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

passing 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 incumbent 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 incumbent nor

churchwardens, nor both together, can make a valid sale or grant to

individuals or families of a grave-space 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 assigns 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 incumbent and churchwardens,[276] or under a faculty obtained

from the Ecclesiastical Courts.[277]

2. As regards the burial of bodies cast up on the shore 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 passed 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 incumbent 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 incumbent

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 space 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 incumbent 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 incumbent 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 entitled

to burial in a churchyard or burial ground, the incumbent 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 incumbent or chaplain is entitled 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 incumbent and clerk of the

ecclesiastical parish from which any bodies are removed for burial are

entitled 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 passed 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 passed

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 incumbents, clerks and sextons, 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 substituted, 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 incumbent of each parish as he

would have been entitled 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 sexton; 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 sexton 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 incumbent[309] is to be payable either to the incumbent 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

incumbency of the then incumbent or during fifteen years from that date,

whichever is the longer period, or if they were not paid to the

incumbent 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 incumbent

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 incumbent or a

person claiming through him, the Ecclesiastical Commissioners are to

apply the commutation money in the first instance in compensating the

existing incumbent, and the residue in augmenting the benefice. (iii.)

No fee other than fees payable to a sexton 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 entitled 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

substituted 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 petition of the representatives of the deceased, with the

consent of the incumbent 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. tit. 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 title 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] Titchmarsh _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.

[289] Gilbert _v._ Buzzard (1821) 2 Hag. Cons. 333.

[290] Andrews _v._ Cawthorne (1745) Willes 536; Gibs. Cod. 453; Spry

_v._ Marylebone (1839) 2 Curt. 5, 11; Spry _v._ Gallop (1847) 16 M. & W.

716; Bryant _v._ Foot (1868) 37 L. J. Q. B. 217.

[291] Nevill _v._ Bridger (1874) L. R. 9 Ex. 214; 43 L. J. Ex. 147.

[292] Littlewood _v._ Williams (1815) 6 Taun. 277; 1 Marsh. 589.

[293] Gibs. Cod. 452.

[294] 59 Geo. 3, c. 134, s. 11.

[295] (1843) 6 & 7 Vict. c. 37, s. 15; see (1856) 19 & 20 Vict. c. 104,

ss. 14, 15.

[296] Gilbert _v._ Buzzard (1821) 2 Hag. Cons. 333.

[297] Cronshaw _v._ Wigan Burial Board (1873) L. R. 8 Q. B 217; Hughes

_v._ Lloyd (1888) 22 Q. B. D. 157.

[298] Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), s. 12.

[299] _Ib._ s. 13.

[300] Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), ss. 1-8.

[301] (1874) 37 & 38 Vict. c. 88, ss. 17, 49; (1880) 43 & 44 Vict. c.

41, s. 11; (1881) 44 & 45 Vict. c. 2.

[302] 10 & 11 Vict. c. 65.

[303] _Ib._ sects. 52-57; Vaughan _v._ South Metropolitan Cemetery Co.

(1860) 1 J. & H. 256; 30 L. J. Ch. 265; Bowyer _v._ Stantial (1878) 3

Ex. D. 315.

[304] 42 & 43 Vict. c. 31.

[305] 63 & 64 Vict. c. 15 (Burial), s. 1.

[306] 63 & 64 Vict. c. 15 (Burial), s. 2.

[307] (1852) 15 & 16 Vict. c. 85, s. 32; (1857) 20 & 21 Vict. c. 81, s.

5; St. Margaret's Rochester Burial Board _v._ Thompson (1871) L. R. 6 C.

P. 445; Gell _v._ Mayor of Birmingham (1864) 10 L. T. N. S. 497; Day

_v._ Barnsley Burial Board (1865) 6 N. R. 156; Cronshaw _v._ Wigan

Burial Board (1873) L. R. 8 Q. B. 217; 42 L. J. Q. B. 137; Ormerod _v._

Blackburn Burial Board (1873) 21 W. R. 539; White _v._ Norwood Burial

Board (1885) 16 Q. B. D. 58; Stewart _v._ West Derby Burial Board (1886)

34 Ch. D. 314; Wood _v._ Headingley-cum-Burley Burial Board (1892) 1 Q.

B. 713.

[308] (1852) 15 & 16 Vict. c. 87, s. 33.

[309] This will include services rendered by a clergyman acting for the

incumbent, as well as by the incumbent himself. See 15 & 16 Vict. c. 85,

s. 32.

[310] 63 & 64 Vict. c. 15, s. 3.

[311] Reg. _v._ Price (1884) 12 Q. B. D. 247.

[312] _Re_ Kerr (1894) P. 284.

[313] _Re_ Dixon (1892) P. 386.

[314] Gibs. Cod. 454; Reg. _v._ Sharpe (1857) 26 L. J. M. C. 47.

[315] (1857) 20 & 21 Vict. c. 81 (Burial), s. 25.

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