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Les cartes, planches, tableaux, etc., peuvent dtre fifmds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est filmd d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants itiustrent la mdthode. D 32 X 1 2 3 1 2 3 4 5 6 THE GUIBORD CASE. '^iH/jL . ^■^"'-^-'^^ S JUDGMEISTTS ^ 1» THE COURT OF APPEAL IX THE GUJBORD CASE. (From tlic Gazette, Montreal.) SEPTEVfBER Tin, 18V1. PniSENT: — Chief Justice Duval, and Justices Cauon, DiiCMMOND, Badglev ..lid Monk. Monk, J — I regret exfremeiy tlmt I nni unabli; entirely to concur iti tiie jiulKmeiii about to bo rendered by the Court in this important case. After very careful eonsiaer- utlon, 1 have come to the conclusion that the judgment of the Court of Ileview must be oonflrmed, but for reasons uiffering in some essential points from thosti asi-i:,'ni d by ibe Court below, and concurred in, if I am not mistaken, by this tribunal, or at least, by a mtjorily of my honourable and learmd c( 1- Icagues. It is due, however, to the parti.s that I should stiite, as succineily as possible, my reasons both for differing from lliis Court as to Wi*: considerants of the judgment, and for my concurring with the decision of the Court below upon the merits of the case. The cause is one of considerable impor- tance, not only by reason of the iiartieuliir circumstances to which it relates — not alone in regard to the parties themselves, but also in 80 far as the decision of it may bear upon, or tend to influence the decision of causes of a similarorananalogouscharacter in the future. Both as to law and fact, the case lias under- gone a remarkably able discussion on both i sides before the Courts below. Most elabo-i rate and learned decisions have also been | rendered, not only on the questions of forni,[ but also upon the merits. I hope, howevi r, | it may not be considered irregular to remaik.l that these judgments of the Superior Court do not come up for revision by this tribunal, (sustained by the lorce and significance of con- current opinions on interesting quesfions of law and procedure. One judge was in favor of the Appellants both on the form and upon the merits. Two decided for the respond- ents, not only in regard to the mode of pro- ceeding which they regardea as defective, but also on the merits ; and a fourth judge, considering the defects of form fatal to the the appellant's pretensions, gave no opinion on the merits. I regret to say that this di- versity of opinion is in some degree, though. not to the same extent, apparent in the do- i ision about to be rendered by this Court. I have no he sitation in saying, (hat s- far as I am coneeruel, I have found all this, though inevitable and peihiips in some measure not to be rigrettfd, r.-itlier embarrassing, enter- taining as I (In much nspi'ct for the karning, jiidieial experience and abilities, not only of my honorable col leagues, but also of the judges ot the Court below, this divergence, I may say antagonism ofo|iinion, convinces me, that the (a.se is not without difficulty ; and con- sidering the iuiportaneo of the principles of law involved, I have been fully imjjressed with a sense of the obligation re»ting on me as a member of this Court, of bestowing upon thi.i, us it is my duty to do so on all other c ses, a (an ful, anxious and impartial consideration, without any fear or any influence from any quarter, operating on my decision, and with the view e.\elusi'-ely toa faithful performance of my duty as a sworn administrator of the law. This remark may, indeed, be considered a.;w the case, the judgment of this Court ■hoiild bu based. The first question to be considered, in the order in wiiith they are snbmitted to this Court, regards the form of the writ. The proceeding was commenced by a requee libeUee and writ of summons and not by a writ of mandamus properly and technically so called. '1 his it is contended by the respond- ent ii irregular and defective. By the article of the Code it is argued the wi it calling upen the parties should be a writ of a mandamvt By tome of the members of this Cotirt this deviation from the requirements of the law is regarded as a fatal defect. The law not exprehsly enacting, not providing that the proceeding may be commenced by a writ ot fcummons simply, but declares that it should be by a writ of mandamut, properly so called, and, no doubt, strictly spiaking," the mode adopted in regard to the writ summoning the parties to appear, is not in prec ise and rigid confoimity to the letter and Innguagt of the law. Reading the law as a gram- marian, a philologist, or a man of letters, no doubt this must be re- garded as an irregularity ; but is it fatal ? Is the law so restrictive ml peremptory that it must bo a writ of mandamm a peine de nullile, particularly when a mere writ of summons, with a peli inn attached tf it, setting forth all the reasons for the de- mand, and with most ample and exact conclu- Bions, will to every intent whatever, answer the same purpose? I think not, and I am decidedly of opinion that this exception to the mere form of the writ does not possess the serious importance ascribed to it by the respondents. I am strongly inclined, tinder the circumstances of this case, to ov( r'ook this informality, and not to regard this pro- ceeding as an absolute nullity. Of course, I am well aware of the extreme danger of dis- regarding what may be considered as even mere forms, and of departing incru iouely from what seems to be pointed out as the proper < ourse by the intent and lairtrnage of the law, more particularly when the Code seems to provide a special mode of p'neeed. ing in seeking remedies of an extren ely dif- ficirlt an J technical character. Delicate, illusory, and complicated as the procedure is, in seeking these remedies, even, at the best, and under the simplest formsi the technicalities insisted on by the res- pondents, oiily render them more so ; and ni though these captious and bewildering for- malities may be insisted on in England, it does not seem to nie a good reason why we should be enslaved and distracted by them here. When a complete and detailed aver- meat of tho complaint is served upon the party complained of, with the writ, ft docs appear to mo that iissulng two writs of mandamus, one ordering the thing to be done before the party is heard, and another after ho has been heard and the case adjiidieated upon, and the least deviation the one from the other vitiating the whole proceeding', is about as puerile and deceptive a mode of seeking a remedy and vindicating a man's rights as the legal mind hirs ever yet in- vented in these matters. That as it miiy, such intricacies and complications are oi>. viously unnecessary before our Courts ; and it may bo said, I think with perfect truth, that the issuing a mandamus afia\n>t a man or a public body in the first instance and with- out hearing him does not entirely or in any way liarmoni;!e with our usual pocedureanil more particularly is this the faet in regard to writs of prerogative generally, where the writ of summons and the petition duly servid upon the party is all that is necesi^ary, and I miiy add that there is no good reason or ITaetical utility in the course iriESted upon by the respondents. But it is said the law is so. Yet it may be argued with equal force that the article of the Code is ambiguous, not so much so in the particular Article 1022, sec. 4, per te, as in the whole Article, and jrarticularly by the last paragraph. The writ is not styled a writ of Mandamus, as in every case where a writ of Mandamus may issue in England ordering defendant to perform a certain act or duty, or to give his reasons to the contrary on a particrdar day. As before stated, it is not talbd a writ of Mamlamut, nor is the English practice or rules applied to such proceeding, made appliiable here. In England the defendant showa cause on the writ, and here on the writ of summons and petition together. In both cases it is a proceeding calling upon the defendant to show cause, no more and no less. If it bo contended that the law is not ambiguous, yet it may be urged with equal truth that it is not peremptory, and ex- elusive of the mode adopted here in express terms. Where the object of the law is clearly attained, by means not prohibited by tne law — where no party is irrjured and every ground of defence may be fully and practically urged — it will require something very pre- cise and peremptory in the law to induce me to declare a mere proceeding null as to form. But there is somethiirg more to be .said on this point. The appellants have fol- lowed the mode of procedure which has been heretofore, in almost every decided case, generally adopted under our Statute and under the Code There is, I believe, only one reported excpption to this form of pro- cedure, and the old maxim, so often cited, may be invoked here, that is Cursus Curite, le- gfrnfnrtl, vnp.y he applied. In .iny case, par- ties should not be defeated in the pursuit of remedies guaranteed by low, and deprived of their rights unless their course is in clear violation of a precise and per- emptory provision of law, more espe- cially when such a coturse has heretofore * » f ; i « , f >. h.uiervances sanctioned and practised bv the Church — in plain French conformement aux usa:/es — in other words unconditional burial ill the Catholic cemetery of the parish to which the dect ased belonged at the time of liis death, and I can easily comprehend that t'le words C'lvformemenl a la loi may mean that in addition to the mere act of interment whether civil or ecclesiastical, all the re- quirements of the civil law 8h(mld be strict- ly ob.served. The appellant seeks to obtain for the burial of her deceased husband's re- mains, the observance of all the customary forms and solemnities of Christian inter- ment. If the words mean anything they m .an thi:^, p.r,:\ slso tli:tt rM the t-xigcnri! ■? of the civil law should be rigidly enforced in the registration of his death and burial. All this might have been set forth in terms more am|)le and in language more explicit, but it Seems to me that this was not necessary. I am, therefore, of opinion that this objectioo is not well founded. In any view of ilia matter, I should not be disposed to rest my decision of a case so urgent and so important upon such a Jin de twn proeeJer. I come now to the tiiird exception in ro- lation to the form according to the order in which I am disposed to ngaid these oljic tlons, and that is that for the pui poses of iliiii di'inand, not only the <^Ciire et Muriui/liert d« l'(Eiiiire et fabrique de la I'aroiue de Mow treul," but also the Riv Mei-sire Rous- selot, the Cure of the parish, should have been included in the writ of summons. This, properly speaking, is a plea of nori' Joinder and not an exception a lajorme. lint in whatever light wo may be iiii lined to con- sider this objection of the respondiiits, the fust enquiry to bo made is whether as a matter of law, and in the course of nuular proceeding, the Rev. Mr. Rousselot could be, in his individual name and capacity, intro- duced into this proceeding along with the respondents? Manifestly, according to Eng- libh piactice, and according to the objects and the exigencies of the proceeding, he could not. This would have been a mis- joinder obviously fatal In the very tirst stage of the appellant's proceeding. Two separate liodies, or two distinct persons with separate functions and separate duties, cannot be in- cluded and proceeded against by one and the same writ of mandamw. This is elementary, and will, I presume, admit of no controversy. So as a matter of law and regular procedure, the only means of introducing Mr. Rousselot into this record was by impleading him, as he has been cited to appear. In his indivi- dual name and in his spiritu inpacity, he cannot be joined with the re. ..: tents, und could not bo impleaded before th s Court in conjunction with them in a proceeding like the present — and further, as a matter of fact, hu IS before the Court, but only as a part of the Corporation, and as a further and more Important matter of fact, Mr. Rousselot, being as the head of the Fabrique in the re- cord, has himself individually, or in coiijuuc. tion with the respondents, pleaded directly to the merits of the appellant's demand. It is true that this plea is produced and filed under reserve, but I think he has unadvisedly raised an issue upon the merits,which we muist dispose of. Thespiiitual power of the Church is invoked by him — his ecclesiastical authori- ty is appealed to — his action as Cure of the Parish of Montreal is defended and justified. He has set up, or there has been set up for him in conjunction with the corporation to which he belongs, what he or they or both regard as a triumphant, a conclusive fin de nan recevoir to this action. We are told that he is not in the record in his individual his spiritual — his personal quality — but he is before us in the capacity of heau of iho corporation, and being here he defends his individual, civil and spiritual action in this matter, and he calls upon the Court to justify him in what he has done. Ue says we can- not go to the merits, yet in so far as tbib de- mand relates to him individually as Cure, he tu£TLt '^^rZtnrZ ZTt^u'Tri "^"""."^ "''''" ♦'^ "" incnlcMlon^If. diictasCmu l.u jiistilkil, nnri mv nc tion ns tho kecptr of tliu Ui-niHtorH also ji'iHtituMl " In oriltTtlmttlii-re rnny lui noniistiiUi', I.t m hl-v ■what liu dill pluad, or what was pkadid for him and with IiIh wiiiction hv the resiioruK-ntN (HiH Honour hcru cited the pica, HtttiiiK tip niiiong other llijnj,'.s thu Bishop's order) IhiM obviously U a plea on behalf and in vindication of M. Iloiisnelot, not in his ra- paeityof head of thu Corporation, but in his quality of Curd. Und. r thu peculiar circum- btancesof this case, I think ho had the ri^ht to take this course. Ho has done so; and I am of opinion that it is tlio duly of this f!(Mirt to give hira a formal and decisi\'e adjii- dication upon the merits of his dofonce, ir- respective of all exco|itions as to mere form which he has himself, though informally, vet practically waived ; and I feel sati-lied, tllat seeing the issues raise-i, it would be more KHtist.ictory to both parties, more in the iii- teiests of justice, tiiat a judj;ment should bo try has never directly controlled Ihi^spiritnal mtion and decrees of the Chunh in Canada. I'or example, an order, by a liishop, refusing ecclesla^tl(al interment to the remains of a deceased iloinan Catholic for spiritual rea- sons assijjned, is an instance of that charac- ter, and could not be, I apprehend, supei- seded or set a>ido by any Civil Tribunal in tnis I'lovince, not at least without the Bishop beiiiK in the rec(U(l, which is not the case in this instance. In purely spiritual matteii* the course, therefore, as I view the case is easy enouKh. We know where we are, and we can, I apprehend, have no diilicully in de- termining what wo have to do— but that IS not simply the question. Interment in the Roman Catholic Cemetery con/ormc merit aux usages Hit la loi, is an act partaking pai tly of Kcclesiasiical and partly of Civil function. The real difticulty wo have to contend with is to determine what ore the l)urely si)iritual and what are the purely r^;;:;;'[[il;ubSo.?':vi;rr'''"^''^''^''M^*^'''^ wa>s,tliatitcanbodonowilhoutany violation which areofa mi.xed character Forexam of law or transgressing any clear rule of pro- pi o it may be said that tl rfurnishh"r .if thi rl^"'' ni J '""!,• '""\*,'"'%^"^'" '^"''' ^ ^'"'"^ it Kro«nd_in fact the grave i7the cem te I can. Disre«a.d.ng,therefore,the8cobjections .he supplying of Remitters in wllh the S,' Of form as insiiBiciont in themselves, undei the circumstances of this case, to defeat the nppel lam's pretensions, I como now to what I regard ns tho merits of this highly im- l)ort4int cause. Before entering upon this part of the case however, and iii anticipation of tho remarks and burial aro to be recorded are purely civil acts. These aro tho duties of the Fabrique and these aro required of them. The regis- tration of tho burial is also a purely civil act and is required of tho Cure in his capacity of I'arish Priest. The division of the cemetery into twopartsaiid the consecration of the ono in the J a^^^^ i ""' "^'^■''"'; >"'' "f"'^-"' ^^-tined to ecclesiastical burial are nto the g.eat hi..,to r.cal questions in relation acts performed or to bo performed by the soiri- toGallicauism and I Itra.uontanism, and into tual power alone. It is by it and unde? ts he variety an.l conflict of views which this autlmrity these acts are V.^r?ormt"l and t 3no''t'ntrTl '"" CImrch involves Idoes not appear to me that' th^dtil'iKwe I shall not cuter. Ihese controversies and tho Fabriquo in other words, has any direct^ these di.seussions cannot touch or diminish tho ancient and recognized power or the epiritiial authority of the Church. Dos|)ito all tho revolutionary violence and iier- secutions by which sho has been as- sailed, tho Fpiritual authority remains and ha- rem.'iiued throuf;h centuries un- diminished, and is as essential now to tho moral weltaro of those who belong to the Catholic faith as it was in tho beginning— and I am not going too far ia stating that every ing or controlling authoiity here. Tho de- cision of tho question also as to whoso re- mains are entitled to ecclesiastical and ns to those who may receive only civil interment, must ns I apprehend, rest with the spiritual authorities exclusively, but the inattriai act of burial, civil interment per se, is more of a civil than a religious pro- ceeding, and as such may be said to be under the controlof the Civil Tribunals of the coun- try. Combining all these acts together, aud i Tlewlnar tb«m anajlfcoleandlniicparftblo, we have, no doubt, ylm m a nerli-nof proceed ^f it • ( I Jngi whiclrtp,„.rtain partly to tho npiritiiiil and partly to civil authority. D„t in apply- «ng a rumi'dyby a writ ot mmdamu,, ami forcing what in Itnown aH specific perfornmncc we niiiHt r.'Kttrd th.so and appreciate tboni •epcratcly, moro particularly when they a.e t<. be perfornifd by Hepnrateand cliHtinct agentH Wo are cHlltd iij)()n to order eaclia>;ent, IhxIv or pernon separately to do that which he ban refiiHed todoand wljat the law compeln him to perform : and that in tlie individual-personal capacity in which tho law has couHtitiited him a public functionary, no furtlier, no more and no lew. In proc«e.linK's like the present tho utmost caution and precision are neces- «nry and the direct and oxduhiveapplicatl'.n of the remedy to tho proper party and to the real subject of complaint is absolutely es- Bearing these principles in mind, let us examine what bearing they have upon, and CMO ^ *''" ^'■■*^''*''"» «^ the i.resent Congidering.asTdo.that Mr. Ronm'lot has pleaded to this action, and that he has alleg, d and put in jhhuu „8 a niatter of fact, that he refused ecclesiastical burial to the remains Of tlio late Joseph Ouibord in obedience to ^L^ \\x ^'■""' I''" "'"''"P "f <'»« Oiocese, that it is valid, andjustifies his refusal to give rehmous interment, I must first in- qmre whether wo can supersede this order, assuming it to bo proved, whe- ther we can or cannot, as a civil tiibunal, pass judgment on its validity or compel Mr. Rousselot to disobey it This it seems to me, is the chiet point, the main difficulty m this ease. It is here that the ppiiitual power of the church and tl- ;i law of tho land arc brought face to far ,a>id thus confronting each other over the mortal remains ot the late Joseph Guibord, we are a led upon to decide which of these two authorities has the ri«ht to determine where and how these remains are to be interred I must be conceded that this is a difficult and a delicate position. But my embarrass- ment is greatly increased by the necessity •W wh ♦^■^^^"'' ^^-^^'^"^ first determln^ ng whether I have any right to pass hny such judgment in the matter or to give any decree which will determine the contest. nXs appear to me, however, that these diflSculties are not insurmountable. According to the view which I take of this d^m.I.IM "°'r.*=^^^''"-y for «n« to describe the difflculties which existed between tho Imii. nLh JZ """^ "/' Lordship, the Catholic Bishop of Montreal. It is always painful to witness the existence of such controversies, —such instances of antaconism in th"rh"rch But we muRt not forget that the Bi8hop"had biUtv r t IT' *" P"':*"'"-* grave responsi- bility rested upon him. I can easily inder- u«« „ 7j embarra.s8ing the position ardent and cultivated minds ; he thought thff wero wronff In tho attitudfl they had HMumed as a llt.rary and scientific body, and that their course was pernicious to the moral welfare of thomselveH and others; and in the conscientious discharge of his pastoral duties, he wished to bring th.m as { tlholirs and children of the churc h into a sat.r road After the submission of the JnaliiiU perliaps a wise forbearance and iiiili< ioiis admonition on his Lordship's part mi^ht have resulted m harmony and reconciliation. I know not If this would have be.^n the case, but tbesa deplorable dllHculties went on and ciilminat- Id in tho ord.r pleaded by Mr. Uoiisselot in this case. riuil)ord came under ecclesiastical censures, and became a victim to his own obstinate perseverance In a course con- demned by the Bisliop. Now, I am not dis- posed to enter into the impo^tjint (luesilon wliether ho was or was not, at the time of tho oriler frcm Monseigneur Truteau, under can- onical censures of a formal character, or to ft degree so serious, so unequivocal, that he wai I ii.stly refused ecclesiastical burial. Nor am I inclined to oifcr any opinion upon tho |)oint whether, at the time of his d, ath, ho was or was not, as a mem her of the fnsiiiu/, formally and regularly excommunicated. lam clearly of opinion that silting here as a civil tribuna!, administering the civil law of the land, I have not tne riglit to give any de- cision on these questions, whicli belong ex- clusively to tho spiritual power. Hud I such a righf, and were I forced to adjiidicale on these points, I have no hesitation in say. ing that I should bo extremely embnrrassed in this instance. For the present I will not suppose a case of an abuse of the spiritual power so obvious, so outrageous, that the civil law is or would bo bound to int. rpose Its authority. It is quite within the boiuids of possibility that such a case might arise but this is not one of them. I may' jiowevc,, venture to remark, and it 18 plain that the observation embodies no more than a truism, obviously nothing more than what is reasonable, and it is this, that it is impossible to conceive a case in which the greatest care, the most deliberate and scrupulous caution, are more necessary than in proceedings cutting a man off— rejecting a Catholic from the rights and communion of his Church. To every Christian it is an extremely serious matter • and for the best of reasons, in view both of this life and the next, tho spiritual power should so act as to leave no doubt whatever in any reasonable mind as to the forn at and strict regularity aud justice of its proceedinL's from beginning to end. The facts estab- lished by the evidence adduced in this cause do not warrant me in saying that this baa not been the case here, and hence I am bonn-l to |,'resumo that th»' proceedings of the Bishop in this instance were in strict conff'iniUy to justice and the rules of the Chuich. It must be liorne in mind that the poweip . f the Church in spiritual matters are exceedingly great— are, in fact, supreme— and as we Eouian Catholics view her object •nd rtid on cnrih, nnd licr rtivlne orfgin it h j.r..|»rH,„t lli.y«h..Ml.ll,«H... Th.- I„«h f.., i«r K..vii„„„,.t, ..ii.l ihuriili-* of lur inon.l tllm .,. I,,.. „ri, ,,r,..|.o «,„! ,„ r.-mpt..,, v»-\n „f oIk.II. n.,' ,„m,' Mll.||,|,fl,,|, ,,f| tlu- pi.lt ..f IhoHU wild I). I, I,, t" ll> I lOlhllllllll.ill Ih (,f ||,„ ,„„Ht ,nj,r^,,| ,„|„ I'lh.l.i.K ilmimt.i'. Iliitifin.icl. In i xi... hV fMiiii III., (Hii|,(„|_|c i„ ,|„,|, „^„ I'j^.^i^^, li.tu.hiH niikli Ih i.qMl...l_Killl mom !► iX|Ktt.(l tiorii lliu Cliiinli iUilf Jf k)„ B.li.i.tiU|i,H ..nd tnniiMHinl-, R|,„ in nl^o our Ji.N.l.iM. t.i:. li •, MI..I ^ii„|,.; uMlanv iiiiHiHk. j.r (.ii.i.^i,,!, \.y „uc „t i,.r i„l„|^,;,,.H „.„„|,, l.u l..imi,i.,|,|c III il.u ,Mri„„., nn.l nilul.i Icml to 11,.. „„,«i (l.,,i,„Hl,lo t„nMqn.nc.« 1 111 XI' ofKilllH,,. HlfollViollstMlllH • hut lllCV mv auvut.dtd litiv iiK iiidliH l,jf ihu y.iy pr.iit lM.)M.iiai„c of t|,JH nmll.i, hikI mIko to liiliiimtc i|„a If wv poHM>Hi..l tliB powir we Houl.lln<,k CJOH.Iy into (Impiom.liu^R of tli» itilihiMhlinil iilillioiiti.M in thlH tanc l)uf, HH Uloic hiui.,1, 1 tliiiiit it JH njnni. fl^t lint \\o liiivu no kikIi p.iwir It IH quiut iMii! (|,„t in8ti,nc.ii nio citr.l vli.ii; Ilk! Civil ConiiM in Fianro did iiiiiil. ic! and did ndjndiiHtf In hui li maf- t.iM «li.n t.nu.it.d «itl, ilic iHifoimuntv <.f .iv.l (Iiiiun; ii„y «,iit V. IV far and win- niidr |Kci;liiii- li.llu.n(.H, wliiUt the orjrHni titioii and III,. i.iii|,o».iii,,n of tli.ir iliVli Coiiru », r. liop's \^\^^. mdinjix in i.giird to Giiibord and tlie )n«ti. tut CHiiiidi.n, and Kuppomi I lamn to the coii.li'sioii tliat ilitiu.xlHt. d no fcclfM-iiK- fiail ciiiMiivH of a regular kind— tliat he whm not txconinitiniiat.d— ihut he wuh not l.y the lu«« 01 tliu Cl.iiiih (xcludid from the J>rivilcneKofL•lt•ll•siH^lilul Imrial — imdthatMr Rmii"..., l<.tont;lit toliavfgiv.n to his nniainH' rilinioiis int.imi'iit wiihoiit nf.n-iinr to the iJihliop at iilj—iind it l.aH been said that thJH IS the p 0.1, r view to take of thi« whole mat- t, I— . v.n BO, (an we give a jud.iment tIeLlaniiK the attion of Mr. UousseL.t wiong in iifiiiiiig the matter to hin ecelehiiistital superior, and ^et ahlde the BiKhopV order declaring it null ? And if we had that right can we do ko in thiH instante the hi^^liop not lieing in the lase? Clearly not. 'I lien, is' the Older riuht or wrong? Mr. RoiisHe'lot had tho right to refer the matter to the' Bijbop, and Laving rettivtd this order he is ' (ind WM bound to obcjr. Cotjid •ny Court I'" Franco, .t any time, cull In quuMlon the I "« of any m l,.|.i«Htl(al fumtloimiy in I prtiial mattir« without thu parly whoHu I 7«H w.re tomplHlne— implicit and absolute obedi. nc. — it Mims to mu that pimtitally there can be no wav, ring or evasion lieru. A man must be iilheroni' thing or thu oiheror nothing— in any ciiKe he niiist settle these qutstions with hiH own consci.nco and with thu Church. I he civil tribunals of the country can give him no relief. VVe cannot touch the Ilishop's «"der. But apart from all these qiieMJonn. Ii t UK suppose that Mr. Rousselot had not apl pliid to the Bi^hop, and had received no in- inncthm to ledise to Guibord's n mains, c- cleMastical burial— and let us assume iliat whin requind to inter the n mains of Qui- I'ord, he had of his own authority refii.-td to give them icchsiastiial Intel no nt, assigning what he considend valid reasons of a spirt- tiial chnra. ter for his refusal, could we lom- pel Mr Uousselot, as a pii. st.und against his eonscienee, fodoso? Could we force him or any minister of the Christian religion of any denomination to appiar dressed after a particular fashion suiiablu to theoc of the appellant must be overruled [All this reasoning, it may be said, rests upon pretty obvious prineiphs. No d.,ubt smJi is the case, and I do not suppose that these doctrines per « will be very seriously or vii y strenuously disputid by the ajppellant But there still remain points of no little difH- c'liy m the application of these principles. Thu appellant, if I understand her de- mand rightly, asks that thu remains of her j ttie hiishand, he having died a Roman Catho- I lie, be interied in the Roman Catholic ceme- 'ti ry ateordiiig to the law of the land and the Ushges of the Ciiiiicli. She does not iu ex- press terras require any particular foim of interment, nor the observance of any parti- cular ceremonies at tho funeral But aa a matter of fact it would appear that » 1. / If «Trn civil hnrlr»I fn grnnl. (I, h\i<- woiijil |„. in /i ^rtat niiftmin taliNllnl I , „||,., t iIiIm friptit llii- Hpp. IliintV caM(— It Utile (oiulilidii atlmtiKl to tin- offer of ;al. Now is it tlie Falirique aM H liy Corporation tliatdetermineH who are to bo intetied respectively in thcHedivisions? If HO, wo may perhaps oi • them to give (Jiill)oid civil burial in the v .nsecrated part of theCmiteiy. Hut it is beyond contro veiHV that it is not the Fabii(iue which de- cides this question— it is the Cliurch and the Church alone. It is the ecclesiastical nu- tnoiity of the parish. It is to it cxclii- Bively belongs thu right to regulate this niatter. In thii instance they have done so in thu exercise of a purely Kpir- itual power. It is 1 gal, and the deci- sion is final. From this action of thu eecle- siaslical authority determining u-fiere anil in what flirt of the Cemetery Ouibords re- mains bIiuII be interred, there is no appeal to tuis Court as I undeistHnd the law. The ap pellant has invoktd law and usage in thi- matterof buiial. On these, a decision has been given against her by an authority from whose adjudication there is no appeal to this Court. Wu cannot, therefore, assist her As to furnisliing « place for Guihord's burisl in the cemetery, the registers and the en- registrutionof his burial— in fact civil buiia' it must be remark, d, has not been nfu^.d either by the Fabriijueor Mr.'Uousg. lot. Bui on the contrary, both jiave been offered by them conjointly, with an objectionable condition it is true, that he should be intir- red in that part or division of the cemeteiv Iheoriler required of us. Thu jiulgment of the Court of Hevision must tonsi (jm, ntly b.i coutirmed— hut I would do so l(.i reasot ■ difierent from those asHigned by that Court and the following \n- the mutitu I would as.' sign, but they will not bu accei)ted by this tiibiinal. ^ Considering that the writ issued in th.. lause, at the instance of the appeih nt is not In the Ibrm of a writ of .l/,;/i,/,„„»/ properly so called, but is in the nature of a writ of »ui:;mon«, with a petition calling upon the responilents to show |,y, ., auus le conlrole el aiminimra. liond,3,hf,ni.,,, .., li' (■ rpsdif/eu Joseph Gui. l,ord,conjjrmement uiii iiaaye, el iritual auihority of tho Parish o( Montreal alone has tho right to deter- inino whose remains shall bo interred mthe hrst named division, and who shall b. buried in the second of the above mentioned divisions, and that the division of the said cemetery was known to the appelhnt befor. •he presented her requrie Ubeii^e in this mat- tt-r, and that in th' decision of this case, this Court IS bound to recognize the division o) the aforesaid cemetery, and that it iS the ex- clusive right of the ecclesiastical authori- ties of the parish to order anu regulate all matters connected with the division of the said cemetery as above mentioned, and with the interments to be made in them respec lively ; *^ Considering that the second of the said demands of the appellant, to wit: that the respondents be ordered to imerer »ur lea regitres de I'elat civil par eui lenus le certijicat de telle inhumation du dit Joseph Ouibord aiiasi attx usages et H /a /oi cannot be muintained nrstly bucause the respondents being im- pleaded m their corpoiate capacity, are not the keepers of the registers of reiat civil, nor are they bound, nor have they authority to make any such registration as that demand- ed of them ; and secondly, because such registration was offered to the appellant as a record of civil interment, and wus by her re- fused; ' Assuming the appellant to demand eccle- 10 This Court confirms the judgment of the Court of Revision, but for reasons diflerent irom those assigned by that Court. Badolkt, J —The material facts specially* connected with this contention nre few and simple. The sepulture of the late Joseph Uuibord, which has been the subject of very lengthy and tedious discussion in the Courts "elow, has been brought into this Court for our consideration, and has been submitted not only in tho argumentative facturas re- luired by the practice here, and in the ex- liaiistive oral arguments of Counsel before us, but also in the printed papers of argu- ments and discussions which formed the sta- ple of the case before those Courts from whose ludgraent this appeal has been taken, neces- -titating the laboi.. of examining them all and of becoming acquainted with a variety ot snbjec*! interesting in themselves, and exhibiting the very great research and indus- try t-mployed by the counsel for both the parties in this cause, but with little in them of assistance, and with much of little or no account in settling the judicial opinion sought to be had from this Court upon the contention as it really exists of record The personal subject of this contention, Joseph (juibord, was born of Roman Catholic pa- .. f \ !^?**' ,"'?*' received into the Roman Catholic ZtZZH'X^^^I^.^'^^-^-'. J^-^PtJ- at the Joseph Ouibord ; considering that under the circumstances of this case, this Court, as a civil tribunal, has no power or authority to consider, revise or reverse the orders of the ecclesiastical authority of the parish in a purely spiritual question, su.h as that in- volved in the refusal to give ecclesiastical burial to tho remains of tho late Joseph Gui- bord ; Assuming that the appellant demands civil burial for her late husband's remains this Court has the right to order such civil interment, but has no power or authority to declare in what jiart or in which division such civil interment shall take place; nnd considering that civil! never been Parish of Varennes, in 1800. He in after time settled himself in this city, and was a printer by trade, and in 1828 was married to the appelhmt in the Parish Church ofMon- treal, under the Sacrament of Marriage, and according to the rites and customs observed in the Roman Catholic Church. Thecertifi- cates of his ba|)tism and marriage are tiled of record in the cause. He was for many years and up to his decease a member of a chari- table friendly society, in close connection siastical burial fJr the remains of Tl,,-,'; -.u '''"^"^".'y society, in close connection Joseph Guibord ; considerir ^at" , ,1 Itl.l' L L^f h^?L«^ »'!«. ^''"^^.h. ^-'^ <^^^o a parishioner of the parish of Montreal; dur- ing all his lifetime having professed the Ro- man Catholic faith, and lived and died in that religious rommunity. He was struck with sudden death on the night of the 1 8th or 19th of November, 1869, without timn allowed him to make his peace with God or man, and died, having survived all his chil- dren born of his marriage, and predeceased his wife, the appellant. In 1844 a literary and scientiflc institution was formed in this citv principally by Lower Canadians, and of course' Roman Catholics, under the name of the liistitut Canadien, admission to which was according to the constitution of the society general and inexclusive from difference of burial has never l)een Tpfnsi,.,! ».„»!" i- '■'" T"";- V ""'" ""'" "'"crcuue or on the contrary was offered bv tl^l'™ r''^'?"' !'«'"=( "^ «Pini°n I not long after the dents and by tL clr altt,Sh sl^frv^i °'?''''"." "^•*';' T'""^^^ ''' ^«« incorporated burial was to be n^^^d/ ^t 2 na t of S ^ "T^"."' """"' ^^ "" Act of the thorities of the parish- *'''^"'"'**''^«' ^"- a^e exertions and perseverance of the offi- Bv, mepaijsu, cers and members of tho society, in I t I 11 those pursuits. In a societv so numer- ous and general as that soon became one 18 not surprised to icarn that some of its members were not individually as tol- erant as the niius of its formation jiroft-ssed and in consequence a few of tliem endeavor- ed to exclude from the lilirarv some books and papers which they assumed to consider objectionable, and to force their opinions upon the Institute in general. These do- mestic differences which commenced in 1857 were terminated by the defeat of the object- ing small minority in 1858, when, however the Roman Catholic Bishop of the Diocese' in the quality of protector and guardian of the Roman Catholic teaching and morals in Montreal, intervened in the domestic quarrel in support of the pretensions of the minori- ty, and converted the difference into one o) a more serious chaiacter, bringing the Insti- tute as a body, face to face with I imself. asj their Diocesan. It is true that the Bishop I: ited his pastoral exhortations in the tl.. instance, and his Diocesan censures after-' wards to the Roman Catholic members only but his own astuteness or the shrewdness ol the defeated minority, could not fail to tell him, that the abandonment of the society by the members of his belief, would necessarily be the disruption of the Institute, and effec- tively prevent all literary and scientific in- formation, except that of a denominational character. Without entering into an unin- teresting detail of the incidents of the dis- piite between the Institute and the Bishop which drew its length along for ten years, until the Bishop's final decree in October 18G9 it will be sufficient to mention, that two ap.' parent grounds of complaint have been made prominent against the Institute, the first and original one being its having in its library a few French books which were declared to bt in the Roman Index, thereby under an anti- quated decree of the Holy Inquisition, en- tailing sin upon all who possessed or read such indexed books; and the last and for the time, important one, passing over the former ground, directed against the Annuaire of 18G8, namely.the repoit of proceedings of the society lor that year, which referred to the tolerant principle upon which the society had been originally formed and had prospered for 20 years, and approved and recommended the same, and which was also indexed by the Roman Inquisition. In August, 1859, the Bishop, being then In Rome, transmitted, for publication in his diocese, a pastoral letter in which he announced that the Roman Con- gregation of the index had reprobated the doctrines contJiined in the Report of the Annuaire as imperilling the education ol Christian youth, and directing their with- drawal fiom^ the Institute of Roman Catho- lies, pftrticulariy la Jeunesse, so long as such pernicious doctrines should be taught, and thereupon declaring that every continuing member of the Institute, and every reader and possessor of the Annuaire, without the authority of the Church, would incur the loss of the Sacraments, even when dying, menu d earliele de la mart. With tho view to-remoro this censure, the Roman Catholic members resolved, with the sanction of the Soefetv ir' fZf'f\^'''\ '"''"'^' ''■"•"^■" •'"• ^""^'''nna! tion of the Anwmire, by authoritv at R„me "they submitted to the d-cree purely and' tha the Institute having been f..rme,l solely for I er»ry and sclentilic purpose, bad no 'doc.^r.na teaching, and scrnpuloMHlv e"^ ;^cluded all teaching of perniciou-i doctrine " These were the recoid.d actions of the InxfU tute in general, and of its R„„,Hn C.ilholic members in particular, on the 2,0th of S.^n ember, I860, and yet no one who has fol- owed the proceedings wouUl be surprised to learn that these resolutions were not suffi- cient or sat^^sfactory ; they mny have met tho apparent difhculties of the Institute havinff , indexed books in its lihrary, ami of having I P"l'''«l';-''l the mere A.mmire, but the sub- stantial difficulty of the liishop alt.m.ther passing over these as of but little moment Si i!"f T^?f'""°''*' i"^P"'»"nt character which he finally announced in his letter from Rome, of the 30th of October, 18G9, to tlie V icar General Truteau, and which, that of- hcial says, reached him on the 19th N„v a copy of which he has produced with hi^deno- sition in the cause. In that letter the Bishoo in substance asserts, having reference to the September resolution of the Institute " Qui et ablU enprincipe la tolerance reliqieu.e qui <1 ete la pnncipale caus, de la cnnd'emnalwn de llmutut, and therefore that all should know that absolution should not be given, even 7t'^nV?^:\? *'r" *''°^" "•" '•'■•'"-nee he Institu e." Tou, comprendront gu'Ul n'^ a pa.^d absolution H dinner, pas meme a ^article dela mart aceux qui ne voudraient pas renoncer a. einstuut, .J-c," because the principle ot its organization was religious tolerance. It will be seen that the apparent former grounds for censure have been shifted and replaced by he condemned tolerant character of this literary and scientific Society, but even this only became known generally or at all only whenGu.bord's burial was demanded on the 20th .November. No one would be surprised to learn that the decree resting chiefly upon such a ground of censure when once known became public property and tho text of re- rnarkand criticism. The Roman Catholic clergy of the Diocese could not be found fault with. It was their duty to submit to their Diocesan in ecclesiastical matters, and It only remained for them to csny out the directions of their Bishop; but their submis- sion could not control persons of that faith outside of the ecclesiastical order, and there- fore, the Institute, placed in the midst of a mixed community of different persuasions, where hitherto relijrious int"brn!i"f -v- - ,in known, and where Christian charity i'n its' best sense was generally practised, disregard- ed the Bishop's last announcement, and this ha« been shown in the treatment it has re- ceived in this unfortunate and ill-timed dis- cussion, in which such pretensions are held up as revived expositions of ecclesiastical 12 power in the dark ajfcn which ««..•♦»,«.. i nor c«r.d..or .he .lui^^'^ "^pathJlT he fl„m. hl.es of persnasion owVrd" th^- a.ty bnt m isolafi„„ and despot^Jm den c 1 forget,in, that convictla'^"do" s' ."t'S human .nteII,>,K-e until that inSiKcna hud opened the door for its acceptance h reason, and that Inlief only enters bec„n- reason and intelligence accept it Gu "o says that human thoufrht, h „„" jiC? private morals, and individual oph ons can fore Word !^L!!^^'-ej'?'^ -- obnoxious in thi«| to its i^iciion their jnd^ents at the same moment. 1 he Bishop's letter of the 30lh ofOctohsr Anally closed the controversy between t hi Institute and the Diocesan, and it Tas been withT^e *r , '"^*° , *•'•■«" circum'annr, with some lulness, becaufo such was the position of affairs at' Guibord-s death tht^ »''-™dy observed his death occurred in the night of the 18-19 Nov, 'G9. at wl i h time he was a member of the Ins itutc^ and as such assumed to be obnoxious to alove hne "oT'h'i:';''"^"'-'^^ """ disabilities at tl^e hew fhnf V ■"T':- ^''^•'■' i» nothing to t.Z^.'±^?l':';''J''"^'ly -- -ther known hich is the illegitimate Tr;po;°;!^ro,ooT ^ ,^« ^''^vidually was either k^Ul rce; al which »"ay be summii ,,7in the alftv iV T-''*^"^ by the Bishop in the gene )rds religious intolerance. Tl.isXcLt *i "f, '''« '^'''"^^ *'"">'« niembersl^p in « Bishop is the more obnoxious in , hi ' I to it^Tnfl '!•' ""r''' ^""^ individually liable country, ft British colony open to all n?JrUrr^^^^^^ ^"^ "" ^^ese ecclesLtica «.ons,„ndunderagove,'nm\.,t,°f leKstlcre^ ""^*° *'"■" «"«' Diocesan de tolerance, where IJoman Catholic ecces as Tthn ^'Z'- '"^ '*'^>'<^^''« •'•nd judge, tic^al au.hoiity has always been mot '' *.'!*, r^:7"""^ '? t«k^'n for g'ranL tical auihoiity has always been most beneficently displayed, even th ou-^h were absolute in effect, and wheTe th, in favour of aut^hodty,'" no" d atfon" foj W?'"' ''i^'"'-'"' "° opportunity offered mon .-n^fT'' ^'U' °"""^''"« t'^" ^»'« of com- mon justice and common right of being hea7d oon,pi,a,i„„,ofand;„^ti.;;;:;Sfii^2 hght during the world's darkness alldw:.^ r'l ": 'f .,."? P-"?;!'*rated, without the will l..t fh^f'f*"'"'"'''''-'' ^y ''"'nmand, my will, let that for a reapon stand " It 18 not my business according to mv an. ':"^:"^:?'\e!^!?'----ofitsr?^t consent, as they Were without the knowledL'e I nI.P<.ti-^„ *u .r.:"""" "' "' 'is merits to £.11 ,« Ht, ""'""^ Cli'i.tla,, common. mo 1 ,,."•"""""":» uor 10 lolloH the legal objections taken against it • it is sufficient to say that he is the highest RC a ut-Ki?'/""""'^ '" ♦•»' Diocese a,rd Z enf ,r,.p , "'t- 'i?' ^''^'° his authority other rule, equally outrageous as that men- ^oned, drawn from the same ancient archives was not also re.announce.l, that hereto sZ est, ervanda fide,, no faith is to be kept with think for themselves or to form their own opinions onany subject, this being the trTie ni-n.ng „t the word Letic n. every Or J^ scholar knows. The hiuh morality and up tention which the Courr^'it^adjudira?; "poniRs long as the decree was confined within Us ecclesiastical province, civUju is diction might not touch it, but when it ove - reached its sphere and expended in"o the re- fawVf tT" "■■ ^'-^^d Jurisdictions the civ law of the province by its -ivil jurisdiction m-Kht question its abuses, and subject it io a LrT.?""""' *" '•« 0"n- It iB not neces- tn nnnninr ' , '." ""F""^'|"t quality of Roman Catholic, or of parishioner of the parish of Montreal, died in that parish, to which the Roman Catholic Cemetery ol the Cote des Neiges belongs, as the burying ground for Roman Catholics, and especially of tho Roman Catholic parishioners of the parish of Montreal. His widow, whose in- terest and right to have him decently and Christianly interred is unquestioned and un- questionable, by writing duly executed, au- thorized some of his fiiends to obtain burial for his body in that Cemetery, which was, in fact, the only one for the burial of Roman Catholics of the parish. Application wa^ made in due course, on the 20th November, to the clerk of the respondents, at their of- fice, for the purchase of ground for a grave in that cemetery, and the application was re- ferred by the clerk to the Cure of the pari.-h. The demand was renewed on the same dav to Messiro Rousselot, the Cure, who, being asked generally for burial of Gnibord's re- mains, on the following day, (he 2l8t of No- vember, and conceiving that the demand was for a burial to be periormed by the priest with th ■ usual religious and ecclesiastical customs and cerem nies, requested a short delay for instruction from the Vicar-Oeneral, Messire Truteau, wh-. replied by letter, filed of rectird, that iiaving received worn tht Bishop his directions to refuse air'ntion to members of the Institute when dying, he could not permit the ecclesia-stical sepultun to be given to Ouibord, who had died sud- denly, but who had not renounced his mem- bership with the Institute, and therefore ii was impossible to allow him ecclesiastical burial. Tnis answer, which was predicated upon the supposed demand for ecclesiastical burial alone, Iiaving bei n communicated by the Cure to the applicant, the latter intimated that ecelesiasticai liurial was not required, but only simple interment in the Roman Catholic Cemetery of Cote des Neiges, which .Messire Rousselot, the Cure, as a public officer, was required to allow, oft'ering at the same time to purchase for the appellant sulHcient ground for a grave, or to have him liiiriid in the ground belonging to one i'oulin, for which purpose the applicant exhibited a written consent. Tho Cure was quite willing to sell to the appellant, what ground she might require for burial, but refused internunt tlierein to her husband, Guiliord's remains. He also refused to allow the interment to be made in Pou- lln's lot, but offered to allow interment in what is called the reserved lot, divided otf and separated from the burying-ground of Roman Catholics by a woodin fence, and kept for the interment of bodies of iufiiits unbaptized in the R. C. Church, and of such as were not known to liave been Roman Catholics. This was manifestly not Chris- tian burial, and the qualified and distinctive utter of the Cure was refused, Afterwards, on the same day, a similar demand for burial in the cemetery was made through a notary to the respondents at their office, speaking to their cleik, demanding interment fur the de- ceased ill the cemetery used for Roman Catholics of the parish of Montreal, known as the Cemetery of Cote des Neiges, in the paii.-h of Montreal, and requiring the re- spondents to give or cause to be given inter- ment on the morrow, or thi n to receive the remains into tho cemetery for the purpose of interment, and offering money for tho pui- chase of the necessary ground, to which the answer of the Secretary was that he waa authorized to answer that the Fabrique (the re- KpondenlK) would give the interment in that part of the cemetery not consecrated, and without any dues or chirgesjor S'pulture. On the follow- ing day, the 21st November, the body was brought by Guibord's friends to the cemetery gate and refused entry into the cemetery by the keeper, acting under directions, except for interment in the so-called reserved lot, the lot reserved for unbaptized and unchris- tian bodies, as stated before, to which the keept-r added another class, the bodies of exe- cuted criminals who had not made their peace with the Church. The remains were thereupon removed, and received interment, temporarily, in the Piotistant cemeterv, Now, under the circumstances, as stated above, of the demand and of the qualified and distinctive refusal, the refusal it.,elf may be deemed absolute and a distinct determina- tion not to do what was demanded, to bury the body of this Roman Catholic and parish- oner in the ground apiiropriatid fur tho in- terment of Roman Catholics, and the refusal also was made by the party properly called upoa to do the act. So that a demand and ^^^^.^'H'^^^'lr^^MAuh.d I M - ■••■^ > n III ,y fl for th no olijcct . ,. . I'J* the cvi. I'lvliininarirn miniwl •""■^ *"lv"'> "caiMRt .'ill InRtltiit Cnnndi notoriously ''.lmlu|..p,ivi„Khi,„of,.ccl I*-", and as such ptiblfdy nnd I'Mt to canoniml pennlffe« '«ii«Nti<'nl burial t'"'"'f, as pr.,vi,i, I 1, I ^ <■ ""^ ."'" «"|H'rior ordorH from t .«;.)' "■',•"■ '"'''"f "'••^^•'• r;:y ,;-;;;Tf '= '^-'-^-'"^ ™iSS' •- r-'^^""'^e are on,, pro" I'TlT, ^'I''"" «"J^''t''«^^r .ran LrK to Li J '' *'^' '^•""•"■"'- '"•^•''"S fsc, txion d,-rviM rVi, Z'*""',"/'. « P'-n-mptorv taken iri t h« ^ '^*;P'>ns''- Evidence was men! claimed- i'^.V"' '■'■"'■^'♦' "^ <•'« *"'"- a*gu",ent w«. )'' ?"'.' "i '"" ""'' ^•^''«"«tiro ofnotioeo he i, i'7'''''''«"'«''H-«>wantj,s8m.d the wrt «?^ /"''^"r ""-' '""S" «"« 16 7 The first objection la purely technical, thnt the writ Ih not in tho form j-cqujrcd by law ; that iK, not in conformity with tlio articluH of tJio codu of prociiliin; wliicli apply to Hh Imhuo. I It Ih proper to prcmiHu thiH |)art of tho Hiib- Jtctby KayinK that tho writ of Mandamtm' haH in Kniihind, from whcnco it Ih derived here, been liberally interponed for tliobenc^fit of tho subject and tho advancement of juB- tice, l/ioii;/h oriijinnUij a writ of llnjh Pr-rix/a- b. directed against the requele hbdlit only : thai is thedekudantsare required toshow cause b» fUadmp specially to the v,/ormation, laplaintl A similar practice prevails in the Cxle oi Ontario, where the English law prevail., se, 8tr,t.^^^ '"'■*'''''''■*■*'■'' *'"''* ""' prevail th. stiict .teral rule against our common practici BhouM not apply, and our procedure buinL different (r„m that of England, alth..ugh w" have nominally adopted her writ, I am 8.itis- fled that this tir«t objection as to the form ol tbo wilt should not prevail. The next objection is as to the direction o( the writ to the Cureet MurquiUien de V(EuoTt et/'abnquede Montreal, and that it should be to the Cure o( the Parish only. Now the direction 01 the wilt 18 a matter of great importance and the utmost care is required to ensure its accuracy, it musD bo directed to all those who are legally to execute it, and when directed to a corporate or quasi corpciate body must describe it by its cor- porate or quasi corporate title, so also if several peroons form but of the direction of these proceedinfg against he respondents, the Curi ct Ma^guil.J., and therefore this second obj.ction cannot pre- vail. The special legal validity o. thai qui lion however turns upon the duty to be done, ^nd depends upon the requirement of the «ppellant, that is, the demand of dntv re- luiredby her; the distinction is pl: in be- cause two kinds of burials have be, n ,nen. tioned the ecclesiastical and the civil, both ••o called for purposes of explanation ; the first being the burial of a body by a priest vyith ecclesiastical rites and cen monies of the Roman Catholic church and the benison by him, of the grave at the time of the interl inent,which being of ecclesiastical , ognizance I should not be disposed to inteifeie with or order, as being beyond that right ; the other, the civil, that is simple intermei.t without religious rites, which may be atiended by the Curt or his deputy as a civil duty to re- .cognize the civil laet— i„A«»,«/ion depouitUe le toute ceremonie re i^yieiw— which constitutes civil sepulture, an acU purely civil. A te.hni- Laldiffitiilty arises, and meets me here. It is plain that the applicant knew that r liglous as well as civil burial exi.sts : at tirht, the de- raand for interment was general without dis- tmguishing either kind of burial, and only upon the Cure's refusal to allow religious I'lirial was the other, the civil burial de- manded. Now the rule laid down by Pau- |)ing, p 284, is that the demand must be ex- press and (iistinct, and not couched in gene- artificial person- or''omVcTth:;m„sr:iiri:: ;;l'.l'!'!i IV ^I".-'" -cu'«»r'> ^^ «"d ileluMv. as Jt rega ded a pro' Church of England comml!! pnlj "book ",? ' S't": "' '' '"f "'I' ''''' ""^ "' '" 8 declared that the Church Oirice for ihV ^nu va ,h . T"7 '^'^ "'^' I'"'"', un.l was burial of the dead is not to be us, d Ty rrmSt^o^^^^^^^^^^ clergyman fo,' any that die nnbapti.ed or ex- JSe , v ^ t all V '1 .'"'^ '" ""^ "' ^■ communicated, or have laid viol,-nt l,...wi , ,'■",'- "-'>^ ,'" ""• He could not and would upon themselves; itis t u^h ,t t| e ^^ rl '''%V'" prevented in attending ,|. in this respect is'almost ^ie I. ter ^^ '"•''« U. C. I'arish cause baptism may be perfo med at \„;, h ? ^ 'i'' '"^^ time before death, even by l.Tl .tds E V J,2!nt i '%^"''^' ""^'"'^'^ 'rum simpl. communicated persons are those only wiL cherto t "• narl 'l^^V^ ."'". ^'^"■'''"''- were denounced excommunica'e mniariexcom. ZtlV^l^v.nf if '•''"'•^''.!^'"' '' h" could m.niratione, for some grievous and no oH. t s cl ar II rtl '^ "hile alive. ous crime, which is no longer practised be o' h. .„.,• ^he e.vclusion of the remains cause the courts act upon the ir^e by \va l^'^u'iT cZ'7 """' ^i^'" , ''••'-■"^nt in of punishment, and lastly suicides that i l,^ cemetery is something touching only those who' kill the,. /clv"s volu taril 'o? tl.Turil^.o""''. ?T "'"^■'' "''"■ "'"""'"/ and by the instigation of the devil, as tl ^ter ov ^ iTl'''''''' "•! ^■"""•"' "'""■ canon says, which are put aside by he ver .•onid h^.v ^^'"'-'\'»0'-^"^'cr the Cure as such diets of the Coroner's jury that the net wa- 1 vh hi, m /w •-:"'^-'*"'«"^"l '^""t'ol, and over done by the person when out of lis senr.^' Lr 1 1 ."n"'? "''""' f"" ^'"' ^' ^'^'"•^«''- nor am I aware of the existence of an " aTse he ri'Iult^ ,? '*"' ^ Prevent, be- canon whi.h necessarily enforces the read •eml v is*^ ... the Uoman Catholic parish Ing of the Office over every corpse consigned I risSr h ^•'^"., property of the pa. to consecrated ground. But «till Tis^th^ X v to"^"X^^^ common law of England that every persor I tWu un, "'.^-r ^ '^ '"'^•''t n^ay at this day be buried ^^ t^ ol^Sl^^Sir^xJLi^n'Liri^^h^J ';uiiJu/"S^n^r-rt:;r"-;-^£ (hurchyard of the parish where h. dieg. In England, therefore, the right to interment is general, every person accor- ding to the circumstances having a right to sepulture in the church yard or other burial place attached to the parish church. Hence the right of interment is general for Chris- power over objects not within their special t.rov.nce as ecclesiastics. If the want of ab- so ut.on and ot the sacrament was the enui. va len for the refusal of burial in the Uonma Uitholic cemetery, where were aeknowkdg.d tianB^;;„;e ^g^t ;h:^\h: ho ^^^Ei; Sr'So&t^^^^ "-'V'' - is valued on behalf of the dead is that thev ,1 n? .. . '".•"-' ^"'■'^•''> '*''". ^y "cci- be buried in appointed iX^g JroV„'s tmLZtT r> ".a ady, died without these ^herethefield ofGod. ^,„ „ r^ , ■ , _ ...V-.,., .^.|iiiiu uit ao uiiuiferous lOr S Pn ™.? f .7 ^"'i' ^*'.^ ^"1 «»'» ilarguilliers ecclesiastical matters. If it were not for this l^^tlS'^^S ■.t^^,*!„.'!!'«...T'^«^ His honour"' alone the custodian and keeper of the regis try book, he is required to see to the registra- tion therein of all burials in the parish ceme- tery, he gives certificates of those burials and opinions on this point could onlybe considered as extrajudicial, the case being decided o questions of form. Cabon, J.— This cause cllibrc, which owes 19 a Rreat porUon of lt« fame to tlio oxtmncous iHHttirs which havo b» en intioducKl, nnd thf niimeroiiH qiuKtions whi. h Imvu bum raisfd «iinfciii.s«nly lUKl without iKlviintHgo bt-inu tltTivcd Ihuiifiom, is nnHiirrdiy oiiu of tlif greatest iinpoituiifu ; not only bmiusL- of Iju. very proper intcfiost niiinifesteil in it by the parlifs, but also, ami above all, by the deli- cacyand the complication of tho subject ol the present litigation. While admiring iho immense labor nccom- plished with a perHeverauce and ability s.l- (lom seen, by the learned Counsel represcnt- niff the parties, and after havin},' e.xaniin.d ii with all poshiblo attention, I believe 1 am placed in a better poHition to do justice o the case by dispensing with all factn use- Jens or of (.-mall importance, and also by luit- tinjr ahide several questions which, thouL-h ol great importance in themselves, are here ol doubtlul application and may with advanlnfre be d.feried to another occasion. I will iluie- fore content myself with recalling the facts which I consider useful and essential to ihe contestation ; and from these facts I shall de- (inue and btato the questions which seem to follow. The facts admitted as well as proved, may .esummamd as follow. ,_Giiibord was a Koman Catholic parishioner of the I'arish ol Notre Dame de Jlontrcal. He was at the same time, during several years a member of !'I ,dtut Canadien, a liter- ary society, incorporated, and com- posed without distinction of persons ol (lifterent religious denominations. This bociety possessed a libiary containing works regarded as bad and dangerous by the re- ligious authorities of the Diocese. After several representations and proceedings on the subject without practical result! the Diocesan Bishop launched, against the Catholic members of the Institute, who con- tinued their membership, canonical censures and penalties, having for their effect tho de- privation of the benefits of the Sacraments, and consequently the rights of ecclesiastica sepulture as pretended by the respondents. This was the state of affairs when Guibord died suddenly. He died i n November, ) 869 without having retired from the SocietV The friends of the defunct, at the request of the appellant, his wife, charged with making the! necessary arrangtments for the funeral' to that end applied to the Cure of the parish and prayed him to give the remains of Gmbord ordinary sepulture in the cemetery of the Parish. The Cure, being apprised that (xmbord was a member of the Insiitut, desired time to consult with his superiors. To this end he wrote to the Administrator of the Diocese, in the absence of the Bishop, desir- ing to know what action ho should tak^ the matter. In aiiRwer to this request he received a letter which will be found on page 2 of the yuc/«m of the respondents, declaring in sub- stance that Guibord having died without having renounced his connection with the inittlut Canadien, ecclesiastical sepulture could not bo accorded to hisremainu This letter, communicated to the friends of Iho Appellant, WHS followed by discussions and explanations between lliem and the Care in the course of which it was disiinclly admit- ted and declared on the jwiit of the Appellant I'y her representatives, that they did not in- Hist upon obtaining eccUsiastital burial for the remains of Ouibord, but, waiving all such claim, would content themselves with civil sepulture, which the Cu,r, om his part declared he was ready to accorv».ich win dl In'; ,;'t,:rit^':'' ;;"""■- «•"» rcniilr,.,! .),„ "' ,, " *^'>'' "'at only '"conr:';L;;r'7;^'r,.'T'''.r'''"^ '"-•vor inHiHiinif «non ,Li '"""*'. «"d 7«t.ictc.d to Jeor.Mng S,'*!" '''''"'''' '-•[-tly refu^..^: '°,;^/, ;;-;^^ ,^ Jmve ••l"tant or ilL^Hi raftHfr. '"'''''''■'' '''■ ^•u h burial «ith wh h ,1. » ' .*;'■""""« «' •";vo just InJu LZZT'n'T "^''^" ';"''"•«, i«.portant n.s Zyl^'^l, ^^ «'^-*™» f Hiat.d at the romm ,. ^ * '• '"ny. ns --^':-tio„'!::;rrs;:;;.i^ei.tt'for -i r.: it "p "'a,':;:;^'';;"'; «<'^^''> ^tci nre'riS.r^i/it'ivf. '^":;''*'°"'' ^- ''^<>'- '•^% that in an nfi ,it de ' f ^"•'«'"««"eal •'-^••cul an.hori\i!!:S/, ,.:|;-V - -cle. itntlon of the rivil »..:i . ""^ *"^ i"'fr- inconfo«,able ^p > ^nanc r'*" j^ '''''' 'o me that the oue-tionTf ;, • J' "PPfars TiMch upon the ci^;, ",'''■''''''''•''"" "•««*» »vitho„t«hicl it wo hM "•''"' ''^ ""'^h «««<'. down a general rule ^ ^^ ""^^^^'^''^ »» '«/ 'ho^'actnaVi'^'rwi,? aZr" T'^^^^ '" ''own this ru^'rese'vin^^H'" ''?•" J^y^R parties "^^«P<^'="vo pretentions of the be^u'ratiSS'ALT. ^"^^ '^"-*-« ">-^ '4nnV:h.^.::L«f/;r;^jc„r'^'^!?»- ««s the demand which had bTen 2!)"'^'''^ = pressed in the form ? "'^'^^ "" jbeS-addresS'tolhri"; ^'^""''^ "-« a duty imposed uj^on thm 'bv'l^^ *°/""^' 'or nejriected to perform t^of^^' ^"^"^'"^ ,pr.-Hentcase wlmt WH^«^K ''!;'^- ^^ t^e p:s;t:^[^-^^-^-"^='^3 f I 1 21 i •ccordlng to the peciillnr clrciim^tancog of earl, C.HO ar.. or nrny 1,,., conf,..m,d to usnR.. nnd t.. law. Jhu app.llant in h.-r rfr'^u not l.«v MR .p,.c.(l,.,l which of the twoburialH nhu caunrd; w.r,, tl.o rt-Hpondrnt., according to thefuctH pmv,.,i anterior to iho a. tion and cvena ,h..d,.„,l. of tho dcfun,Ml.x"l i th« belief that it was civil .cpnlture whic wa« dcmandcl, and if thi« bo thorUwa •.Kb 8..p„i,„,, onvrcd. and refused? ' but the law in too poMtlr« and too clear, «he tcrmH are too formal, an-l it U impoHHibl,, «„ ak« any other interpretation from th. m Ihnn tbat Wbi.h it fully eXf.reH.rH. The |«w HiHh as it IH, U without doubt not ».o po„d a,' .tn,lpbtbe;bu,, aH it m,,U, i, nfust bo carried out. When (he Hc.tion .,f the C.do trea inprofm'" »' « to see tho remains of her'l? InTlc ,|T, Se Zim „t'"""""^'. "'"I •"^'"■^""•^ '" KXi"'" "'"'^'^^^ ^° -^"^'^ ^^ ;i-r "h^aiiiig-^niie"';:^"' ""^ '"^'^ ^-' since objected iKt. Ah to the form of tho writ. It will br bZT ^'''^/''"' :'"' t"-^'"^^"t instance 1 S^^eH '""i * T •''"' "''' '"P- ^''. «f Code dc Proced., art. 1022, and following. She has commenc.d as she should have done, by a r^quete hbelUe addressed to (he judges of (he Supenor Court, to which requeteh annexed 1 writ of ordinary summons, requiring the do- Z!h * '.' "'"l""'' "" " ^'"V in'licated to res. pond to the demand cont » nlHfi fn.) H-«lrtw« n,, '^^.,'""' "'""i/.l fur- *'"m, tlitir K.^ .«<-. '^* '".' •■'«"' ov..r "ttlifcJmijfo (,| u,,., „ 7'"ity, all |h li J, • / '°^" ""^l them the certificate of t ','^"*'i" '<''Pt "^r wa« therefore nquirS w.: t' ""•. ,^'' ""*' registration should ^^ L 1^1"'"'^'''"^ "'« u«affe and la,v m' J" ^""("^mity with "aid burials may be mmie ?''' °/ *''e with theus.f,es and the L In'?/"™'^^ before its all tlio indirationl ". ^^^ «=»8e the civil sepuitu . w H. '■° ""»' '■' ^^ ;vhich wasdlandcd,: d\,,r,! tP"'^'-d ■! ^•nts contented th-mselv." with Jt "P^^'- ThiMusHe.tionis justified bv^'h, T^'"^ ^'"■' of thereguete, which «ro vaju "n »"* ''"* tain as to the description of *Xf . "^ ""'^'''•- 1 «nd which muHt bo*co„sen ' "m '( reouired! by the f«cN establishes ?;"'^«:\ ' "'^'^-^ fact..*, amouRKt others are «« • ^'' ' ' ■■ cease of Onibord; ^e 3 !.Ki'r '-^ '' ''^^ ttadeCohim.that'hek.^S^;:""' • N in remaininir a mcmlwr L i? C" ^'- ' '■ 'i' would not be bim't™ /"^ *'"* '""'""•'^ t^ he did not care much ZZV"""' ''"' ''"'ti he had H large nTr^t* of „ ' ^'''"^'^"^ *''"» neral was all l,od, !!!;,, J, ^^ .fsons at his fu. tiieappellHnt,that thisdecIanLM,'!n '" '"'^ **''''''l and starting, therefore, fS,? T '^^'^'' herlmflbaod,8heJkneiv thaTit L '''''•"*''^ "^ 1 ««ciir mat It was civil bu- fM denuded of mil Miin.i ',»Hb«nd ..n.,erHt,S 1;. ■' ;• f 7' """ l-; '..ns..,,nently, Inordert, ,^i. '' *" '"'^»- ;'nr took dm,. J o( £^^Z "'."'" "''I""- t'«t h.. would V, v'ntl. . ."*'""'• ''••-'"r.d 'K declared th..t be" w'^.r'"' "*■*"'"• "'";» the ceremonL ,«,rr"' ?'" ''""«» [;• 'K ..I's burlalH. It w« ' ,,'" "'" '«'*<• of tbiHdtterminailonthat( Mi " l^'cillon of P«»ied by h,H friJn I w "'"'■'''* •"'•>'■'''■'•«'«.. tk I'lHce.that thoKuI i. "''^ "'"' ""'f" '•0-, who wascall" ,,':''"'■' "^ «'"' erne- ''".I consented to o , a l/'V"" "'" ^"'"" C'.aHed would have be.'n '-^ "f the do. without any cercTonv hi;'"'"'"'' "'^•'•■'n ^ the presence of tl ™ ("fr6 ^'"■'''■'' "«'' ""t i" "'",' '."-r"h,ui"*;,o' diii;:"" '? "•?• "^"'■" ccthVastical sepuUure t at i.''^ «'"«inin»r «';i'nlture only (hat was'a L 'Vr *" "'" ^'^" o^!^.^'h:,;;:f':S'i'^^!'.osepnitu. abundant an.l con In",., ♦ '""'"'"«« l'«.-en the Cur,; omn.d to »' *" ''^'''I'lish that to Kay. the Be,., tn'/e"; i t.u't'""""'"' "'"' '■" ceremony, p,!,,,, '" ^^ ' '^ «ny religious vestments, and oth> r u; "' c,' interred in tin jilace ns-'if.'ned by tho Fabri(iue, it could not 8ii'"j|y bo attributed to it, but rather to him who, knowing fho connequences, voluntarih subjected himself and IiIh family to a din graco ho could so easily have avoided. Duval, C. J. — Thoro can be no pleasure in listoninK to tho repetition of a twice-told talo. The I?nr will therefore bo pleased t<. hear that I inten to what might suffice, if we are satisfied that the law is imperative, it is our duty, not to judge the law but to respect the law. If on reading the Code and tho law which preceded the Code wo find th. law stated in such terms as to admit of no doubt whatever, I say it ' the duty of th( Judge to respect the law, and to obey it. 7 he first question m this case is : Has the writ issued in accordance with the require ments of the law ? T say, most assuredly it has not. It has issued in tho very teeth ol the law. We have been told that we hav< nothing to do with the English law in this instance. Nothing to do with the EnglisI law! Then where are wf; tn fir..-* *S^ j^tii*; Is it the law of Canada which has told ui^ what a writ of mandamus is ? So far is this from the case, that the Code informs us. after mentioning two or three cases in which the writ of mandamus may be obtained that the writ is to issue in all cases In wMoh the wilt of mandamui w Id li« in 1. 1. Inland. I turn toAriliUi 1,022 of theCotIt; of l'iOf>duro for Lower {'Hniidn, and I find no deflnitiou of ulmt the writ of umi. lanius Is, Hero li wlni' (tinted. "In the 1 .ilowllig castK," (two or three ln»tancrH are given) " 4 : In nil cnnv* where a wiit of "mandamus would lie In Kngland, any per- ■'Hon interested nuiy»|.|ivto tho S\i|Mtior " Court or to a Judge iu vacation hi 1 obtain " a writ, commanding the delVniliint to per- " form tho act or doty required, or to show " cauH.1 to tho contiary on a day fixed," What right havo wo to say that the direction of tho writ shall be olhei vihc than to show cause on a day fixed ? This doi-s not admit of any doubt. Must wo not look to that writ? Tho modern writ of mandamus is a high prerogative wiit, not a writ of right. The subject is entitled to it on a |)roper case shewn to tho Cou t. It was 'ounded on M.ignu Charla. Ii. Kngland, what does tho writ contain? If-ro is what we are told by a writer on tho subj it. (His Honour cited the form of tho Kng ''