of the principle you suggest, —the only one which can extricate us.
The question at present is only about Guibord's burial in certain ground. But that was not the question which had been raised. The petition to the Canadian Court was that the "Cure and Marguilliers " of Montreal should "bury, or cause him to be buried, in the Roman Catholic cemetery, conformably to custom and to law." Most certainly this looked like a demand for the ecclesiastical ceremony or sacrament of burial, and so I read the proceedings in the Canadian Courts. It was resisted there, on the ground that the demand was of that nature, or at least was fatally ambiguous. One cannot wonder that a demand of this sort should have raised keen feelings among religionists. And how has it been dealt with by the Privy Council? That Court has, proprio motu, and in the exercise of an authority which surely requires to be exercised very cautiously, changed, or as lawyers say, "moulded" the prayer of the petition into something different ; and what they have ordered the defendants to do is this,—" To prepare, or permit to be pre- pared," a grave in that part of the cemetery in which the remains of Roman Catholics who receive ecclesiastical burial are usually interred, and to bury there, "or permit to be buried there," the remains of Joseph Guibord.
It is so far well that our Court has by this means avoided the chief difficulty in the original case. No doubt they reserve their opinion on the question whether they "would or would not have had power to order the interment of Guibord to be accompanied by the usual religious rites ;" and they give the whole expenses of the present case against the defendants, whose resistance to the petition in its original form had been sustained by the Canadian Court. But in the meantime, there is no question but that of interment,—of earth to earth ; and whether our Court, in deciding this civil question, has rightly adjusted the burden of proof or not (a matter on which foreign lawyers seem to have some doubts), the authority of the civil law must be maintained on a point clearly within its competency.
3. But the great importance of the case is that it drives us to a distinction. The Roman Catholic Church claims mere interment —mere possession of ground which has been consecrated—as an ecclesiastical matter, and a thing in which the Civil Courts must yield not to evidence, but to ecclesiastical authority. The English Courts, on the other hand, are urged not merely to settle this question of interment, but to extend their jurisdiction over proper ecclesiastical acts and ceremonies, so as to enforce them, wherever that shall be called for as just. There is here on both sides a ruinous confusion, and I have found what I take to be the true distinction, in a review of this Guibord case, in March last, in the Scotch Journal of Jurisprudence, which says :—" With us, mere burial in a particular place, however sacred in sentiment or reli- gion, would be held a purely temporal matter, our law in this following the Presbyterian and general Protestant idea of the
North of Europe. The strongest advocates of the Kirk's freedom in Scotland hold that the Civil Courts are not only entitled, but bound, to decide the question of mere interment in any particular place, on being applied to by any one having interest, and to en- force their decision, while they would certainly also maintain the right of Roman Catholic and Episcopal clergymen to be free from the orders of any civil Court to perform at such interment the offices of their Church."
It is natural that points of this sort ehould be earlier cleared up in Scotland, for two, at least, of the rents in the Established Kirk—that caused by Gillespie in 1733, and by the Free Church in 1843—happened precisely upon this point,—the refusal to yield active obedience in performing the ecclesiastical function, by clerics who were quite willing to let the law take its course in regulating the accompanying civil concerns. But the same dis- tinction has been abundantly settled in the law of America, and some such distinction must be held by all who are not willing to bow to mere absolutism,—that of the Church on the one hand, or the State on the other.
4. It may be said that the question which this abandons to the civil law—that of interring or not interring the dust of one dear to us in consecrated ground—is itself one fitted to excite the keenest feelings and the liveliest resentments. So it is, but while that lays on the Courts of Law the obligation to do justice in this region with scrupulous and delicate care, knowing that the result to be decided by them turns upon considerations with which they are not too familiar, it seems to me to add strength to the con- sideration already enforced. Such questions in our Courts are always difficult, even when legitimate ; ergo, let our Courts not complicate them by internal Church regulation, in attempting which they go beyond their province, and are likely to go wrong. Keen feeling will always be excited in such matters, even by a decision which confines itself to the secular side. It is true, but that is a reason for so confining ourselves, not for going farther, and deservedly faring worse.—I am, Sir, &c., X.
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