The Legal Position of the Clergy Part 9

[260] (1856) 19 & 20 Vict. c. 119, s. 12.

[261] Phill. Eccl. Law. 629; Piers _v._ Piers (1849) 2 H. L. C. 331; 13 Jur. 569.

[262] Bryant _v._ Foot (1867) L. R. 2 Q. B. 161; aff. (1868) 3 _Ib._ 497.

[263] 59 Geo. 3, c. 134, s. 11; 6 & 7 Vict. c. 37, s. 15; 19 & 20 Vict.

c. 104, ss. 14, 15.

[264] (1836) 6 & 7 Will. 4. c. 86, ss. 30, 31, 33, 35, 40-44, sch. (C); (1837) 7 Will. 4 & 1 Vict. c. 22, ss. 25-29.

[265] Hyde _v._ Hyde (1866) L. R. 1 P. & D. 130; _Re_ Beth.e.l.l (1888) 38 Ch. D. 220.

[266] Goodman _v._ Goodman (1859) 28 L. J. Ch. 745; The Breadalbane Case (1867) L. R. 1 H. L. Sc. 182; Geary, 140-142.

[267] Ruding _v._ Smith (1821) 2 Hag. Cons. 371, at pp. 390, 391.

[268] Brook _v._ Brook (1861) 9 H. L. C. 193; 4 L. T. N. S. 93.

[269] Reg. _v._ Millis (1844) 10 Cl. & F. 534; 8 Jur. 917; Culling _v._ Culling (1896) P. 116.

CHAPTER VII

BURIAL

1. Every person dying in this country and not within the exceptions mentioned below (-- 3) has a common law right to be buried in the churchyard or burial ground of the parish in which he dies, by the clergyman of the parish.[270] Canon 67 prescribes that besides the pa.s.sing bell (see Ch. VIII. -- 1 below) there shall be rung after a person's death no more than one short peal, and one other before the burial and one other after the burial. If he dies out of his own parish, the persons who are responsible for his burial may claim that he be buried in his own parish.[271] If the clergyman or the persons having charge of the ground refuse interment, the ecclesiastical court is the proper tribunal to give relief, and it will compel the interment. The High Court would also compel it by mandamus.[272] But a parishioner has no right to be buried at a particular hour or (except in the case of a private vault or a prescriptive right to a special spot) in a particular part of the churchyard. The inc.u.mbent can fix his own time for the funeral, and he and the churchwardens can exercise a discretion as to where each body shall be buried.[273] And neither inc.u.mbent nor churchwardens, nor both together, can make a valid sale or grant to individuals or families of a grave-s.p.a.ce in the churchyard for their use in perpetuity. Any such attempted transaction is worthless in point of law. An exclusive right of burial in not more than one-sixth part of land given as an addition to a churchyard may be reserved by the donor to himself, his heirs, and a.s.signs in perpetuity,[274] but with this exception no such exclusive right can be acquired in a spot within a churchyard except by faculty.[275] A person not a parishioner and not dying within the parish can only be buried in the parish churchyard, otherwise than in a private vault, by the favour and with the permission of the inc.u.mbent and churchwardens,[276] or under a faculty obtained from the Ecclesiastical Courts.[277]

2. As regards the burial of bodies cast up on the sh.o.r.e of the sea or of any tidal or navigable water, the rights and duties are the same as if they were the bodies of parishioners of the parish in which they were cast up.[278]

3. Persons are excluded from a right to Christian burial who have not been baptized, or die excommunicate, or have committed suicide and been found _felo-de-se_.[279] Under the Interments (felo de se) Act, 1882,[280] the remains of a person on whom a verdict of _felo de se_ has been pa.s.sed are to be buried under the direction of the coroner in the ground in which they would be rightfully interred if there had been no such verdict, and in one of the ways prescribed or authorised by the Burial Laws Amendment Act, 1880.[281] A clergyman has no right to refuse interment with the full Burial Service to the child of a dissenter,[282] or a person who has only received lay baptism,[283] or has died in a state of intoxication.[284] But a refusal to bury is no offence if the clergyman has not received convenient warning of the intended interment.[285]

4. The inc.u.mbent may refuse to allow a corpse to be carried into church;[286] and, in the absence of a faculty or prescriptive right, the absolute discretion as to permitting or refusing burial under the church itself rests, in the case of an ancient parish church, with the rector, whether lay or spiritual, as regards the chancel, and with the inc.u.mbent as regards the rest of the church.[287] This discretion, for sanitary reasons, is now practically in abeyance. And no burial is permissible beneath a church built under the Church Building Acts or within twenty feet of its external walls.[288]

5. A clergyman cannot make the burial of a parishioner conditional on the payment of a fee.[289] And, in cases not provided for by some local or general statute or by a legally established table of fees, any subsequent right to recover a fee must depend on the immemorial custom of the particular parish.[290] But on the burial of non-parishioners special fees may be previously stipulated for;[291] and the churchwardens may by custom have a right to a portion of the fees for the benefit of the parish or the poor.[292] In the absence of such custom it is reasonable that part of these fees should go to the churchwardens for the benefit of the parish; since the burial of non-parishioners diminishes the s.p.a.ce available for the interment of parishioners. Except where there is an ancient custom to that effect or under the provisions of the Burial or Cemetery Acts, no fee is payable to the inc.u.mbent of a parish in which a person dies who is buried in another parish.[293] The Church Building Act, 1819, enabled the Church Building Commissioners and their successors, the Ecclesiastical Commissioners, to fix a table of burial and other fees for a parish with the consent of the bishop and the vestry, and also for any extra parochial place or district chapelry or parochial chapelry,[294] but this power is not now usually exercised. The chancellor of the diocese is empowered and required to fix the fees for burials and other offices in the churchyards and churches of new parishes,[295] and, sitting as ordinary in the consistory court, he can prescribe the fees to be demanded in an ancient parish for any matter connected with burial which is in excess of the bare common law right of burial, as, for instance, for the privilege of being buried in a brick vault or in an iron coffin.[296] Where a new ecclesiastical parish is formed, and has a churchyard or burial ground, either of its own, or in which its residents have a right to be interred, whether provided ecclesiastically or by a burial authority, it becomes for the purposes of burial a distinct parish from the mother parish, so that the residents in each have no rights of burial in the churchyard or burial ground of the other, and the inc.u.mbent of the mother parish has no right to fees in respect of interments in the churchyard or burial ground of the new parish.[297]

6. A clergyman may use the Burial Service in unconsecrated ground,[298]

and in cases where the Burial Service is not permissible, or where the persons responsible for the burial request it, he may use instead a special form prescribed or approved by the ordinary.[299] On receiving forty-eight hours' previous notice in writing to that effect from a relative, friend, or legal representative of a deceased person ent.i.tled to burial in a churchyard or burial ground, the inc.u.mbent of the parish or chaplain of the ground must permit the interment of the deceased without the performance of the rites of the Church of England, and either without any service at all or with some other Christian and orderly religious service conducted by a person or persons not in holy orders of the Church of England. The notice must state the proposed day and hour of the interment, which may be varied if inconvenient to the person receiving the notice; and he may, on stated grounds, object altogether to its taking place on a Sunday, Good Friday, or Christmas Day. On every such interment the inc.u.mbent or chaplain is ent.i.tled to the same fee, if any, as he would have received if it had been accompanied by the Burial Service.[300]

7. When a clergyman performs a funeral service, the certificate of the registrar of having registered or received notice of the death, or (where there has been a coroner's inquest) the order of the coroner authorising the burial, is to be delivered to him by the person who obtained it; and a clergyman who performs a funeral service without the delivery of such a certificate or order must, within seven days, give written notice of the fact to the registrar of births and deaths for the sub-district in which the death took place; and if he fails to do so, he is liable to a penalty not exceeding 10. In the case of a burial under the Act of 1880 (see -- 6 above) the certificate or order is to be delivered to the relative or friend or legal representative of the deceased who has charge of or is responsible for the burial; and a similar obligation, under a similar penalty, lies on him of giving notice in case no certificate or order is delivered to him.[301]

8. In the case of interments in cemeteries established by special Acts which incorporate the Cemeteries Clauses Consolidation Act, 1847,[302]

or contain similar provisions, the inc.u.mbent and clerk of the ecclesiastical parish from which any bodies are removed for burial are ent.i.tled to receive such fees as are prescribed by the special Act. They are to be accounted for and paid by the cemetery company half-yearly.[303]

9. Owing to the insufficiency of existing burial accommodation and the importance of closing churchyards in the centres of large towns, a series of Burial Acts, together with an Act known as the Public Health (Interments) Act, 1879,[304] have been pa.s.sed from 1852 onwards, enabling burial boards and other local authorities to provide burial grounds. The Acts contemplate that parts of these grounds shall be consecrated and parts remain unconsecrated, and the earlier Acts contemplated the erection of chapels on each of these parts. But questions having arisen as to the amount of discretion possessed by a local burial authority with regard to procuring the consecration of any and what portion of a burial ground acquired by them, an Act was pa.s.sed in 1900 which, after authorising burial authorities to apply to the bishop for the consecration of any part of their burial ground approved by the Home Secretary, added that if a burial authority do not so apply within a reasonable time after being requested to apply, and the Home Secretary is satisfied that a reasonable number of persons within the burial district desire that a portion of the ground be consecrated, and that the consecration fees have been paid or reasonably secured, he may himself apply to the bishop for the consecration of an approved portion of the ground, and the bishop may consecrate it, and the burial authority will be bound to make the necessary arrangements for the consecration.[305] And with regard to chapels, burial authorities are empowered to erect at their own cost, on any part of their burial ground not consecrated or set apart for a particular denomination, a chapel for the joint common use of all denominations. They may also, at the request and cost of residents within the burial district of a particular denomination, erect and maintain a chapel for the funeral services of that denomination on ground appropriated for their use. If a burial authority fail to do this within a reasonable time after the request has been made and the cost has been tendered or adequately secured, the Home Secretary may, if he thinks fit, order and compel the burial authority to erect and maintain the chapel or give facilities for its being done.[306] Where a burial ground has been provided by a local authority under the Burial Acts, the inc.u.mbents, clerks and s.e.xtons, of the ecclesiastical parishes for which the ground has been provided, had, in respect of the burial of inhabitants of those parishes in the consecrated part of the ground, the same right to fees as they had in the churchyard for which the ground is subst.i.tuted, or would have had in that churchyard if it had been the parochial burying place for their respective parishes.[307] And the burial authority were empowered to sell rights of burial in vaults and permit the erection of monuments, with a reservation of such fees to the inc.u.mbent of each parish as he would have been ent.i.tled to in the old churchyard, or as might be fixed by the vestry of the parish with the approval of the bishop.[308] But the law as to fees in these burial grounds was considerably modified by the Burial Act, 1900. Under this Act (i.) burial authorities are to submit to the Home Secretary for his approval, either with or without modification, a table of fees to be received by them (of the same amount in the consecrated and unconsecrated parts of their burial ground) in respect of services rendered by any minister of religion or s.e.xton; and if an authority fails to submit a table, the Home Secretary may himself make one. The fees are to be collected by and payable to the burial authority with their other fees, and are to be paid over to the minister or s.e.xton in such manner as may be agreed upon, or as may be directed by the Home Secretary in default of agreement. (ii.) In the ground of a burial authority no fee in respect of any right of exclusive burial or the erection of a monument or any matter other than services rendered by the inc.u.mbent[309] is to be payable either to the inc.u.mbent or to the churchwardens, or any trustees or other persons to which fees were previously payable by law or custom for any parochial purpose or the discharge of any debt or liability, with the following exceptions, namely: (_a_) where on 10th July 1900 fees other than for services rendered were paid in a burial ground attached to or used for the purposes of a parish, the like fees are to continue payable during the inc.u.mbency of the then inc.u.mbent or during fifteen years from that date, whichever is the longer period, or if they were not paid to the inc.u.mbent or to a person claiming through him, then during fifteen years from that date; and the burial authority are to collect and pay them in like manner as fees for services rendered; and (_b_) the Ecclesiastical Commissioners may, at the request and with the approval of the inc.u.mbent or other interested person, agree with a burial authority for a periodical or other payment in commutation of the fees other than for services rendered; and where the fees are paid to an inc.u.mbent or a person claiming through him, the Ecclesiastical Commissioners are to apply the commutation money in the first instance in compensating the existing inc.u.mbent, and the residue in augmenting the benefice. (iii.) No fee other than fees payable to a s.e.xton for services rendered by him, is to be paid to any clerk or other ecclesiastical officer in respect of interments in the ground of a burial authority; except that a clerk or other ecclesiastical officer who, on 10th July 1900, was ent.i.tled to fees in respect of interments in any such ground, might apply to the burial authority for compensation for their abolition, and they were to pay him such equitable amount of compensation as might be agreed upon or be directed by the Home Secretary in default of agreement. (iv.) The foregoing provisions extend to cases where an annual sum had been subst.i.tuted for fees under 15 & 16 Vict. c. 85, s. 37.[310]

10. A body may be cremated instead of being buried;[311] and a faculty has been granted for the interment of an urn containing the ashes of a cremated body below the floor of a church, in spite of the church and churchyard having been closed for burials under the Burial Acts.[312]

And there is no reason why, upon the committal of cremated ashes to consecrated ground, the Burial Service should not be used as fully as over an uncremated body. But the disinterment, for the sake of being cremated, of a body which has been once buried is not permitted.[313]

11. A body which has been buried in consecrated ground cannot be disinterred for reinterment elsewhere in consecrated ground, except under the authority of a faculty, which will be granted in proper cases upon the pet.i.tion of the representatives of the deceased, with the consent of the inc.u.mbent and churchwardens and a certificate of the local medical officer of health that the proceeding will not be dangerous from a sanitary point of view.[314] And except in the case of removal from one consecrated spot for reinterment in another, a body, or the remains of a body, which has been interred in any place of burial may not be removed without the licence of the Home Secretary and with such precautions as he may prescribe.[315]

Footnotes

[270] Com. Dig. t.i.t. Cemetery (B); Gilbert _v._ Buzzard (1821) 2 Hag.

Cons. 333; R. _v._ Coleridge (1819) 2 B. & Ald. 806; R. _v._ Stewart (1840) 12 A. & E. 773, 777.

[271] Cripps, 759.

[272] Canon 68; Ex pte. Blackmore (1830) 1 B. & Ad. 122; R. _v._ Coleridge, _ubi sup._

[273] Ex pte. Blackmore (1830) 1 B. & Ad. 122; Fryer _v._ Johnson (1755) 2 Wils. 28.

[274] (1867) 30 & 31 Vict. c. 133, ss. 9-11; (1868) 31 & 32 Vict. c. 47.

[275] The churchyard is not merely the property of a single departed generation, but is also the common property of the living and of generations yet unborn, and is subject only to temporary appropriations.

An exclusive t.i.tle to a portion of it is sometimes given by faculty to some family or individual possessing a good claim to be favoured by such a distinction. But even a bricked grave, in the absence of a faculty, is an aggression upon the common interests of the parishioners, and carries the pretensions of the dead to an extent which violates the rights of the living. Per Sir W. Scott (afterwards Lord Stowell), Gilbert _v._ Buzzard (1821) 2 Hag. Cons. 333, at p. 353.

[276] Bardin _v._ Calcott (1789) 1 Hag. Cons. 14, 17; Littlewood _v._ Williams (1815) 6 Taun. 277; Sm. Churchw. 73.

[277] _Re_ Sargent (1890) 15 P. D. 168.

[278] (1808) 48 Geo. 3, c. 75; (1886) 49 & 50 Vict. c. 20; Sm. Churchw.

73.

[279] Canon 68 and Prayer Book Rubric.

[280] 45 & 46 Vict. c. 19.

[281] 43 & 44 Vict. c. 41.

[282] Kemp _v._ Wickes (1809) 3 Phill. 264.

[283] Mastin _v._ Escott (1841) 2 Curt. 692; aff. (1842) 4 Moo. P. C.

104; 6 Jur. 765.

[284] Cooper _v._ Dodd (1850) 14 Jur. 724.

[285] t.i.tchmarsh _v._ Chapman (1843) 7 Jur. 1020; (1844) 8 _Ib._ 626, 1077; (1845) 9 _Ib._ 159.

[286] 1 Burn, 267.

[287] Frances _v._ Ley (1615) Cro. Jac. 366. But the rector cannot grant the exclusive right to a vault; Bryan _v._ Whistler (1828) 8 B. & C.

288.

[288] (1818) 58 Geo. 3, c. 45, s. 80.