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.