fact is the law.

Every person entitled to burial in that cemetery is aware or should be aware of this state of things, and they must abide by them. There is, therefore, a distinction and a difference in the rights of persons claiming to be buried in the Cemetery. This is perfectly legal. Now is it the Fabrique as a lay corporation that determines who are to be interred respectively in these divisions? If so, we may perhaps order them to give Gui bord civil burial in the consecrated part of the cemetery. But it is beyond controversy that it is not the Fabrique which decides this question-it is the Church and the Church alone. It is the ecclesiastical authority of the parish. It is to it exclusively that belongs the right to regulate this matter. In this instance they have done so in the exercise of a purely spiritual power. It is legal, and the decision is final. From this action of the ecclesiastical authority determining where and in what part of the cemetery Guibord's remains shall be interred, there is no appeal to this Court as I understand the law."

Mr. Justice Drummond thought that the burial demanded was ecclesiastical and that he had no jurisdiction to order the

same.

Mr. Justice Caron :-"De temps immémorial, il a été d'usage, non seulement dans la paroisse de Montreal, mais encore dans tout le diocèse et même dans toutes les parties catholiques du pays de faire dans les cimetières la division faite à Montréal et dont se plaint l'appelante, que l'une de ces divisions est appropriée à la réception des corps de ceux des catholiques romains qui ont droit à la sépulture ecclésiastique et l'autre dastinée à ceux qui n'ont pas ce droit, que c'est dans cette dernière partie que sont inhumés ceux qui se trouvent dans la position où était Guibord lors de son décès; que c'aurait été déroger à la règle générale et à l'usage, si l'on avait accordé au nommé Guibord ce qui aurait dû être refusé à d'autres........

.....

"Ce serait bien inutile de s'étendre davantage sur cette partie de la cause toute importante qu'elle soit; en le faisant, je ne pourrais que répéter ce qui a été dit sur le sujet dans le factum des Intimés et surtout dans le mémoire supplémentaire produit de leur part auquel j'ai déja fait allusion et auquel je réfère de

Chief Justice Duval::- "With respect to the burial itself, here again I must say I could have wished that this question had not been touched, for it may be said that we are not meeting the

:

merits of the case. What has taken place, however? What was asked of the Fabrique? The widow deputed a person to call on the curé. He stated that Madame Guibord would be satisfied with a civil burial. The curé answered that he was willing to give civil burial. Here came the difficulty. The curé said I will bury the body in unconsecrated ground. There is a division in the cemetery. The two portions are distinct, the one being allotted for persons dying without baptism and unknown individuals. In France, the power of the Fabrique extended over cemeteries. As a matter of right the churchwardens were authorized to direct where the graves were to be dug. There could be no doubt of this in France, and according to the authorities which had been cited, the same rules had been laid down in England. If there is a little difference in the powers held, the result is the same."

Thus was terminated this famous cause, the argument upon which occupied twelve sittings of the Superior Court, two sittings in Review and four in appeal. Every plea that learning and talent could produce pro. and con. was set up. Theology, philosophy, law, history, were relied upon by each party. When we read the report of the pleadings before the Honorable Mr. Justice Mondelet, we seem to be present at a religious conference rather than a judicial contestation. It was not until the cause was carried before the Court of Review, where the judges constituted the sole auditory, that the parties deemed it their duty to confine themselves to the merits of the case and to develop their respective pretensions of law.

Have their Honors, Messrs. Justices Drummond, Monk, Ber thelot and Mackay, judged rightly or wrongly in holding that the burial refused to the remains of Joseph Guibord was eccle. siastical, and consequently beyond the jurisdiction and competency of the civil courts? Into this question we shall not enter, seeing that the cause has been carried before the Privy Council, who, it is to be hoped, will render a decision based not upon questions of form, but on the intrinsic merits of a case so fraught with deep consequences to all classes of the community, Protestant as well as Catholic.

Before concluding this essay, which has already perhaps been too long extended, we would make one observation. Much has been said concerning the independence of the Church in spiritual matters and of the union of Church and State in Canada. Why

should not that independence be rendered still more perfected and that union made more close and harmonious? Why, for instance, perpetuate the conflict concerning the minor's marriage without his parents' consent, a marriage which the State declares annulable within a limited time, and which the various Churches regard as valid? It may be argued that the law desires to protect the minor against the consequences of an ill-assorted union effected in a moment of blind and unreflecting passion. But is it not the fact that of one hundred marriages contracted under these circumstances, there is scarcely one in which the nullity is demanded by the parents? Do not our judicial registers testify that this provision of the law is only resorted to by the tutors and guardians of wealthy minors, with the sole and sordid view of serving their own interest?

Why, again, that absolute incapacity of the surviving consort to contract a legal marriage with the brother or sister of the deceased husband or wife, a marriage forbidden, it is true, by the Anglican Church, but admitted or at least tolerated by all other religious bodies in the Dominion? Has the State by this prohibition, a prohibition founded on considerations neither of public order, morality, nor consanguinity,― succeeded in one instance in preventing such marriages from taking place? No: the prohibited marriage is contracted in the United States; society regards it with much the same favour as if it were strictly legal, and the provisions of a will removes every consequence of illegitimacy. Why this contempt on the part of the State for the creed of the majority? For the State is deeply interested in preventing those disputes from obtruding themselves on public attention, their natural tendency being to throw discredit on the religious principles which are the stay and safeguard of a society. No people which aspires to lay the foundations of solid prosperity and durable empire, can in our day seriously aim at public indifference in religion. A continental jurist referring to our marriage law, expresses his astonishment that the religious marriage should be obligatory in Canada. The European who breathes in an atmosphere impregnated with the poison of socialism, may be astonished by such a phenomenon, but to the Canadian who has escaped the influence of modern philosophism, this state of things

* 2 Revue de Droit International, 269, 345.

VOL II.

K

No. 2.

appears quite natural, most wise and salutary. The reader, glancing at the political and social condition of Europe, cannot fail to observe that anti-social conspiracies have multiplied in inverse and alarming proportion to the decline of religious ideas: today Europe trembles before the International Society. Infide lity has been the source of the crimes and confusion of Paris. Religious faith alone can rescue Europe from a general revolution. Look also at the youthful Republic on our southern frontier, so wonderful in material progress, but committed by its constitution to indifference in religion. Within its borders, Mormons, Free Lovers, Spiritualists and Communists may be regarded as forming so many established institutions already engaged in the work of destruction. Let, therefore, all good citizens, who desire the principles of Christian morality to constitute the rule of conduct of our newly-founded nationality, strive to bring the State into harmony and unison with the various Christian Churches existing under its sway, and every subject will respect that which will be thus openly and avowedly protected and respected by the State.

Montreal, 15th March, 1872.

D. GIROUARD.

WILLS AND INTESTACY.

To La Revue Critique :

In your January number, 1872, page 101, you quote from the "Canada Law Journal" of Toronto, some criticisms on the article under the above head contributed by me to your October number. The Journal says: "From the general tenor of the (6 essay, it appears that the author professes to shew wherein the "law on the subject differs in the various provinces. If his re"marks were confined to the Statutes merely they would not be so open to criticism, but as we have seen, he does not confine "himself to them alone."

In reply, my introductory article in your July number entitled "Assimilation of the statutory laws of the Provinces of Ontario, New Brunswick and Nova Scotia," speaks for itself, the article in the October number under the above head saying, "It is proposed to examine the provisions made in Ontario, New Brunwick and Nova Scotia in these respects," shews that the enquiry was into one of the branches into which the original subject might be divided. That article, then, gives in detail a short summary of the actual statutory legislation on wills in New Brunswick and Nova Scotia, and taking point by point says: "That in Ontario there is no provision of this general character," or "no provision to this effect," or "that there is no statutory provision of this character," or "that in Ontario there is no general statute as in Nova Scotia and New Brunswick with reference to Wills”and specifying where in the consolidated statutes of Upper Canada the subject had been legislated upon, referring to C. S. U. C. chap. 82-73 to chap 16, A.D. 1859, regulating the Surrogate Court to the Ontario statute, chap. 13. 1869, relating to witnesses-to the Ontario Registry Act, 1868-to the Revised and other Statutes in New Brunswick and Nova Scotia-saying, "equivalent provisions have never been enacted in Ontario”—to 1st Vict. c. 26, (Imperial Act), "That it had been substantially re-enacted in New Brunswick and Nova Scotia-not so in Ontario." And So on. Could any language in the world more distinctly designate, that the enquiry was one into local legislation, and that the provisions referred were those of local enactment.