a chapelry having its own registers under sect. 4 of the act, the form of certificate of burial is as follows: "I "SCHEDULE D. do hereby certify that on the day A. B. of aged was buried in [stating the place of burial], By 37 & 38 Vict. c. 88, s. 17, a coroner, upon holding an 37 & 38 Vict. inquest, may order a body to be buried before registry of the c. 88. death; and the registrar, upon registering a death or receiving a written requisition to attend and register a death, or upon receiving written notice of a death accompanied by a medical certificate, shall give a certificate that he has registered or received notice of the death, as the case may be. The section then provides as follows: registrar. "The person who buries or performs any funeral or religious In what cases service for the burial of any dead body, as to which no order or notice to be certificate under this section is delivered to him, shall, within given to seven days after the burial, give notice thereof in writing to the registrar, and if he fail so to do shall be liable to a penalty not exceeding ten pounds.' Sect. 18 of the same act makes provision for the burial of Still-born still-born children. The registration of burials in cemeteries under 10 & 11 Vict. c. 65, has been already mentioned (u). children. SECT. 4.-Fees on Burial. because of Archbishop Langton. "We do firmly enjoin that burial. . . shall not be denied to Constitution any one, upon the account of any sum of money; if anything hath been accustomed to be given by the pious devotion of the faithful, we will that justice be done thereupon to the churches by the ordinary of the place afterwards" (x). Shall not be denied.]—Or delayed (y). Upon the account of any sum of money.]-For burial ought not to be sold: but albeit the clergy may not demand anything for burial, yet the laity may be compelled to observe pious and laudable customs. But in such case the clerk must not demand anything for the ground, or for the office; but if he shall allege, that for every dead person so much has been accustomed to be given to the minister or to the church, he shall recover it (z). As to fee on person dying in a parish. Hath been accustomed to be given.]-That is, of old, and for so long time as will create a prescription, although at first given voluntarily. For they who have paid so long are presumed at first to have bound themselves voluntarily thereunto (a). In Topsall v. Ferrers (15 Jac. 1), Edward Topsall, parson of St. Botolph's without Aldersgate, London, and the churchwardens of the same, libelled in the ecclesiastical court against Sir John Ferrers, and alleged that there was a custom within the city of London, and especially within that parish, that if any person being man or woman die within that parish, and be carried out of the parish to be buried elsewhere, in such case there ought to be paid to the parson of this parish if he or she be buried elsewhere in the chancel so much, and to the churchwardens so much, being the sums that they alleged were by custom payable unto them for such as were buried in their own chancel; and then alleging that the wife of Sir John Ferrers died within the parish, and was carried away and buried in the chancel of another church, and so demanded of him the said sum. Whereupon for Sir John Ferrers a prohibition was prayed, and upon debate it was granted, for this custom is against reason, that he that is no parishioner, but may pass through the parish, or lie in an inn for that night, should if he then die be forced to be buried there, or to pay as if he were, and so upon the matter to pay twice for his burial (b). The case is cited by Sir G. Lee in a very learned judgment, in Patten v. Castleman, where he decided that the claim of a vicar for a fee on the wedding of one of his parishioners in the church of another parish, would not be substantiated, on the general principle of law, that where no service is done no fee can be due (c). But Dr. Gibson says, a fee for burial belongs to the minister of the parish in which the party deceased heard divine service, and received sacraments, wheresoever the corpse be buried. And this, he observes, is agreeable to the rule of the canon law, which says that every one, after the manner of the patriarchs, shall be buried in the sepulchre of his fathers; nevertheless, that if any one desires to be buried elsewhere, the same shall not be hindered, provided that the accustomed fee be paid to the minister of the parish where he died, or at least a third part of what shall be given to the place where he shall be buried. For the understanding of which it is to be noted, that anciently all persons in their wills made a special oblation or bequest to the church at which they were to be interred; and the people in those days depending much upon the prayers of the living for the good of their souls after death, those of better condition coveted oftentimes to be buried in religious houses, with a view to greater assistances which they hoped to receive from the solemn and constant devotions there: also, where the oblations were likely to be plentiful, the religious were led by that prospect to desire and promote it. By which means parochial ministers would have been deprived of what belonged of common right to them, and to no other; if the laws which indulged them in being buried in religious houses, had not at the same time provided for the ancient parochial rights; which sometimes was the third, sometimes the fourth part (according to the customs of different places) of what was given to the religious houses: the laws probably presuming, that the oblations to those houses would be much larger than what was usually given to the parochial ministers (d). And this was called the canonical portion; and the oblation grew by custom into a fixed right of the parish minister. And hence it is, that in dispensations for burying elsewhere, reservations have been made of the rights of those churches where the parties die. And (to take off the weight in some measure of the case of Topsall v. Ferrers) he says, that this right was not denied, but seemingly acknowledged, by the temporal court in the aforesaid case, where the suit by the rector and churchwardens of St. Botolph's, Aldersgate, was for the customary fee of burying in the chancel there, because the person died in their parish, and was buried in the chancel elsewhere. For though a prohibition was granted because the custom was unreasonable, yet that unreasonableness (he says) was grounded upon the person's being only a stranger, and happening to die in the parish. For so the report itself expresses the ground of the prohibition. "This custom is against reason, that he who is no parishioner, but may pass through the parish, or lie in an inn for a night, should be forced to be buried there, or pay as if he were.' Which is in effect a recognition of the right, in case the party deceased has dwelling in the parish, and is a parishioner (e). Mr. Fraser (f) remarks that this does not so well agree with the last words of the recited case, which supposes it to be unreasonable for a man to pay twice for his burial; and so the matter seems to rest. Coming now to fees on actual burials, Sir Simon Degge says, Fee for that the accustomed fee to the parson for breaking the soil in burial within the church, is for the most part 3s. 4d. and for breaking the floor in the chancel 68. 8d. (g). church. In Andrews v. Cawthorne (h), it is laid down that the vicar is Fee for burial not entitled, either by the common or canon law, to demand a in churchyard fee for burying in the churchyard, although such a fee may be due by special custom. Not only the obligation to pay fees, but the proportion of fees due for the burial of persons, whether to the incumbent or (d) Gibs. p. 452. (e) Ibid. ƒ) Editor of 6th and 7th editions of Burn's Eccl. Law, 1797 and 1809. Degge, pt. 1, c. 12. only due by custom. How custom to be ascertained. In some cases fixes amount of fees. churchwardens depends upon the particular usage and custom of each parish respectively. For as to the incumbent for burying, the foundation of the fee was voluntary, and the obligation or necessity of paying arises from custom; which is the ground of what is before observed out of Lindwood. But although the rule of the canon law is, that in case of denial of the customary fee justice is to be done by the ordinary, and though the books of the common law allow this to be in its nature a matter properly of spiritual cognizance, yet it is a very great abatement from that allowance that the temporal courts reserve to themselves the right of determining, first, whether there is such a custom, in case that is denied; and, secondly, whether it is a reasonable custom in case the custom itself is acknowledged. Upon the first of these heads, a prohibition was granted in the case of Andrews v. Symson (i), in 27 Car. 2. And we find other prohibitions also granted, as where the church of Westminster, for burying in the abbey, demanded 507. (k) and the cathedral of York 51. (1), and the cathedral of Exeter 107. (m), over and above the common fees. But here it is to be observed that in the foregoing case of Andrews v. Symson, the demand was a fee of four nobles for a parishioner, and of four marks for a stranger; which proportion and difference were not excepted against by the court as unreasonable, but (as has been said) the prohibition went only because the custom was denied (n). In Gilbert v. Buzzard (0), Lord Stowell said, "Very ancient the ordinary Canons forbid the taking of money for interment, upon the notion that consecrated grounds are among the 'res sacra,' and that money payments for them were therefore acts of a simoniacal complexion; but this has not been the way of considering that matter since the Reformation, for the practice goes up at least nearly as far; it appears founded upon reasonable considerations, and is subjected to the proper controul of an authority of inspection. In populous parishes, where funerals are very frequent, the expense of keeping churchyards in an orderly and seemly condition, is not small, and that of purchasing new ones, when the old ones become surcharged, is extremely oppressive. To answer such charges both certain and contingent, it surely is not unreasonable that the actual use should contribute when it is called for. At the same time, the parishes are not left to carve for themselves in imposing these rates; they are all submitted to the examination of the ordinary, who exercises his judgment and expresses the result by a confirmation of their propriety in terms of very guarded caution. It is, perhaps not (i) 3 Keb. p. 523. (k) Gibs. p. 453. (1) Frain v. Dean and Chapter of York, 2 Keb. p. 778. (m) Dean and Chapter of Exeter's case, 1 Salk. p. 333. (n) Gibs. p. 453. (0) 3 Phillim. p. 335; 2 Consist. p. 338. easy to say where the authority could be more properly lodged or more conveniently exercised." Lord Stowell, acting as chancellor for the diocese of London, adjusted the table of burial fees in St. Andrews, Holborn (p). hood of In an anonymous case in 2 Shower, 134, it is said, that in Fees in the the neighbourhood of London, the churchwardens are entitled neighbourto the money for burying in the church or churchyard; the London. parson's right being confined to the chancel. In Gilbert v. Buzzard, Lord Stowell says, "An objection was taken to the application of the fee, as stated in the table. ... The objection to the incumbent's proportion, seems entirely to forget that by the general law it is the incumbent who has the freehold of the soil of the churchyard, though provided originally by the parish. By acquiescence, confirmed by usage, parishes in this Town and neighbourhood have acquired concurrent rights, into the validity of which it is quite unnecessary and improper for me to enquire." In Littlewood v. Williams (q), it was proved that a practice had prevailed in the parish of Hendon, during the incumbency of several vicars, that upon the burial of any stranger certain fees should be paid, of which the vicar took one moiety, and the churchwardens the other for the use of the poor. The fees were paid to the sexton, who paid over the moieties to the use of the respective parties. A new vicar refused to accede to this arrangement; he buried several strangers, and made the sexton pay over the entire fees to himself, and it was holden that the churchwardens might in an action for money had and received recover one moiety to their use. in Case. In January 18, 1839, Dr. Spry proceeded in the Con- Dr. Spry's sistory Court of London, against the guardians of the poor Marylebone, for refusing to pay the burial fees of paupers to the rector of the parish. The judge said, that "it was clear that the ecclesiastical courts had been permitted to exercise some jurisdiction on the subject, because the courts of common law, where prohibition had been moved for, had not granted it, on the general ground that these courts were wholly incompetent to hold pleas on the subject-matter but on special grounds (r). Prohibition has been granted because the fee was not accustomed and certain, and the ecclesiastical court would not try the custom where it was denied. The granting prohibition for special reasons establishes the existence of the jurisdiction which is recognized by the statute Circumspectè agatis. This court is allowed to enforce fees to clergymen for spiritual duties due by custom, the duty being actually performed (s). By customary fees are meant such as have existed so long that their origin (p) Gilbert v. Buzzard, 2 Consist. p. 333. (9) 6 Taun. p. 276; 1 Marsh. p. 589. (r) Burdeaux v. Lancaster, 1 Salk. p. 332; Topsall v. Ferrers, Hob. p. 175. (8) 3 Black. Com. p. 90. |