will be enabled to evade this part of the sentence of the Court. At all events, I think the promoter has a right to require this Court to endeavour to enforce the decree for costs which he has obtained in his favour.

Let me here say a word upon the character of the offence of which Mr. Colthurst has been proved to be guilty. I cannot consider it as one of a trivial character. To remove the bones of parishioners from the churchyard into a field where they are to serve the purposes of manure, is a great affront to the feelings of Christian men; a grave violation of the rights of parishioners, as well as plainly contrary to the law of this land. The act is not less liable to this censure, if it be done by a churchwarden, and, as in this case, after he has been apprised of the unlawfulness of such conduct; although Mr. Colthurst may be guiltless, as I have no doubt he was, of any deliberate intention to hurt the feelings of anybody, and may have persuaded himself that no regard for the remains of bodies ought to prevent the making a better pathway to the church. This feeling, however, of respect and pious care for the dead bodies of Christian men is deeply rooted in the inhabitants of an English parish-it is hallowed by many associations, religious and moral, which the law recognises, and which it is the desire of our Church to cherish and promote.

The language of the prayer by which the churchyard is consecrated, while it expresses the mind of the Church, is in harmony with the feelings of the poor as well as the rich parishioner:-" O God, who hast taught us that there is a difference between the spirit of a beast which goeth downwards into the earth, and the spirit of a man that ascendeth up to God who gave it, and likewise by the example of thy holy servants, in all ages, hast taught us to assign peculiar places where the bodies of thy saints may rest in peace and be preserved from all indignities, while their souls are safely kept in the hand of their Redeemer." I need not read more; the remainder of the prayer breathes the same spirit. A great indignity, however unintentional, has been inflicted on the bones of a parishioner in this case, and it is within the especial duty and province of this Court to take care that the indignity, as far as possible, may be repaired. It is contended, however, by the counsel for Mr. Colthurst, that, as he has transferred the field in which he placed the bones and soil to trustees on behalf of Mr. Bromfield, his son-in-law, and that Mr. Bromfield will not permit him to enter such field for the purpose of executing the order of the Court, therefore the Court should decline to enforce its order.

Before noticing the general argument, I think it advisable to

call attention to certain dates and facts as they appear in the evidence.

On the 6th of September in last year, Mr. Colthurst was warned by Mr. Adlam that he was doing an illegal act in removing these bones and soil into his field. Mr. Colthurst continued to remove them, and on the 3d of October transferred by deed this field, with other property, to trustees for the use of his daughter and his son-in-law, Mr. Bromfield. What right had Mr. Colthurst to transfer to anybody this earth and these bones?

The

On the 10th of December the decree issued from this Court, which was the legal commencement of these proceedings. The articles in this suit were filed against Mr. Colthurst on the 9th of January this year. On the 10th of January, a month after the commencement of these proceedings, the trustees leased to Mr. Bromfield (Mr. Colthurst's son-in-law, and one of cestui que trusts) this field, among other property. It is to be observed that these trustees make no opposition to the order of the Court, but state in their affidavit that they have leased the property to Mr. Bromfield. On the 16th of May the Court made its order against Mr. Colthurst. On the 17th of May, Mr. Bromfield writes a letter to his bailiff, showing clearly the concert between him and his father-in-law to set the Court at defiance. monition is served on the 2d of June, and on the 3d of July what I must call a farce is acted by Mr. Colthurst and Mr. Bromfield, who, being in the same house, write letters to each other, evidently for the purpose of being laid before the Court, the father-in-law asking leave to enter the field and remove the bones, the son-in-law refusing him permission. The Court must be blind indeed to be deceived by such devices as these. Moreover it appears that Mr. Bromfield at one time consented to this removal if the costs were not pressed against Mr. Colthurst, and even since the cause was heard a few days ago, Mr. Bromfield has offered to allow a certain portion, but a certain portion only, of the soil and bones to be removed. This he has done, it is said, in consequence of a suggestion from me that I hoped this matter might be arranged out of Court. Apart from these considerations applicable to this particular case, let me now consider the general argument addressed to me by the counsel of Mr. Colthurst, the object of which is to show that this Court has no longer any jurisdiction in this case. argument, carried to its legitimate extent, was stated by the Court, and frankly admitted by the counsel for Mr. Colthurst at the hearing to amount to this, that if a man illegally removed from the consecrated soil of the churchyard all the bones therein interred, including those which, but a few hours before,

This

the pious care of the sorrowing survivor may have reverently placed there, and if this man, before the law can be put in motion against him, transfer to his son-in-law, as in this case, or to any purchaser, the land which has received this sacrilegious deposit, then the parishioners have no redress for the wrong which has been inflicted upon them, perhaps by the churchwarden who was solemnly bound to have protected them from it, then the case is without remedy; this Court, in whose custody the law has placed the church and churchyard, is powerless to enforce the law, to redress the wrong, or to punish the wrong-doer. I hope this is not-I do not believe it to be— the doctrine of our law; until better informed, I will not recognise it to be such. I adopt the language of my predecessor in this Court, Dr. Lushington, when it was suggested to him that Mr. Colthurst would, on this ground, refuse obedience to his decree, inasmuch as he could not comply with it. It was hinted," Dr. Lushington says in his judgment, which I am now required to enforce, "that by possibility an impediment might be raised because the property is not now Mr. Colthurst's. I will not believe that the order of the Court will be so contumaciously resisted. Be that as it may, I shall not be alarmed by that intimation." Nor will I be so alarmed, or be deterred from the endeavour to execute this judgment, by being told that the wrong-doer has, since he has done the wrong, deliberately put it out of his power to redress the wrong.

The

I am not satisfied that it was competent to Mr. Colthurst to transfer to trustees on behalf of his son-in-law and daughter this consecrated earth and soil. Mr. Colthurst could, I presume, only transfer what was his property; this soil, and these bones, were never his property. But if he could, which I do not believe, he must take the consequence of his act. Court has ordered him to replace the bones of the parishioners, and the soil, so far as practicable, of the churchyard, into the parish churchyard from which he illegally took them away. He refuses to obey this order. It only remains for me to enforce, to the best of my power, the lawful order of my predecessor, to pronounce Mr. Colthurst in contempt, and to decree the usual process in such cases. I must, however, add, that I have referred to the various dates of the transactions, to the pleadings, to the admissions, to the correspondence in this case; and this Court must be wholly bereft of common sense if it doubted that Mr. Colthurst, and his son-in-law, the lessee of this land on which the bones have been placed, have been concerting measures together in order to evade the execution of the decree of this Court. I have not the least doubt that Mr. Colthurst's son-in-law would not oppose the wish of Mr. Col

thurst to replace these bones, if he did not know that no such wish was entertained. Indeed, it is not denied that if the costs had been remitted, the bones would have been replaced. Be this as it may, this Court will protect, as far as it can, the right of parishioners to preserve undesecrated the bodies of those who have slept in peace in their churchyard. It is incumbent on me, therefore, to grant the prayer of the promoter, and to decree accordingly.

But having discharged my duty in delivering this judgment, I have still two remarks to which I desire to draw the attention of counsel. First, upon the general subject of alterations in churches and churchyards. If a faculty had been applied for, as it ought to have been in this instance, the objections of the parishioners would have been heard, the law would have been explained, the Ordinary would have given proper directions with respect to the decent arrangement of the bones and the earth, -all the expenses of this suit would have been saved, and all the strife in the parish avoided. Secondly, with respect to this particular case (and here I would specially invite the attention of the counsel of Mr. Colthurst), I still think it possible that the necessity of sending Mr. Colthurst to prison for contempt of Court may be avoided. It has occurred to me that if both parties were to consent that the archdeacon or the rural dean should superintend the removal of the earth and bones back into the churchyard, any difficulties respecting the quantum of earth to be replaced, together with the bones, might be avoided; and also, by this intervention of a third person clothed with an official character, all feelings of bitterness between the parties might be removed, and the peace of the parish restored, and in that case the archdeacon or rural dean might certify to the Court generally that, in his opinion, the order of the Court had been sufficiently complied with.

I earnestly press this suggestion upon both parties in this case. If I receive proper intimation that it will be complied with, I will not decree the contumacy and contempt of the defendant to be formally recorded upon the minutes of the Court; and upon receiving the certificate from the archdeacon or rural dean I will dismiss the suit. In the hope that this suggestion may be adopted, I will suspend for six days the formal pronouncing the defendant to have been guilty of contumacy and contempt; but after the lapse of that time, if I receive no such intimation, I shall, without further proceeding in Court of any kind, pronounce the defendant contumacious and in contempt, and signify the same to the High Court of Chancery of England.

THE OFFICE OF THE JUDGE PROMOTED BY

MARTIN v. MACKONOCHIE,

AND BY

FLAMANK v. SIMPSON.

What are Rites and Ceremonies considered-The sources of the Law applicable to them, and the criteria of their lawfulness :

(1.) It is not lawful to elevate the Cup and Paten during the Celebration of the Holy Communion in a greater degree than is necessary to comply with the Rubric.

(2.) It is not lawful to use incense for censing persons and things, or to bring in incense at the beginning of or during the Celebration, and to remove it at the end of the Celebration.

(3.) It is not lawful to mix water with the wine during the Celebration.

(4.) It is not lawful to place alms on a stool instead of on the Holy Table.

(5.) It is not unlawful for the Celebrant to kneel during the prayer of Consecration, at least unless the Bishop has in his discretion made an order forbidding it.

(6.) It is lawful to place two lights upon the Holy Table during the Celebration.

THESE cases were heard together, and I gave one judgment on them on March 28, 1868.

There was no appeal from my judgment on points (1), (2), (3), and (4). On (5) and (6) there was an