Burying in the Church. Edward the Confessor, the ninth bears this title, De non sepeliendo in ecclesiis, and begins with a confession that such a custom had prevailed, but must be now reformed, and no such liberty allowed for the future, unless the person be a priest or some holy man, who by the merits of his past life might deserve such a peculiar favour. However, at the first it was the nave or body of the church that was permitted to be a repository of the dead, and chiefly under arches by the side of the walls. Lanfranc, Archbishop of Canterbury, seems to have been the first who brought up the practice of vaults in chancels, and under the very altars, when he had rebuilt the church of Canterbury, about the year 1075 (c). ["The practice of sepulture has varied with respect to the places where performed. In ancient times caves seem to have been in high request; then gardens or other private demesnes of proprietors; inclosed spaces out of the walls of towns, or by the sides of roads (siste viator); and finally, in Christian countries, churches and churchyards, where the deceased could receive the pious and charitable wishes of the faithful, who resorted thither on the various calls of worship (d)."—ED.] 2. No person may be buried in the church, or in any part of it, without the consent of the incumbent. In some of the [257] foreign canons it is said, "without consent of bishop and in cumbent;" in others, "without consent of bishop or incumbent." But our common law hath given this privilege to the parson only, exclusive of the bishop, in a resolution in the case of Frances and Ley, H. 12 Jac. (e), that neither the ordinary himself nor the churchwardens can grant licence of burying to any within the church, but the parson only; because the soil and freeheld of the church is only in the parson, and in none other. Which right of giving leave will appear to belong to the parson, not as having the freehold (at least not in that respect alone), but in his general capacity of incumbent, and as the person whom the ecclesiastical laws appointed the judge of the fitness or unfitness of this or that person to have the favour of being buried in the church. For anciently (as was said) the burying not only in temples and churches, but even in cities, was expressly prohibited. And afterwards, when the burying in churches came to be allowed and practised, the canon law directeth that none but persons of extraordinary merit shall be buried there; of which merit (and by consequence of the reasonableness of granting or denying that indulgence) the incumbent was in reason the most proper judge, and was accordingly so constituted by the laws of the church, without any regard to the common law notion of the freehold's being in him, which if it proves any thing in the present case, Buzzard, 2 Cons. R. 343; 3 Phill. R. (c) Ken. Par. Ant. 592, 593. (d) [Lord Stowell, in Gilbert v. 348.-ED.] proves too much, that neither without the like leave may they bury in the churchyard, because the freehold of that is also declared to be in him (ƒ). Upon the like foundation of freehold, the common law hath one exception to this necessity of the leave of the parson, namely, where a burying place within the church is prescribed for as belonging to a manor house, the freehold of which they say is in the owner of that house, and that by consequence he hath a good action at law if he is hindered to bury there (g). Yet nevertheless the churchwardens also by custom may have a fee for every burial within the church, by reason the parish is at the charge of repairing the floor (h). But there is good reason that any parishioner, at his discretion, shall not have the liberty of burying there; especially upon account of the health of the inhabitants to be assembled there for religious worship. Chancel. "In our own country, the practice of burying in churches Burying in is said to be anterior to that of burying in what are now called church yards, but was reserved for persons of pre-eminent sanctity of life (i)." But it is much discountenanced by the present policy of the church (k), as injurious both to the stability of the fabric and the health of the parishioners (1) [But a prescription for a right of burial in a chancel, claimed as belonging to a messuage, was allowed in Waring v. Griffiths (m).-ED.] yard. 3. The reason given by Gregory the Great, why it was more Burying in profitable to be buried within the precincts of the church, than the Churchat a distance, was, because their neighbours, as often as they [258] come to those sacred places, remembering those whose sepulchres they behold, do put forth prayers for them unto God. Which reason was afterwards transferred into the body of the canon law. And this superstition of praying for the dead, seems to have been the true original of churchyards, as incompassing or adjoining to the church: which being laid out and inclosed for the common burial places of the respective parishioners, every parishioner hath and always had a right to be buried in them (n). ["About the year 750, spaces of ground adjoining the churches were carefully inclosed, and solemnly consecrated and appropriated to the burial of those who had been entitled to attend divine service in those churches, and who now become entitled to render back into those places their remains to earth, the common mother of mankind, without payment for the ground which they were to occupy, or for the pious offices (f) Gibs. 453. (g) Ibid. (h) Wats. c. 39. (i) [3 Phill. R. 349, Lord Stowell.] (k) [See Rep. of Eccles. Com.] () [See too, 4 Hagg. 174.-ED.] (m) 1 Burr. 440; S. C. 2 Ld. Ken. 183.1 (n) Gib. 453. Concerning church yards, see tit. Church, V. Whether Strangers may be in. which solemnised the act of interment (o)." The Court will not grant a mandamus to compel a rector to bury the corpse of a parishioner in any particular part of a churchyard (p).— ED.] For by the custom of England, any person may be buried in the churchyard of the parish where he dies, without paying any thing for breaking the soil (q). But a fee may be due by prescription or immemorial custon (r). In the case of The King v. Taylor, it was held that information was grantable against a parson for opposing the burial of a parishioner in the churchyard; but as to refusing to read the service over the deceased, because he was never baptised, the court would not interpose; that being a matter cognisable in the ecclesiastical court (s). [But a custom in a parish for the inhabitants to bury as near as possible to their ancestors, is bad (t).-ED.] But ordinarily it seemeth that a person may not be buried in the churchyard of another parish than that wherein he died, buried there at least without the consent of the parishioners or churchwardens, whose parochial right of burial is invaded thereby, and perhaps also of the incumbent whose soil is broken; as in the case of The Churchwardens of Harrow on the Hill, it is said, that upon a process against them some years ago, for suffering strangers to be buried in their churchyard, and their appearing and confessing the charge, they were admonished by the ecclesiastical judge, not to suffer the same for the future. [Lord Stowell, in Bordin v. Calcott (u), says, "The churchwardens have been blamed in argument for allowing strangers to be buried there. This is a permission undoubtedly to be sparingly granted, since there can be no absolute claim of that kind." In Littlewood v. Williams (v), Gibbs, C. J. said, "The counsel for the defendant has been thundering anathemas against the churchwardens, who even with the assent of the vicar shall permit the bodies of strangers to be deposited in their churchyard. If it could be shown that other parishioners sustained actual inconvenience, it might be different; but if there is not that circumstance, the churchwardens have the discretion lodged in them to judge of the probability of it. On the evidence it does not appear that the vicar has ever inferfered to prevent the burial of strangers here; on the contrary, he has buried all who have been brought, but he claims the whole burial fee." (This was the parish of Hendon, in Middlesex. See below "Fees.") A very eminent civilian (the (0) [3 Phill. R. 349, Lord Stowell.] (p) [Ex parte Blackmore, 1 B. & A. 122.] (9) Degge, p. 1, c. 12. (r) Vide infra, 9. ($) Serj. Hill's MSS. (7 D. 278.) late Dr. Harris) gave the following opinion when consulted upon this subject: Civilians as of Burial. necessary, "I apprehend the churchyard of a parish belongs in dif- Opinions ferent ways both to the minister and the churchwardens; for of eminent I take the soil or surface to belong in general to the minister, to the Right and the interior part to the parishioners for burial; and consequently I think that no foreigner or outdweller ought to be buried in the churchyard of the parish mentioned in this case (unless when a traveller or accidental comer happens to die there), without the consent both of the minister and the churchwardens. Neither do I apprehend that the friend or representative of any parishioner can have a right to claim, on the part of the deceased, more ground than may be sufficient for his burial, for the usual and ordinary allowance; and that if a larger portion of ground should be expected, an application ought to be made to the minister and the churchwardens; and that if a vault should be wanted (see below, Vaults,' &c.) by the friends of a deceased person, whether foreigner or parishioner, an application ought to be made to the Bishop's Court When a for a fuculty, which is never granted without decreeing and Faculty is causing public notice to be given to the parishioners of what and how it is intended to be done. I need not now add, that the Rev. obtained. Mr. L. has acted unwarrantably if he persuaded Mr. F. that no other authority than that of the minister was necessary. The process, however, should be taken out against Mr. F. (the stranger who erected the vault) if it is the wish of the churchwardens, either to oblige him to reinstate the churchyard, or to apply for a faculty to confirm what has been done; and the method of proceeding should, I apprehend, be by articles, charging him with having removed the remains of deceased persons, and having dug and bricked a vault of such and such dimensions, without a faculty, &c. As to the neglect of reading prayers on parliamentary holidays and other days, according to the custom of the church, the proceedings should be by articles, and the rector may also be articled against at the same time, for having given leave to make vaults in the churchyard, and having assumed the power and office of the ordinary, by assuring the persons who applied to him, that no other authority than his own was requisite. "GEO. HARRIS. Doctors Commons, 13th Jan. 1780." [So in one of the MS. opinions of Dr. Swabey: "Though the clergyman only has the right of permitting a burial in the church, yet the churchwardens may have a fee for repairing the pavement. The clergyman cannot refuse to bury anybody dying in the parish, which is of right the proper cemetery for their reception, though he may claim his ordinary fee." 1805. -ED.] is to be Whether Burial may be hindered for Debt. [ 259 ] But where a parishioner dieth in his journey, or otherwise, out of the parish, perhaps it may be otherwise as it seemeth to be, where there is a family vault or burying place in the church, or chancel, or aisle thereof. 4. By the civil law, dead bodies ought not to be hindered from burial for debt, as vulgarly supposed; which seemed to be allowed by the law of the Twelve Tables (x). No law of the Twelve Tables handed down to us allows a dead body to be arrested for debt, although a famous law of the third table gave to creditors, according to most interpreters, a singular power of cutting into pieces the body of a living debtor, who after a certain process refused to pay. On the contrary, the tenth table prescribes imperatively the various solemnities which were to be observed in the burial of the dead; and a law of the digest protects from citation even persons who are employed in performing the funeral rites (y). That this, however, had been attempted in later times, probably (to use the expression of Lord Mansfield on another subject) (z), in order to torture the compassion of friends, is apparent from the rescript of the Emperor Justin, which enacts, that obligations entered into on that account shall be void, and inflicts a penalty on those who exact them (a). But Huber, although he is clear that a dead body cannot be kept from burial, thinks that creditors may, by an arrest, prevent the relations of the deceased from carrying the corpse to a distant family monument. His words are, Hactenus religio tenet ne sepultura impediatur; quo minus autem si cognati alio cadavera transferre, monumentisque avitis inferre velint id arresto impediatur nihil obstare videtur, neque non sit aliquando (b). The funeral of Sir Barnard Turner, in 1784, proceeding from London to Hertfordshire, was said to have been stopped by an arrest of his body, till his friends entered into engagements for his debts. But whether this could be done legally may well be doubted; for that such an arrest cannot be made on mesne process, to compel an appearance, is clear from the nature of the thing itself, and from the statute of Geo. 2, quoted by our author; and that a dead body cannot be taken in execution on a capias ad satisfaciendum should appear from this, that though the writ directs the sheriff to have the body of the debtor at Westminster on the day of the return, without specifying whether he be dead or living, yet it states the reason to be in order to satisfy the plaintiff for his debt. But, by the death of the debtor, all his property is vested in others, namely, his heir and personal representatives; he cannot, therefore, satisfy the creditor out of his property, and that his body after (x) Wood, Civ. L. 143, 144; 2 Domat, 628. (y) Dig. 2, 4, 2. (2) Doug. Rep. 696. add. Nov. 60, (which renders the creditors infamous), with the expositions of Cujacius, tom. 3. (b) Prælect. ad Pand. lib. 2, tit. 2, (a) Cod. 9, 19, 6, cum Authen. de Arresto personali, 6. |