CHAPTER IX.

VISITATION AND COMMUNION OF THE SICK.

Visitation of As to the visitation and administration of the holy communion to the sick, the following rules are laid down by the church.

the sick.

Canon 67.

Rubrics.

Communion

of the sick.

By Can. 67 of 1603, "When any person is dangerously sick in any parish, the minister or curate, having knowledge thereof shall resort unto him or her, (if the disease be not known or probably suspected to be infectious), to instruct or comfort them in their distress, according to the order of the communion book, if he be no preacher, or if he be a preacher, then as he shall think most needful and convenient. And when any is passing out of this life, a bell shall be tolled, and the minister shall not then slack to do his last duty. And after the party's death, if it so fall out, there shall be rung no more than one short peal, and one other before the burial, and one other after the burial."

And by the rubric before the office for the visitation of the sick, "when any person is sick notice shall be given thereof to the minister of the parish," who shall go to the sick person's house, and use the office there appointed.

By other rubrics the minister shall examine the sick person "whether he repent him truly of his sins, and be in charity with all the world; exhorting him to forgive from the bottom of his heart, all persons that have offended him; and if he hath offended any other, to ask them forgiveness; and where he hath done injury or wrong to any man, that he make amends to the uttermost of his power. And if he hath not before disposed of his goods, let him then be admonished to make his will, and to declare his debts, what he oweth and what is owing to him, for the better discharge of his conscience and the quietness of his executors. But men should often be put in remembrance to take order for the settling of their temporal estates whilst they are in health."

And "the minister should not omit earnestly to move such sick persons as are of ability to be liberal to the poor."

As to the special confession of his sins which the sick man is to be moved to make in certain cases, see the chapter on Confession (a).

By a constitution of Archbishop Peccham, the sacrament of the eucharist shall be carried with due reverence to the sick, the

(a) Part III. Chap. VI., supra.

priest having on at least a surplice and stole, with a light carried before him in a lantern with a bell, that the people may be excited with due reverence, who by the minister's discretion shall be taught to prostrate themselves, or at least to make humble adoration wheresoever the King of Glory shall happen to be carried under the cover of bread (b).

But by the rubric of the Prayer Book of 2 Edw. 6, it was ordered that there shall be no elevation of the host, or showing the sacrament to the people.

By the present rubric before the office of the communion of Rubrics. the sick it is ordered as follows: "Forasmuch as all mortal men be subject to many sudden perils, diseases, and sicknesses, and ever uncertain what time they shall depart out of this life; therefore to the intent they may be always in a readiness to die whensoever it shall please Almighty God to call them, curates shall diligently from time to time (but especially in the time of pestilence or other infectious sickness) exhort their parishioners to the often receiving of the holy communion of the body and blood of our Saviour Christ, when it shall be publicly administered in the church; that so doing they may, in case of sudden visitation, have the less cause to be disquieted for lack of the same. But if the sick person be not able to come to the church, and yet is desirous to receive the communion in his house, then he must give timely notice to the curate, signifying also how many there are to communicate with him (which shall be three, or two at the least); and having a convenient place in the sick man's house, with all things necessary so prepared that the curate may reverently minister, he shall there celebrate the holy communion.

By the rubrics at the end of the same service: "But if a man, either by reason of extremity of sickness, or for want of warning in due time to the curate, or for lack of company to receive with him, or by any other just impediment, do not receive the sacrament of Christ's body and blood, the curate shall instruct him, that if he do truly repent him of his sins, and stedfastly believe that Jesus Christ hath suffered death upon the cross for him, and shed his blood for his redemption, earnestly remembering the benefits he hath thereby, and giving him hearty thanks therefore, he doth eat and drink the body and blood of our Saviour Christ profitably to his soul's health, although he do not receive the sacrament with his mouth."

"In the time of the plague, sweat, or other such like contagious times of sickness or diseases, when none of the parish can be gotten to communicate with the sick in their houses, for fear of the infection, upon special request of the diseased, the minister may only communicate with him."

(b) Lind. p. 249.

CHAPTER X.

BURIAL.

SECT. 1.-Places of Burial.

2.-The Acts for Cemeteries and Burial Grounds.
3.-Service of Burial.

4.-Fees on Burial.

5.-Mortuaries.

6.- Protection of the Dead.

7.-Monuments of the Dead.

8.-Prayers for the Dead.

9.-The Burial Laws Amendment Act, 1880.

In ancient times.

Early Christian practice.

SECT. 1.-Places of Burial.

ALL civilized nations (a) have set apart from profane uses the burial places of the dead, and have interred them with some religious rites.

The old Romans sometimes showed their respect for the dead by burying them in their houses; but the law of the Twelve Tables prescribed their burial without the walls of the city.

Sometimes they burnt, sometimes they buried their dead. The primitive Christians (b), looking upon their bodies as the temples of the Holy Ghost, rejected the usage of burning, and buried their dead with special religious ceremonies.

According to the general canon law (c), the usual place of burial is the church or churchyard of the parish in which the deceased person lived. And the rites to be observed are those which obtain in that parish and diocese. Exceptions of family vaults and burial places have been engrafted on this rule.

In early times all fees for burial were forbidden as simoniacal; then free offerings came to be made, and in the last stage custom introduced a regular fee.

The right to burial was founded on the dead man having while alive been a member of the Christian community; and

(a) Müller, Lexicon des Kirchenrechts, tit. Begräbniss; Walter Lehrbuch, tit. Von dem Christlichen Begräbniss.

(b) Origen, Op. Omn. vol. i. Contra Celsum lib. viii.; Augustine,

Opera, vol. ii., De Civitate Dei, lib. i. c. 13; Tertullian, De Animâ, c. 51; cited by Müller.

(c) X. iii. 28; VI. iii. 12; Clement, iii. 7; Extra. iii. 6; De Sepulturis.

therefore infideles, unbelievers, heretics and their abettors, schismatics, those under an interdict, and the excommunicated, were denied this privilege.

It has been said, that the usual place of burial of the dead was Place of the church or churchyard. But the practice of burying within burial. the churches did (though more rarely) obtain before the use of churchyards, but was by authority restrained when churchyards were frequent and appropriated to that use. For among those canons which seem to have been made before 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 (d).

"The practice of sepulture has also 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" (e).

the church.

No person may be buried in the church, or in any part of it, Burying in without the consent of the incumbent. In some of the foreign canons it is said, "without consent of bishop and incumbent;' in others, "without consent of bishop or incumbent." But our common law has given this privilege to the parson only, exclusive of the bishop, in a resolution in the case of Frances v. Ley, in 12 Jac. I. (f), 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 freehold 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,

Burying in the chancel.

Rugg v.
Kingsmill.

and practised, the canon law directs 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 being in him, which if it proves anything in the present case, 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 (g).

Upon the like foundation of freehold, the common law has 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 has a good action at law if he is hindered to bury there (h).

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 (i).

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.

"In our own country, the practice of burying in churches 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" (k). But it is much discountenanced by the present policy of the church (7), as injurious both to the stability of the fabric and the health of the parishioners (m).

But a prescription for a right of burial in a chancel, claimed as belonging to a messuage, was allowed in Waring v. Griffiths (n).

In the case of Rugg v. Kingsmill (o), a faculty for the appropriation of a family vault under the chancel of a district church, having been applied for by the lay proprietor of the great tithes, and the owner of the land immediately adjacent to and in the vicinity of the church, was objected to by the vicar of the parish, because, among other reasons, the access to it being only from the exterior, and no churchyard or burial ground attached, there was no consecrated ground outside the church on which any part of the burial service could be performed; such faculty was, however, granted by the ordinary, and the grant thereof confirmed on appeal by the judge of the Arches Court:-it was

(g) Gibs. p. 453.

(h) Ibid.

(i) Wats. c. 39, p. 387.

(k) Lord Stowell, in Gilbert v. Buzzard, 3 Phillim. p. 349.

(1) See Ecclesiastical Courts Commission, 1832, p. 72.

(m) See too Rich v. Bushnell, 4 Hagg. Eccl. p. 174.

(n) 1 Burr. p. 440; S. C., 2 Ld. Ken. p. 183.

(0) L. R. 1 Adm. & Eccl. p. 343; 2 P. C. p. 59.