The Guibord Affair

[music] Welcome back to another episode of Time in Memorial, a podcast sponsored by the Oskat Society for Canadian Legal History. For much of its history, the Catholic Church was the central figure in Quebec's political life. Throughout the history of Canada, this role and the reluctance of the Church to surrender it has a tendency to create controversy. In the late 19th century and in the aftermath of the 1837 lower Canada rebellion, this role brought the Church in Quebec into conflict with political liberalism. The rebellion prompted Lord Durham's report and led both to the unification of Upper and Lower Canada in 1840 and to the later emergence of a more moderate liberalism in Quebec. Nevertheless, this kind of revolutionary liberalism that motivated the 1837 patriots, patriots, did not vanish after these reforms and it continued to play a major role in political life in Quebec. Today, we will be examining the Gabor affair, a dispute between the Anzetsu-Canadien, the heirs of the tradition of 1837 and Ignace Bourjet, the Archbishop of Montreal, over the sighting of a grave. In putting this episode together, we relied largely on level clerks' book on the Gabor affair, an article by Rainer Knopf and a master's thesis by Alexandre Camiret. We drew also on the four relevant court judgments and in particular on the Judicial Committee's report. Let's begin by introducing Bourjet. Ignace Bourjet was Archbishop from 1840 to 1876, his career substantially paralleled the papacy of Pius IX. Catholic Europe was divided in this time between liberals, typically anti-Clarical, Republican, and in favor of separation of church and state on the one hand, and ultra-mountains on the other, thought that hierarchy, particularly the Pope, should have a strong role in worldly affairs. Pius was initially a friend to liberalism. Two events changed Pius' view. First, he witnessed the wave of revolutions that swept Europe in 1848, killing tens of thousands and causing social upheaval. Pius himself was forced by the revolutionaries to leave Rome. Secondly, the papal state collapsed over the course of the 19th century to encompass only the state of Lazio by 1860 and eventually collapsed only to the walls of the Vatican City. The Pope lost all of his temporal power. These developments led Pius to become a committed ultra-mountain. In 1864, he promulgated the syllabus of errors, condemning 80 liberal propositions, the last of which was, quote, "the Pope can and should reconcile himself with progress, liberalism, and modern civilization." In 1869, Pius IX opened the first Vatican Council and pronounced the dogma of papal infallibility. Borje was an admirer of Pius IX and an ally. When Rome was attacked in the War of Italian Unification, he mustered 500 French Canadians to defend the Pope as papal zoos, volunteer light infantrymen. His commitment to ultra-mountainism inspired him in 1875 to order the production of a scale replica of St. Peter's Basilica, which is now Marie Rendumond Montreal's cathedral. You can see a statue of Borje just outside on the corner of Rene Leveque Boulevard and Roud de la Catedral, and on the inside, a mural dedicated to his zoos. Like Pius, Borje feared up evil of another revolution, and was concerned about the presence of liberal organizations in his territory. The most important of these was the Anstitude Kennedy, the other major party to this dispute. The Anstitude was a literary club founded to carry forward the ideals of 1837. They considered Luiz Joseph Papino to be an unofficial patron. As the only university in Montreal in those days was Miguel, the Anstitude was able to grow by offering education, including legal training in French. The Anstitude had a close connection to the Rouge, a radical precursor to the modern liberal party of Canada, and Canada, among their members, notables, such as Antoine M. Dorillon, a premier and attorney general of Canada, as well as Wilfred Laurier. Borje had many reasons to be suspicious of the Anstitude. When the Pope fled Rome in 1848, Borje called for prayers for his safety, but the Anstitude supported the revolutionaries. In 1849, the Anstitude would endorse annexation by the United States. The Church saw the United States as a threat to the French language, the culture of Quebec, and the special place that the Catholic Church occupied in British North America. The American Revolution was, after all, partly motivated by the Quebec Act, which preserved the right of the Québécois to maintain the religion. In the years that followed, the bishop engaged in a war of worlds with the Anstitude again and again. In a pastoral letter in May 1850, Borje warned against impious journals and enemies of your faith, clearly referring to the Anstitude and its journal, Love New Year. The Anstitude did not take this well, and began attacking the Church's right to Tive, and called for separation of Church and State. Louis Antoine desol, a nephew of Papino, and President of the Anstitude, called Pius IX, one of the, quote, "only important representatives of despotism in the civilized world," and later called the Church, the "enemy of progress, liberty, independence of mind, and all free expression of thought." In response to increased radicalism at the Anstitude, Borje lobbied the other bishops of Quebec for a disciplinary ruling against all literary institutes, keeping books contrary to faith and morals. The penalty would have been deprivation of the sacraments. He did not choose to discipline the Anstitude immediately, however, and kept his decision in reserve. Bishop Borje's three pastoral letters, 1858, represented an escalation of the conflict between himself and the Anstitude. In March, Borje invoked the turmoil of 1848 and 1937, and expressed concern over the prospect of a larger scale revolution. He offered seven rules to his flock, three of which were aimed at the Anstitude. First, literary institutes were not to introduce books contrary to the faith and morals. Secondly, members of these institutes were to remove these books if possible. If removing these books was impossible, they were to resign and warn others not to join the organizations. The Anstitude received these rules and debated removing all the books they had that were listed on the index. Instead, the Anstitude adopted emotions stating that they were capable of judging for themselves, which books were contrary to faith and morals, and refused the request. 138 members of the Anstitude followed Borje's direction and left, forming the Anstitude Kennedy Fjalsi. In a second pastoral letter on April 30, Borje recognized these dissenters and had managed the Anstitude for keeping the books, noting that the Council of Trent reserved the right to judge books to the bishops. Borje warned that those who keep or read forbidden books are liable to excommunication. This declaration rests on an assumption that decisions made by the congregation of the index and Rome are binding on Catholics and Quebec, which would become important in the litigation. Finally, on May 31, Borje offered an unqualified condemnation of the Anstitude and the Rouge and their journal. The membership of the Anstitude was deprived of the sacraments. The imposition of these penalties led to a decline in the Institute, particularly among the young. By 1875, the Anstitude was down to only 175 members. Despite this, the Anstitude pressed on, welcoming a visit from Prince Napoleon, cousin of Napoleon III in 1861. The Anstitude also made efforts to regulate the relationship with the Church. Wilfred Laurier was part of a first piece party, which went nowhere. A second attempt was made in 1864 with the Anstitude offering a catalogue of books and asking the bishops which ones he would forbid. Borje ignored this offer for six months before determining that it would be not worth answering. Later that year, a number of Catholics at the Anstitude attended to appeal their case to Rome, on the grounds that they had been censored without a hearing and had no opportunity to present their case. This appeal was poorly timed. You will recall that 1864 was the very year that Pius IX's syllabus of errors came down, and the Vatican was consequently in no mood to hear from a liberal reading group from Montreal. In 1869, without mentioning the appeal, the Pope condemned the Anstitude, though he did not impose any penalties on his members. Rather, the Pope discouraged membership and encouraged the development of other societies. At this point, it was suggested that the Anstitude just be dissolved, but the members made one final attempt to rectify manners by surrendering to all of the bishop's demands and granting him oversight over their collection. Even this, he did not accept, as he regarded it as a fainting and an act of hypocrisy. In the midst of this war of words, Joseph Gibor died. He was one of the Anstitude's first members, and had served in a number of important roles there. He was among the signers of the petition to the Pope. For six years, prior to his death in 1869, Gibor had been gravely ill, and had sought his last rights from a priest. He was allowed to receive extreme unction, anointing with a noitement with blessed oil before death, but was refused communion, as he was still a member of the Anstitude. Gibor was offered the opportunity to resign and receive his full last rights, but refused. He would therefore die as a member of the Anstitude, and apparently outside of the Catholic church. Nevertheless, his widow, Henrietta Brown, had a plot for him in Notre-Dame des Neges Cemetery, and wanted him buried there. The cemetery, on top of Mount Royal, is the largest in Canada. A number of Canadian luminaries are buried there, including Rocket Reshar and Thomas Darcy McGee, to name two. Those two died as Catholics in good standing, and if you visit their graves today, you'll find them in the main part of the cemetery. There is a smaller section, separated from the main part by offense, for infants, those who died without the sacraments, those who committed suicide, and capital criminals, practically a division between what was considered consecrated and unconsecrated soil. When Miss Brown asked for Gibor to be buried, relying on Borje's condemnation of the Anstitude, the Curé of the Cemetery, Benjamin Victor Rousselo only offered burial in the unconsecrated part. For Brown, this was unacceptable. For the Anstitude, and for Borje, this was an opportunity to bring their dispute before the civil courts. In 1870, Henrietta Brown sued the Curé and mergied of the fabric de Notre Dame de Marielle, seeking a mandamus for the cemetery to bury Gibor in his plot. In reality, the parties to this dispute were the Anstitude and Borje, Joseph Dutre, a man of the Anstitude, an atheist, and a committed rouges acted for the plaintiff. The object of the claim was, essentially, to set aside a canonical penalty imposed by Borje on Gibor. Brown argued that Rousselo's decision not to bury her late husband was illegal, because he was a civil-functionary required to carry out the burial of Catholics in what was the only Catholic cemetery in her parish. The defendants moved to have the claim struck by claiming that because they had offered Gibor a place in the section reserved for the unbaptized, they had not denied him his right to a burial. In their view, the precise location of Gibor's grave within the cemetery was a purely ecclesiastical matter, which could not be pierced by the civil courts. Gibor's religious rights were also not just physical. A civil burial would satisfy their legal obligation, and he had no right at law to Catholic funeral rights. At first instance, just as Charles Elésar Mondele found for the plaintiff. He rejected the Curé's position that he lacked jurisdiction and made an order to bury Gibor by the next Friday, with the fabric de Notre Dame de Mariel bearing the costs. This was received, alternately, as a victory for civil liberty, and an unjustified intrusion into ecclesial jurisdiction. Rousselo stated that, quote, "it is ridiculous that a layperson would order a priest to throw water on a corpse and pray for his soul." The defendant immediately announced its intention to appeal the decision to the quarter revision, an intermediary between the trial court and the court of Queen's Bench, which is today the court of appeal for Quebec. This would be the first of three appeals over five years. At the Coul de Revision, three judges of the Superior Court sat in review of the trial decision. The three judges reviewing this matter were Justice McKay, Bertha Lowe and Torrance, two Protestants and a Catholic. They reversed the decision below on the jurisdiction question. The Coul de Re did have an obligation to bury Gibor according to law, but only in the section reserved for civil burials. The division of the cemetery fell entirely within the authority of the church, and as such was not just issueable. The judges noted an opener that an aisle of the sacraments to the members of the institute was an abuse of Bishop's power. McKay called it "defective vague" and partially without foundation and without reason. Brown, however, never pled that Giborch was wrongfully excommunicated, and the bishop was not before the court to answer for the excommunication in any case. The court therefore overturned the decision of Mondelay and trial. The institute appealed to the court of Queen's Bench. There, Joseph Dutre opened with an outrageous motion. He asked for the four Catholic judges Caron Duval, Drummond and Monk to recuse themselves. Dutre pled that there were doubts about their ability to rule impartially as they owed loyalty both to the Queen and to the Pope. This was a common trope in Canada and the Empire, more broadly, dating back to the Stuart succession in the 17th century. And the years after Vatican I, this trope saw a revival. Notably, William Gladston, then Prime Minister of the United Kingdom, argued in an 1874 pamphlet that, quote, "no one can now become Catholic without renouncing his moral and mental freedom and placing his civil loyalty and duty at the mercy of another," end quote. They, along with their Protestant colleague, Justice Badgeley, refused with indignation. Their view recusing themselves would be an admission to treason. Dutre asked for an appeal to the Privy Council on the question which was also refused. It's unclear why Dutre thought this gambit was to his advantage. Mondale, who had ruled in his client's favor, was a Catholic. Two of the judges who had ruled against him at the Courter Revisión were Protestants. Given that the court affirmed the decision of the Courter Revisión, accusing the bench of treason does not seem to have been an effective opener. Justice Monk argued that the court could not compel the religious authorities to bury Gabor in a particular place and with Catholic rights. Drummond noted that, because the church was subject to a Protestant sovereign, intervention could be dangerous. Rainier Knopf, a professor of political science at the University of Calgary, identifies three main approaches that emerge from the first three decisions. The first is that of Mondale, who was willing to order an ecclesiastical burial, which is to say a religious right. The second was adopted by the Courter Revisión on the Court of Queen's Bench, because the ecclesial authorities were not before the court to answer. They could answer only to the civil burial, which Gabor had not been deprived of. The third line, which not identifies as the middle ground between the two, would eventually be taken by the Privy Council. Henrietta Brown died in 1873 and was buried in the plot, in 10-5-2-3-3-3-3, without incident. She had named the institute her heir, so that it could continue the action as an interested party. And so Dut would carry the matter to its end in 1874. While the lower courts had some discomfort weighing in on the ecclesiastical issues, the Judicial Committee of the Privy Council had the benefit of the presence of the Lord Justice Walter Filamore. Filamore was trained as an ecclesiastical lawyer and was an authority in the Church of England's canonical law. The JCPC did not allow to sense in those days, so he authored a decision on behalf of the whole panel. As an ecclesiastical lawyer, Filamore was much more comfortable intervening with the Church and spent much of his judgment analyzing the constitutional place of the Church in Quebec. Before the conquest of Quebec in 1760, the Catholic Church had enjoyed what recalled the liberties of the Gallic Church. That is to say, the Church was protected in its jurisdiction from state law, up to and including the royal prerogative. It also suggested a degree of insulation from Rome. In the articles of capitulation and the Treaty of Paris that ended the Seven Years War in 1763, the inhabitants of Quebec were permitted to practice their religion, according to historical custom, insofar as the laws of England permitted. The Quebec Act, 1774, reaffirms this right, subject to the supremacy of the monarch. Filamore concludes from these facts that the Catholic Church was not the established Church in Quebec in the sense in which the Church of England was in England, or the Presbyterian Church was in Scotland. Quebec no longer had an established Church at all. However, because the Treaty and the Quebec Act preserved some of the Church's ancient privileges, it retained a special constitutional status. This has two implications for Gibor's case. Gibor can only be denied burial in the consecrated part of the cemetery if he was truly a public center within its meaning in French ecclesial law. In passing his sentence, Borgé had relied on degrees from Rome, establishing, for example, the index, which were neither accepted in Quebec at the time of conquest nor added in the Quebec Act. Further, in the law of the French Church, public sinners require a personal sentence, and therefore canonical process, which Gibor never received. This is especially important in Gibor's case. The index, filamore notes, includes a number of books which a faithful Catholic may have legitimate reasons to own, such as works by Blaise Pascal and Hugo Grodius. Gibor should have been given the opportunity to explain himself. Consequently, filamore found that Borgé had abused his right and the ex-communication was invalid. Filamore found that parishioners have a right a can law to be buried in the parish cemetery. The custom in Quebec to refuse burial to "juice, infidels, heretics, apostates, schismatics, and all those who do not profess the Catholic religion" limited this right, and there were a number of further grounds to refusal, including deaths of despair, death in a dual, and public sinners who died in impenetence. But because Gibor's ex-communication was invalid, he could not be refused burial. Filamore breaks from the trial decision is in his award. He does not believe the right he identified extends to burial rates. As such, he ordered burial in the consecrated part of the cemetery with no religious ceremony, or else whatever minimal religious ceremony, the church determines is necessary. The Cure and the Thepic were also ordered to pay the now-considerable legal costs. As you might imagine, this award was controversial. It was regarded as Imperial, British, Protestant authorities interfering with matters that were internal to the church. Now, first attempt was made to bury Gibor on September 2, 1875. Rosalo attempted against the order of the JCPC to bury Gibor in un-consecrated soil. Dutre and the Ancestune nevertheless sought to bury Gibor in consecrated soil, in accordance with the Order, with a symbolic British flag on his coffin. This first attempt was stopped by an angry mob of between 1,500 and 3,000 people. The Gazette reports that the crowd borrowed the gates shouting "Il n'entre pas, il n'entre pas, Jésus Christ il n'entre pas, mon Dieu il n'entre pas, vierge il n'entre pas." Far more of a provocation than the British flag would be the detachment of redcoats, along with, quote, "almost the entire Montreal police force," per Clark, which was approximately 2,500 men in total, which would be brought in for a final attempt on November 16th. Dutre had contacted Edward Blake, then Attorney General for the Dominion of Canada, to ask for their presence, which he had launched. This time, though, the party meant no resistance, albeit with about 4,000 spectators. Six years after his death, Josef Gibor was finally laid to rest in his plot in the Notre Dame d'Inée de Cemetery, and a large stone slab laid overtop to prevent tampering. A plaque has since been installed, commemorating Gibor and the Institute's commitment to the promotion of secularism in Quebec. While the Institute was victorious at the Judicial Committee of the Prevy Council, and it did manage to get its manburied, their victory was short-lived. Bulgay, the consul, created the grave, stating that a rebel buried by force of arms laid there. Later that year, the legislature of Quebec passed a law giving the church sole discretion on burials, and the Institute continued its decline. By 1890, the members had sold the building and transferred their library. Neither did ultramanthenism of a particularly long life. The papacy of Leo the 13th, who we note, is the namesake of the current Pope, offered a moderate incorrection to the time of Pice IX. Bulgay would die in 1876 as one of the last of his party in Quebec, albeit with a legacy in stone, in Marie-Faindemont, which we mentioned earlier. What came out of this period was the moderate liberalism of Wilfred Laurie, the young man who attempted to resolve this dispute years before. But he belonged to a different political moment. The Gibor affair is perhaps best-read as a distillation of the particular political conflicts of the 1870s in Quebec, which we hope we have captured for you in this episode. Thanks for listening, and we look forward to reconnecting over a future episode of Time in Morgo.