Brown v Notre Dame de Montreal (a corporation)

by Philip Jones

(1874) Law Reports 6 Privy Council 157

This case concerned a right of burial in a Roman Catholic churchyard in Montreal, Canada.  The churchyard was divided into two sections.  Neither section was consecrated.  One section was the normal place of burial of parishioners.  The individual grave would be blessed or consecrated before interment, and the departed parishioner would be buried according to the rites of the Church.

The other section was reserved to excommunicates, notorious sinners and the unbaptised.  Burial was without consecration of the grave or ecclesiastical rites. 

Both sections of the churchyard were under the control (not necessarily the ownership) of the parish corporation, which comprised the parish priest and churchwardens.

G was a Catholic and a parishioner.  However, he had gravely offended the Church hierarchy by his involvement with a literary institution which taught ‘pernicious doctrine’ (p.196).  The local bishop had publicly denounced the institution and its promoters, because it contained books on the Index.  He cited decrees of the Council of Trent which held that

(1) the hierarchy was the sole judge of the morality of books and

(2) persons keeping or reading prohibited books were liable to excommunication (p.194).

The Roman curia had supported the bishop.  It had issued a decree forbidding Catholics to belong to the institution (p.196).  The bishop ordered the parish priest to refuse absolution to members of the institution.  G was well aware of the attitude of the hierarchy but specifically refused to resign from the institution.

When G died the parish corporation agreed that he could be buried in the churchyard, but only in the section reserved for excommunicates etc, and without ecclesiastical rites.  G’s representatives applied to the secular courts for an to compel the corporation to permit burial in the normal place of burial instead.

Sir Robert Phillimore, author of the well-known commentary on ecclesiastical law, gave the Privy Council’s opinion on the case.  He first considered whether the secular court had jurisdiction to intervene in this dispute between Catholics. 

Lower Canada, including Montreal, had been a French possession till its conquest by the British in 1762.  The Catholic Church, with ‘Gallican’ modifications, was the established Church of Lower Canada before 1762, and its ecclesiastical courts had jurisdiction (p.204).

The Quebec Act 1774 provided that ‘subjects, professing the religion of the Church of Rome’ in Lower Canada ‘may have , hold and enjoy the free exercise of the religion of the Church of Rome, subject to the King’s supremacy’ (s.5).  The Act gave a legally enforceable right to Catholic clergy to demand ‘their accustomed dues and rights’, though only from Catholics.

Phillimore’s conclusion on jurisdiction followed the Privy Council’s decision in the earlier case of Long v Bishop of Cape Town (1863) 15 English Reports 756.  He held that the secular court had the same jurisdiction over the Catholic Church in Lower Canada as it had over the Anglican Church of South Africa.  Both Churches were to be treated as voluntary societies constituted on a consensual basis.  The court was bound to inquire into the society’s rules when it was alleged that the society or its officers have inflicted some loss or injury on one of its members.

As to the loss or injury in this case, Phillimore accepted that the Church had not refused burial of G’s remains, only of ecclesiastical burial.  However, he held that such refusal still constituted a loss, as it ‘implies degradation, not to say infamy’ (p.208). 

This is a puzzling suggestion.  It may refer to an injury to G’s reputation (even though he was dead, so presumably outwith the protection of the defamation laws) or to his remains (even though English law does not recognise any property in a dead body).

Phillimore accepted that the Catholic Church did have power to forfeit G’s right of ecclesiastical burial, but only in accordance with its own rules.  However, he held that G’s right had not been forfeited in accordance with these rules.  The parish corporation had therefore contravened the Catholic Church’s own rules in refusing ecclesiastical burial. 

Canon law refused burial rites to those who died excommunicate or in a specified state of grave sin.  Neither the local bishop nor the Roman curia had formally excommunicated G by name, even after his death.  Nor did G’s conduct in belonging to the literary institution fall into one of the specified categories of grave sin, in respect of which ecclesiastical burial was denied.

The wording of the Tridentine decrees suggested that a person contravening them might be excommunicated ipso facto, without a formal sentence being required.  However, Phillimore found that the Tridentine decrees had not been recognised by the ‘Gallican’ Church, and so could not have been in force in Lower Canada before 1762.  There was ‘no evidence’ that French Catholics had consented to be bound by the Tridentine decrees since 1762 (p.218)

The parish corporation could not plead that they were acting in obedience to the bishop’s order.  The bishop’s order did not comply with the canon law as stated above, and there was no evidence that he had any power to dispense from the canon law in such a matter.

Despite reaching these conclusions, the Privy Council did not order the Catholic Church to give G a Catholic burial.  G’s representatives had not sought such an order, and the parish priest, who would officiate at any funeral, had not been personally summoned to appear in the proceedings, but only as part of the corporation.  The final order merely directed the corporation to permit burial in the ordinary part of the churchyard, in the expectation that the Church would then feel impelled to perform the burial rites.

Phillimore was right to hold that the secular court had jurisdiction to intervene in the dispute.  Not only was its jurisdiction supported by Long v Bishop of Cape Town, the Quebec Act itself made clear that the Catholic Church in Lower Canada was ‘subject to the King’s supremacy’.  The laws of the Roman Catholic Church could not have the force of law in Lower Canada and must therefore have been subject to secular jurisdiction.

However, it is argued that Phillimore’s interpretation of the Roman Catholic law was flawed.  His essential reason for overruling the Catholic authorities was his opinion on the validity of the Tridentine decrees.  The Tridentine decrees may not have been valid under the French ecclesiastical jurisdiction, but that jurisdiction had, of course, been abolished in 1762.   The wording of the Quebec Act referred simply to ‘the religion of the Church of Rome’, without any reference to Gallican modifications, and the Tridentine decrees were undoubtedly recognised by the Church of Rome.

The reference to no evidence of ‘consent’ on the part of Canadian Catholics to the Tridentine decrees (p.218) suggests that, in his reliance on Long v Bishop of Cape Town,  Phillimore failed to appreciate the difference between the Canadian Catholic Church and the Anglican Church of South Africa.  Both Churches were subject to the jurisdiction of the secular court.  Membership of both Churches was voluntary.  However, authority within the two Churches was quite different. 

Long v Bishop of Cape Town held that, absent an ecclesiastical jurisdiction conferred by law (as in the Church of England), authority within the Anglican Church of South Africa was, by default, based on the consent of clergy and lay members.  No other basis of authority existed.  As Phillimore ought to have known, the ‘religion of the Church of Rome’ includes belief in a power of governance vested in the Catholic hierarchy by divine law, which does not require the consent of lay members.

Gallicanism may have limited the jurisdiction of the Pope in favour of that of the Catholic Monarch, but the Monarch’s jurisdiction was not dependent on popular consent either.  Gallicanism was in any case extinct by the 1870s, the French monarchy having been abolished earlier in the 19th century.