CHAP. V.

OF BURIAL.

THE custom of burying in church-yards or parcels of ground attached to the church is supposed to have been brought over to this country from Rome, by Cuthbert, Archbishop of Canterbury, in the year 750, before which time it rarely, if ever, prevailed.

At the first erection of churches, no part of the adjacent land was allotted for the burial of those who frequented divine service therein, but places at a distance, and separated from the residences of the living, were set apart for the interment of the dead. This was agreeable to the old Roman law of the twelve tables (hominem mortuum intra urbem ne sepulite), by which the place of inhumation was without the walls; first, indefinitely by the way side (siste viator), then in some place specially appointed for that purpose. Hence the Augustine monastery was built without the walls of Canterbury (as Ethelbert and Augustine, in both their charters, intimate), that it might be a dormitory to them and their successors, the kings and archbishops, for ever. This practice of remoter burials continued to the age of Gregory the Great, when the monks and priests beginning to offer up masses for souls departed, procured,

for their greater ease and profit, a liberty of sepulture in churches, or in places adjoining thereto (a).

"The most ancient mode of disposing of the bodies of the dead," says Lord Stowell (b), " mentioned by history, is by burial or by burning, of which the former appears to be the more ancient. Many proofs of this occur in the sacred history of the patriarchal ages, in which places of sepulture appear to have been objects of anxious acquirement, and the use of them is distinctly and repeatedly recorded. The example of the divine founder of our religion in the immediate disposal of his own person, imitated by that of his disciples and followers, has confirmed the indulgence of that natural feeling which appears to prevail against the instant and entire dispersion of the body by fire, and has very generally established sepulture as the customary practice of Christian nations." Sir Thomas Brown thus expresses himself, in his quaint but energetic manner, in his treatise upon urn burial. "Men have been fantastical in the singular contrivances of their corporeal dissolution, but the soberest nations have rested on two ways, inhumation and burning. That interment is of the elder date, the examples of Abraham and the Patriarchs are sufficient to illustrate: but Christians have abhorred the way of obsequies by fire; and though they sticked not to give their bodies to be burnt in their lives, detested that mode after death, affecting rather a depositure than an absumption, and conforming themselves to the will of God, which required them to return

(a) Burn's Ec. Law. 1 vol. 354.

(b) Gilbert v. Buzzard and Boyer, 1 Consist. Rep. 341.

again, not to ashes, but unto dust. But burning was not fully disused till Christianity was finally established, which gave the final extinction to these sepulchral bonfires."

The burial of the dead is the clear duty of every parochial priest and minister, and if he neglect or refuse to perform the office, he may, by the express words of the canon (86), be suspended by the ordinary for three months. Also, by the canons of 1603 (68), "No minister shall refuse or delay to bury any corpse that is brought to the church or church-yard, on convenient warning thereof." And this, says Mr. Justice Abney (c), seems a kind of transcript of the old laws. Jus sepulturæ vel sacramenta ecclesiæ nulli denegentur ob defectum pecuniæ.

If any temporal inconvenience arises, as a nuisance, from the neglect of the interment of the dead corpse, he is punishable also by the temporal courts, by indictment or information. Thus the Court of King's Bench, H. 7. Geo. 1., made a rule on Mr. Taylor, rector of Daventry in Northamptonshire, to show cause why an information should not be filed, because he neglected to bury a poor parishioner who died in that parish (d).

The freehold of the church is in the incumbent to some purposes, and so is the freehold of the churchyard, and therefore none can be buried in the church without his leave (for the ordinary or churchwardens cannot licence it); but they may in the church-yard, because it is the burying-place of the parishioners;

(c) Andrews v. Cawthorne, Willes, 536.

(d) Ibid.

and though the parson gives leave to bury in the church,..yet something may be due to the churchwardens by custom for burying there (e).

The parson and churchwardens of St. Botolph's libelled, in the Ecclesiastical Court, against Sir John Ferrers, Knight, alleging that there was a custom within the city of London, and especially within that parish, that if any person dies within that parish, being a man or woman, and be carried out of the said parish and be buried elsewhere, there ought then to be paid to the parson of this parish so much, if he or she were buried in the chancel elsewhere, and so much to the churchwardens, being the sums that they alleged were by custom payable to them, for such as were buried in their own chancel; and then alleging that the wife of Sir John Ferrers died within the said parish, and was carried away and buried in the chancel of another church, and so demanded of him the said sum: whereupon Sir John Ferrers prayed a prohibition, and it was granted; for it is an unreasonable custom that a man should be forced to be buried in the place where he dies, or else to pay for it as if he were, and so upon the matter to pay twice for his burial, which is nothing else than extortion in the parson who demands it and does not officiate; nor is that custom less against reason, that he that is no parishioner, but only passes through a parish in order to his burial, or lies for a night in an inn, should have paid for his passage to the priest that offers the corpse burial (ƒ).

Burial is an inseparable incident of a parochial

(e) Ayliffe, Parerg. 136.

(f) Ibid.

church, and every parishioner is entitled to be buried in the church-yard of the parish of which he was a parishioner, and this too without paying any fee to the parson for breaking up the soil. For fees for burial are not due at common law, although by custom they may be due in some particular places, and are payable sometimes to the churchwardens alone, sometimes to the parson or vicar and the churchwardens jointly.

The burial fees in St. George's Bloomsbury are directed by stat. 3 Geo. 2. c. 19. to be fixed by certain commissioners therein named (g).

Mr. Justice Abney, in his judgment in the case of Andrews and Cawthorne, adverting to the question of fees, said, "It is most clear and certain that, by the common law of England, no fee is, or ever was due for baptism or burials, which is de jure or of common right; and where any fee is due, it must be by the custom of the particular parish or place, which custom, like all other customs (if controverted), is triable and determinable only in the king's temporal courts, by the king's temporal judges. To this purpose I cite," said the learned judge," Bourdeaux v. Dr. Lancaster (h). Bourdeaux, a French protestant, had his child baptized at the French church in the Savoy, and Dr. Lancaster, vicar of St. Martin's in the Fields, in which parish the Savoy was, together with the parish clerk, libelled against him for the fee of 2s. 6d. for the vicar, and Is. for the clerk and per Holt: : no fee is due of common right for baptism or burial; where due, it must

(g) Andrews v. Cawthorne, (h) Hil. 9. W. 3. Salk. 332. Willes, 536,

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