burials question 00 her v

7/29/2019 Burials Question 00 Her V

1/38

'4I-4'^^

%


2/38

L I B R A R.YOF THLU N I V t R51TYor ILLINOIS


3/38


4/38


5/38

THE

/i

BURIALS QUESTION.BY

LORD FRANCIS HERVEY, M.P.

REPRINTED, WITH ADDITIONS AND CORllECTIONS, FROM APAPER WRITTEN FOR THE ARCHIDIACONAL CONFERENCE

HELD AT BURY ST. EDMUNDS, OCT. 22, iS75.

LONDON:W. RIDGWAY, 169, PICCADILLY, W.C.

Vvice One Shilling.


6/38


7/38

BURIALSThe law relating to interment may be gathered

from tlie following authorities collected, or ratherdispersed, in Sir R. Phillimore's '^EcclesiasticalLaw" :

" By the custom of England any person may J^egge, p.be buried in the churchyard of the parish wherehe died.'^

" Every person dyinp; in the country and not Reg. v.' T . ? 1 1 M . . -11 Stewart,withm certam ecclesiastical prohibitions, is entitled 12 a. &

E. 773.to Christian Burial."" I take the soil or surface to belong in general -^^^^q^^^

to the minister, and the interior part to theparishioners for burial."

'^ The clergyman cannot refuse to bury anybody Dr.Swabeydying in the parish, which {sic) is of right theproper cemetery for their {sic) reception."

" Burial in the parish churchyard is a Common R- v.T ' 1 ' 1 . 1 . 1 7 Coleridge,Law right inherent in the parishioners. 2B.&Aid.

It should be observed, and may be regretted,that Sir E. Phillimore, in preserving from oblivionthe opinions of Dr. Harris and Dr. Swabey, (thelatter of whom does not seem to have been an

1


8/38

expert grammarian, however eminent he may havebeen as a civihan,) has omitted to find space forthe opinion of Lord Comyn. That great authoritystates the rule of law as follows :

Comyn's " Every person (who may have Christian burial),Cemetery, may have burial in the churchyard where he dies,

by the general custom of England."Correlative to the right of interment vested in

the deceased person, or, if it seem paradoxical tospeak of rights belonging to the dead, correlativeto the right of his family or friends to have theirdead buried, is the duty, also derived from theCommon Law, of disposing of the corpse. It seemsthat

Reg. V. " Every householder in whose house a dead12 A. &E. body lies is bound by the Common Law to inter

the body decently .''A question of great importance has been raisedas to the nature and extent of the right of anindividual to sepulture in the churchyard of theparish in which he lived. Mr. Osborne Morgan,in movins: the second reading: of the Burials Billin 1873, is reported to have said that

Hansard, " Evcry pcrsou wlio lias gained a settlement inthe parish, be he Jew, infidel, or heretic, has thesame right of interment in the churchyard of hisparish as . . . the most orthodox Churchmen."

It is plain therefore that Mr. Morgan believesin the existence of a legal right to bare intermentin the parish churchyard, distinct from the right

March 261873.

UIUC


9/38

to interment (to use the words of the 68th Canonof 1603), " in such manner and form as is pre-scribed in the (said) Book of Common Prayer."But of the existence of this supposed right to

bare interment without the burial office, whatevidence is there ? In the Book of Church Lawit is laid down that ^' no person may be 'buried inthe churchyard without the full Burial Servicebeing performed." And in Sir R. Phillimore'swork; Sir John Nicholl is cited as holding that'^ Our Church knows no such indecency as Kemp v.putting the body into the consecrated ground phui.^295.without the Service being at the same time per-formed."

But let us push our inquiries into this matter alittle further. The rubric at the head of the Orderfor the Burial of the Dead enjoins as follows :" Here it is to be noted that the office ensuing Eubric.is not to be used for any that die unbaptized, orexcommunicate, or have laid violent hands uponthemselves."

ISTow, if Mr. Morgan's theory of a bare right ofinterment be correct, it would follow that personsfalling within any of the categories above men-tioned, though not entitled to have the BurialService performed over their remains, would yetbe entitled to a resting place in the parish church-yard.How stand the facts ?1. First, let us take the case of suicides. Black- Voi. iv.


10/38

stone in liis "Commentaries" asks the question,'^ what pmiishment can hmnan laws inflict on onewho has withdrawn himself from their reach?They can only act," he replies, '^ upon what hehas left behind himhis reputation and fortune."^' The law of England,'' he goes on to say, "actson the former by an ignominious burial in the highicay with a stake driven through his body." It

4Gco. IV. ^vas not until the reign of George lY. that thissavage custom was abolished, and that the bodyof the suicide was authorized to be interredsilently and at night in the churchyard, to aplace in which Mr. Morgan thinks every parish-ioner is entitled by the Common Law. In pursu-ance of this argument, it may be interesting to

"Hamlet," examine the scene in " Hamlet" where the burialact V. sc. . ^ Ophelia takes place. The coroner's inquest

had resulted in a verdict favourable to thedeceased. The clergy, it would seem, entertaineda less indulgent view of the manner in whichOphelia had come by her death. Hamlet notesthe " maimed rites," and instantly divines thecause. Laertes asks, '' What ceremony else ?" andgets for answer that no more may be done, andthat his sister was not entitled to so much. Butfor extreme pressure put upon the ecclesiasticalauthorities

" She should in gro7md unsanctified have lodgedTill the last trumpet ; for charitable prayers,Shards, flints, and pebbles should be thrown on her."


11/38

2. This leads lis to consider next the case ofpersons excommunicate. "Everywhere," writesMr. Hallam, '' the excommunicated were debarred Middleof a regular sepulture, which, though obviously a 11^0. 7,matter of police, has through the superstition ofconsecrating burial grounds, been treated as be-longing to Ecclesiastical control/'

This position will be confii-med by a referenceto Du Cange's great work {suh voce^ " Imblo- Du Cangc,catus.") There it is clearly shown that the ex- biocatus.communicate forfeited not only all claim to theperformance over their bodies of the accustomedservice, but also the right to interment in con-secrated ground.*But the case does not rest merely upon the Pubiica-

authority of learned writers. There are historical Parkerexamples which afford a valuable clue to the vvorksofsound interpretation of the law. The case ofpiiking-one Tracy is cited by Sir E. Phillimore, but the see oene-more illustrious fate of Wickiiffe and Bucer s^ee aisT'occurs with greater readiness to the student of^o^tii'shistory. In all these cases the law was strong y^Jjl'^^^^-

* Cum legibus ecclesiasticis vetaretur, excommunicatorumcorpora sepelire, non modo in coemiteriis benedictis et conae-cratis, sed ne quidem in humum ubivis mittere, proindequenecesse esset in plateis aut agris insepulta relinquere ; netamen foetor nares, aut spectaculi horror mentes foedaret, iliaut plurimum humo injecta, aut tumultuaria lapiduin congerieoperire solebant, idque Imhlocare dicebant nostrates Belgse,quibus hloc est tumulus quidam altior.Du Cange, Glos-sarium, sub voce Imblocatus.


12/38

enough to invade even the tomb, and the bones ofthe dead were disinterred in obedience to a post-humous sentence.

3. The case of the unbaptized is similar to thatof the excommunicate. If those who wereexcluded from a communion to which they hadonce belonged, had no claim to rest in consecratedground, it follows, pari ratione^ or even a fortiori^that no such claim could be asserted on behalf oftho who had never been admitted into the fold.Even Bullinger did not claim more for the unbap-tized infant than a resting place in the ^' CcBmite-rium innocentium^'' a kind of middle space betweenconsecrated and unsanctified ground.The conclusion is, therefore, that the CommonLaw knows no right to bare interment in thechurchyard without the Burial Service. Theonly right which exists at the Common Law is anindivisible right on the part of the parishioner toChristian burial, that is, to burial coupled with theoffice of the Church. And conversely, the clergy-man is bound to perform the entire Burial Serviceover every body that is interred in the church-yard, those cases only being excepted which arethe subject of special statutory provision.*

This being the law, (whatever may in some* Among these exceptions would fall the case of the

" washed up Malay,'* upon whose fictitious rights Mr. OsborneMorgan has lately expatiated with such exuberant pathos (orbathos), before the inhabitants of Wrexham.


13/38

districts of the country have been the practice),various difficulties have from time to time occurredin the operation of it. Within the Church ofEngland itself, clergymen have protested againstthe obligation of reading the Burial Service overthe graves of parishioners whose lives had beenscandalous, and were perhaps ended in drunken-ness. Both clergy and laity have felt the harsh-ness of the law which denies to innocent babes,dying unbaptized, any form of Christian service.

But the difficulties about which we are speciallyconcerned at the present time are those whichhave been, and continue to be, experienced insome cases by those who do not reckon themselvesas members of the Church of England. Thesedifficulties may be classed under two heads.

1. Where a deceased parishioner claims inter-ment with the Service of the Church of Englandin the parish churchyard, but for want of baptismis disqualified from receiving it.

2. Where a deceased parishioner^ baptized orunbaptized^ claims interment in the parish church-yard :

(a.) Without any service or ceremony what-ever; or.

(h.) With a service or ceremony which is notthat of the Church of England.Now as regards the first head of difficulty,

or, as it is generally called, grievance, it is not


14/38

8necessary to say much. First of all, however, itmay be remarked that it is a grievance whichpresses in the same way on Church people as onany others. Secondly, it is a grievance of veryrare occurrence outside the Church. And whengrievances of this kind are alleged to havehappened, it will generally he found that whatreally happened was an indiscretion on the partof the parish clergyman, in refusing to recognizeas valid baptism which had been conferred by thehands of a layman, or of a dissenting minister.

These cases, however, are the stock in trade ofthose who agitate for an alteration in the law.And it is curious to note with what airy reckless-ness of inconsistency the declaimers on this subjectimpute to the law the errors of the clergy; andthen, when it serves the turn, visit upon theclergy the defects of the law.

I pass on to the second head of grievance. Aparishioner, not a member of the Church of Eng-land, dies. A desire is expressed on his behalffor interment in the parish churchyard withoutthe Burial Office of the Church, and, it may be,with a service or ceremony siich as is usual in thedenomination . to which the deceased belonsred.Then arises a dilemma : if he died unbaptized, hecannot claim to be buried in the churchyard atall ; if he had been baptized, he can be buriedonly with the Service of the Church of England,


15/38

This is the grievance which has for many yearspast been the subject of excited discussion, and ofseveral abortive attempts at legislation.

I propose to say a few words upon the historyand nature of the grievance, and then to considerthe remedies by which it has been proposed togive relief to those upon whom the grievancepresses.

It appears that originally the complaint arosefrom the Baptists ; and Sir Morton Peto's Billwas, in 1861, I believe, intended primarily for thebenefit of that sect. In the course of discussion,however, it came to be remembered that theQuakers were interested in the matter equallywith the Baptists. And by degrees it seems tohave been discovered (especially on the assump-tion of a Common Law right to interment, as such,in the parish churchyard on the part of all personsdying in the parish), that Jew, Turk, Infideland Heretic, are equally interested with the Bap-tist and the Quaker.

But between the introduction of Sir MortonPeto's Bill in 1863, and Mr. Osborne Morgan'sBill in 1870, a measure was passed,^the enactmentof which materially affected the position of theparties who demanded relief fi'om the operation ofthe existing law. At the former date the Dissenterwas in a position to say ; " I pay Church-rateswhy am I then either excluded altogether fromthe use of the churchyard, or, if I use it, con-


16/38

10strained to put up with rites and ceremonies towhich on principle I conscientiously object ?"The Dissenter was relieved from the obligation

to pay Church-rates, and in 1870 this argumentwas no longer available to him. It was perhapsfor this reason that Mr. Osborne Morgan has takenupon himself to rely upon a supposed CommonLaw right to interment in the parish churchyardvested in every parishioner, or rather in everyperson dying in the parish. The theory that sucha right exists or ever did exist has already beenshown to be an unverified and unverifiable hypo-thesis ; the authorities do not warrant it; andhistory negatives the supposition.With many who demand a reform in the law ofBurial, the dominant motive whether avowed, orconcealed, or indeed formally repudiated, is thedesire to obtain the dis-establishment of theChurch. They regard the Burials Bill as partpayment of their demand. With such it is notintended to argue here. If the Church is to bedis-established, let it be dis-established when thetime is ripe, after full discussion, and with plenaryrecognition of the vastness aiid gravity of thechange. To dis-establish the Church piecemealwould be a policy of madmen.

There remains to be noticed the argumentfounded on the practical inconvenience caused bythe law as it stands at present. Under the term" practical inconvenience " I include not only the


17/38

11delay, expense, and vexation which in the existingstate of things are now and then entailed uponthe friends of a deceased person, but also theinjury done to the feelings of mourners who, bythe exclusiveness of the law, are compelled toseparate in death^ those who in life were unitedby the ties of marriage or of kin. I include alsothe scandal which occasionally arises from whatseems to be the harsh conduct of the parishclergyman, and from the impossibility of gettingthe '^ common people " to understand why a personof pious and exemplary life, should be, owing tothe mere accident of his religious persuasions,debarred from privileges which are accorded tothe profane, the unclean, and the drunken.The " practical inconvenience '' thus understood

I take to be the exact measure of the alleged"grievance." No doubt, even thus limited, thegrievance is capable of being greatly exaggerated.To gauge with precision the extent of it, we musteliminate,

First, all those cases in which provision is madefor sepulture in cemeteries other than the church-yards ;

Next, all those cases in which, although no suchprovision exists, graveyards are attached to thechapels, or are in the possession of Noncon-formists ;

Thirdly, all those cases in which the absence of


18/38

12such graveyards or cemeteries is rendered im-material by tlie absence of Dissent ; and,

Lastly, all those cases in which although thereare Nonconformists, and although there is nograveyard accessible except the churchyard, nodifficulty arises because the Nonconformists arequalified and willing to receive interment at thehands of the clergyman in consecrated ground.Now it is plain that when these various cases

have been eliminated, the residuum of grievanceis not very large. In the absence of authenticinformation it is not easy to calculate the amountof it. But, as the saying is^ " a straw will showwhich way the wind blows." And, if the grievancebe one which is of frequent occurrence, I shouldbe curious to know how it is that the stock ofunsavoury stories about unburied bodies, about" sacerdotal intolerance," and so forth, with whichthe grievance-mongers regale the public is so ex-ceedingly meagre ?

But a grievance on all hands there is admittedto be, and on all hands it is agreed that a remedyought to be found.

Before proceeding to discuss in detail theremedies which have been proposed, it may notbe amiss to direct attention to one feature of thequestion which in the ardour of debate is apt toescape notice. There are many branches of oursocial economy which in times past wore a pre-


19/38

13vailing ecclesiastical aspect, but which the gradualrevolution of thought and manners has more orless completely secularized. It has been so, forinstance, with the law of marriage. So it has withthe law of testamentary dispositions 5 so it has withthe relief of the poor ; so it has to some extent withthe subject of education ; and so also has it beenwith the question of burial. Those considerationsof public health and public decency, which pressupon modern society with overwhelming force hadlittle or no place in the thoughts of our ancestors.I take one illustration. From March 1208 to June1214, England was under Interdict. During all in ett inthat time the dead had, to use the bluff language worth'sof Inett, *' the burial of the ox and the ass." Voi.'i.

To us it seems almost inconceivable that thenation should, even in those rude times, have beenso destitute of the sense of decency, and so blindto the dangers of pestilence^ as to tolerate the con-tinuance of such a state of things. If we cannotrecognize with Hallam any superstition in conse-crating the graveyard, we are nevertheless agreedthat sepulture is " obviously" and indeed chiefly" an affair of police."

Eegarding the matter in this lights the plainduty of the legislature is to afford ample facilitiesto all, of fulfilling the obligations which by lawall have to discharge. Now it is a matter ofnotoriety that in many instances, (I am speakingnow more particularly of rural districts,) the


20/38

14churchyards are ah-eady crowded to inconve-nience, or are likely soon to become so. Fur-ther, it will be generally conceded, that thepractice of accumulating graves round the churchesand among dwelling houses, (the parsonage beingcommonly the most exposed to danger), is onewhich sanitary science condemns. From time totime we hear of the outbreak of obscure andmalignant disorders which are traced to the in-fluence of subtle percolations from the graveyard.These are warnings not to be despised. Withrespect to districts thus endangered, the propercourse for the legislature to pursue is to enablesome description of local authority, either sepa-rately or in combination with others, to providecemeteries for the use, and, in part at least, at theexpense, of those dwelling within the area of theirjurisdiction. It would be necessary to provide atthe same time, for closing churchyards, with theapproval perhaps of a responsible Minister of theCrown, in cases where proof is given that it isinexpedient to allow fresh burials to take place inthem.

But, at the least, until cemeteries shall havebeen provided by the local authorities, I am ofopinion that it would be right to relax the condi-tion upon which those who are not members of theChurch of England have access to the parishchurchyards.Two Bills were last session introduced in the


21/38

15House of Commons having tliis object.* The BUIwhich was introduced by Mr. Talbot simply pro-vided that at the desire of a deceased person orof those responsible for his burial^ signified inwriting, the body of that person should "beentitled to a decent and solemn interment in thechurchyard" of the parish in which he died, withoutthe Burial Service being performed, but that " noservice of any kind whatever" should "be used,read, or performed at such interment within thechurchyard or the precincts thereof."The rival scheme which was embodied in Mr,

Osborne Morgan's Bill, is more complex and moreambitious. So far as the burial of persons withoutthe Burial Service is concerned, this scheme pro-ceeds on the same lines as the competing Bill^though Mr. Morgan's Bill has in my judgment theadvantage in point of precision.

Whether under the provisions of either Bill,unbaptized persons would be any better off thanthey now are, is open to grave doubt. Indeed Mr.Osborne Morgan's Bill seems expressly to excludesuch persons, for the sixth clause runs as follows," Nothing in this Act shall authorize the burial ofany person in any place where, previous to thepassing of this Act, such persons {sic) would havehad no right of interment."

I have already expressed an opinion that no un-baptized person has a right to burial in consecrated

* See Appendix.


22/38

16ground. Waiving tliis point however, tlic mainfeature of Mr. Osborne Morgan's Bill is the pro-vision contained in the fourth clause for theadmission at any burial performed under the Actof " all persons " to the churchyard, and for theconduct of ^' a service,' ' or participation " in anyreligious act " by " any person or persons whoshall be thereunto invited."

It will be observed that no qualification of anykind is placed on the service authorized to be per-formed. Agreeably to his theory of a CommonLaw right to interment vested equally in Jew andMahometan, in Brahmin and Buddhist, in theworshipper of

'^ Mighty Mumbo-Jumbo," and inthe worshipper of '' no god except himself, and ofhis belly, first of deities," Mr. Osborne Morganhas not thought it necessary to impose any restric-tions, beyond those of civil order, on the characterof the proceedings which are to take place ingraveyards, consecrated with a Christian ceremony,consecrated in a still higher sense by a blendedmultitude of Christian sentiments, environingbuildings set apart for Christian worship, and (toforget nothing) maintained at the expense ofChristian worshippers.

It is idle to discuss propositions such as these.But it may be asked whether, on the assumptionthat admission to the churchyard is to be grantedto those whom the law now excludes from it, itmight not be as wxll to accompany this concession


23/38

17witli such further relaxations as would seem, in afair view^ necessary to make the boon offered aboon appreciated? In my opinion, a schemecould be devised with little difficulty, which,abstaining so far as possible from giving to out-siders privileges in the churchyard which themembers and ministers of the Established Churchthemselves do not possess, should give to thoseChristian denominations which are aggrieved by thelaw all the relief that they can reasonably claim.That such a scheme should be framed, and

should pass into law, is eminently desirable. Itwould end a long, and, it must be confessed, amean as well as a bitter quarrel.I urge concession. Not in deference to theLiberationists, still less in fear of them. Not onthe ground of claims which the abolition ofcom^pulsory church-rates has scattered to thewinds. Not on the ground of an imaginaryCommon-Law right. Not on the ground, whichit has been reserved for the Times newspaper tobreak, of a still more imaginary " natural right,"(as to which I would say, as Herodotus saidabout the dizzy dreams of some contemporaryspeculator, ^' When a man goes into the dark toargue, it is no use following him there to refutehim;") but I urge concession because the opera-tion of the law is attended with hardship, andbecause it is for the interest of the Church thatthis hardship should be removed.

2


24/38

18

APPENDIX,

Mr. Osborne Morgan^s Bill.A.D. 1875. A Bill to amend the Burial Laws :Whereas it is expedient to amend the law of burial in

England :Be it therefore enacted by the Queen's most Excellent

Majesty, by and with the advice and consent of the LordsSpiritual and Temporal^ and Commons^ in this presentParliament assembled, and by the authority of the same,as follows

After pass- 1. After the passing of this Act, any person or personsnotice may having the charge of or being responsible for the burialthat burial ^^ ^ deceased person may give twenty-four hours noticeplace^la^ in Writings indorsed on the outside "Notice of Burial,"church- to or leave at the usual place of abode of the rector,yard with- . i i . , . , ,out the Vicar, or other incumbent, or m his absence to theChurch of^ officiating minister in charge of any parish or ecclesias-England. tical district, or any person appointed by him to receive

such notice, that it is intended that such deceased personshall be buried within the churchyard or graveyard ofsuch parish or ecclesiastical district without the serviceprescribed by law for the burial of the dead according tothe rites of the Church of Eugland : and, after receivingsuch notice, no rector, vicar, incumbent, or officiatingminister shall be liable to any censure or penalty, eccle-siastical or . civil, for permitting any such burial asaforesaid.


25/38

192. Sucli notice shall state the time at which such burial Time of

is proposed to take place, and in case the time so named l^^l^^ andbe inconvenient on account of some other service havinsf \ ^ ^^^~]ect tobeen previously to the receipt of such notice appointed to variationtake place in such churchyard or graveyard, or the bent,church or chapel connected therewith, the person re-ceiving the notice shall, unless some other day ortime shall be mutually arranged, within eicjliteen Jioursfrom the time of receiving such notice, signify in writing,to be delivered to or left at the usual place of abode ofthe person from whom such notice has been received, atwhich hour of the day named in the notice such burialshall take place; and it shall be lawful for the burial totake place, and it shall take place at the hour so appointedor mutually arranged, and in other respects in accordancewith the notice; provided that, unless it shall be other-wise mutually arranged, the time of such burial shall bebetween the hours of ten o'clock in the forenoon and sixo'clock in the afternoon if the burial be between thefirst day of April and the first day of October, andbetween the hours of ten o'clock in the forenoon andthree o'clock in the afternoon if the burial be between thefirst day of October and the first day of April.

3. When no such intimation of change of hour is sent Burial toto the person from whom the notice has been received, in accor-the burial shall take place in accordance with and at the [jo^ê^^time specified in such notice.

4. At any burial under this Act all persons shall have Personsfree access to the churchyard or graveyard in which the ây con-same shall take place, and any person or persons who ûHaUer-shall be thereunto invited, or be authorised by the person vice.or persons having the charge of or being responsible forsuch burial, may conduct a service, or take part in anyreligious act thereat.


26/38

20Bnrials to 5. All burials under this Act, whether with or withoutducted in a a religious service, shall be conducted in a decent andorSy^^*^ orderly manner, and every person guilty of any riotous,mannp.r, violent, or indecent behaviour at any burial under thisand with- , ^ ^ iout ob- Act, or wilfully obstructing such burial, or any serviceAct not to thereat, shall be guilty of a misdemeanor.TbuS?' 6. Nothing in this Act shall authorise the burial of anywhere no person in any place where, previous to the passing of thisright Act, such persons would have had no right of interment.existed. ^^^ When any burial has taken place under this Act,Burials *' ^under Act the minister or other person who has conducted theregistered, religious service thereat, or if there be no religious

service the person having the charge of or being respon-sible for such burial, shall, on the day thereof, or the nextday thereafter, transmit a certificate of such burial, in theform of Schedule (A.) annexed to this Act, to the rector,vicar, incumbent, or other officiating minister in charge ofthe parish or district in which the churchyard or grave-yard is situate, or to which it belongs, who shall thci 3-upon oDter such burial in the register of burials of suchparish or district, and such entry shall form part thereof.Any person who shall wilfully make any false statementin such certificate shall be guilty of a misdemeanor,

Applica- 8. This Act shall not apply to Scotland or to Ireland.Short title ^' "^^^s ^^* ^^y ^ ^^^^ ^^ ^^ '' Burial Laws Amend-of Act. ment Act, 1875.'^

Schedule to which this Act refers.Schedule (A.)

I of the minister\_or the person] by whom the ceremony of burial wasperformed, [or the person having the charge of {or beingresponsible for) the burial of the deceased,] do hereby


27/38

21certify^ that on the day of A, B.,of aged was buried in the churchyard[or graveyard] of the parish [or district] of

To the rector [or as the case may he] ofMe. Talbot^s Bill.

A Bill to amend and declare the Law of Interments in a d. 1875.Churchyards in England and Wales.

Whereas it is expedient to amend and declare the lawof intermentBe it enacted by the Queen^s most Excellent Majesty,

by and with the advice and consent of the Lords Spiritualand Temporal, and Commons, in the present Parliamentassembled, and by the authority of the same, as follows

1. Where any person shall have expressed in writing, Funeralsunder his hand, his desire tliat the office for the burial of perform-the dead, according to the rites of the Church of England, ^"^^^ ^^shall not be read at his funeral, or where any person or viceincer-persons having the charge of or being responsible for the whereburial of any deceased person shall express in writing ^^^^^ "under their hands a like desire as regards such deceasedperson, and such writing shall be delivered a reasonabletime before the funeral to the incumbent of the parish inwhich such deceased person shall have died, or to theclergyman ordinarily officiating in the churchyard of suchparish, such incumbent or clergyman shall not be boundto attend at the interment of any deceased person, andthe body of such deceased person shall be entitled to adecent and solemn interment in the churchyard of suchparish ; but no service of any kind whatever shall beused, read, or performed at such interment within thechurchyard or the precincts thereof.

2. This Act shall apply to England and Wales only. Extent of3. This Act may be cited as "The Interment Act, short title,

1875."


28/38

22As reference is frequently made, in discussing tlie ques-

tion of burials in England, to the legislation wliicli hastaken place with regard to this subject for the benefitof Ireland, it has been thought useful to append the Actsof 1824 and 1868, apphcable to that part of the UnitedKingdom.

ANNO QTJINTOGEOEGII IV. EEGIS.

CAP. XXY.An Act to repeal so much of an Act passed in the NinthYear of the Reign of King William the Third, as

relates to Burials in suppressed Monasteries, Abbeys,or Convents, in Ireland ; and to make further Pro-vision with respect to the Burial, in Ireland, ofPersons dissenting from the Established Church.

[15th April 1824.]Whereas by an Act of the Parliament of Ireland

Irish Act, passed in the Ninth Year of the Reign of King' * William the Third, intituled An Act for hanishing all

Papists exercising any Ecclesiastical Jurisdiction, and allRegulars of the Foinsli Clergy, out 'of the Kingdom ; it isamongst other things enacted, that no Person whatsoevershould, from and after the Twenty-ninth of DecemberOne thousand six hundred and ninety-seven, bury anyDead in any suppressed Monastery, Abbey, or Convent,not made use of for celebrating Divine Service accordingto the Liturgy of the Church of Ireland by Law estab-lished, or within the Precincts thereof, under pain offorfeiting Ten Pounds, to be recovered as therein men-


29/38

23tioned : And whereas it is expedient that the saidProvision should be repealed ; be it enacted by theKing's most Excellent Majesty, by and with the Adviceand Consent of the Lords Spiritual and Temporal, andCommons, in this present Parliament assembled, and by Provisionthe Authority of the same. That the said Provision shall, ActT^as^ tofrom and after the passing of this Act, stand and be ^^Jing larepealed : Provided always, that nothing herein contained ries, &c.shall authorize the burying any Dead in any suppressed -^^^ ^^ ^*^^_Monastery, Abbey, or Convent, or within the Precincts Jhonzethereof, where the same have not been within Ten Years suchusually employed for such Purposes, unless with the Per- where notmission of the Proprietor of the Place on which the "o^'^^^^^^^J"suppressed Monastery, Abbey, or Convent is situated. &c.

II. And whereas the Easement of Burial in the Church-yards of Protestant Churches has been long enjoyed byall Classes of His Majesty's Subjects; but such Burialmay not by Law be allowed, unless the Burial Serviceordained by the Liturgy of the Church of Ireland as byLaw established, shall be celebrated thereat by theKector, Yicar, Curate, or other Officiating Minister of theChurch of Ireland, in whose Churchyard such Burialshall be had, or by some Person in Holy Orders of theChurch of Ireland, duly authorized by him : And whereassuch Minister of the Church of Ireland may not by Lawdispense with the Celebration of such Service, or permitthe Substitution of any other Service in lieu thereof ; tothe End thereof that all Classes of His Majesty's Subjectsmay be permitted to have the said Easement of Burialaccording to the Rites of the several Religions professed parish ^^by them ; be it enacted. That from and after the passing "^^^^^^^^^^of this Act it shall and may be lawful for the Officiating permissionMinister of the Church of Ireland by Law established, in men not* ofeach and every Parish in Ireland, upon application bemg (V Ireland


30/38

24duly au- made to him in Writing by any Clergyman or Minister ofperform any Church or Congregation not being of the Establishedvice. " Church of Ireland, duly authorized by Law to officiate in

such Church or Congregation^ stating the Death of anyMember or Members of such Church or Congregation,for Permission to perform the Burial Service at the Graveof such Person or Persons in the Churchyard of suchParish, according to the Rites of such Church or Con-

Permission gregation, to grant Permission accordingly : Providedfor i*er-formance always, that such Permission for the Performance of suchServke^ro ^^^^^^ Service at the Grave, according to the Kites ofbe in Writ- such Church or Congregation, shall be in Writing ; andintei-ment that in order to prevent any Interruption of, or Inter-vice had'at ^^^^*^ with the Celebration of any of the Rites of thaTime ap- Qtim-ch of Ireland by Law established, such Intermentpointed., "^

and Service shall be had and celebrated at ^Mch Timeonly as shall be appointed in such Permission by suchOfficiating Minister of the Church of Ireland.

If Permis- HI. And be it further enacted. That if such Permissionheld, Cause shall in any Case be withheld, the Cause of withholding0^fficktiD


31/38

25land as by Law establislied, at the Interment of anyPerson not being of the Established Church of Ireland,unless at the Desire of the Person so applying, at theInterment of such Person, specified in the Applicationand Permission ; any Law, Canon, or Usage to the con-trary notwithstanding.V. And be it further enacted. That if after such Per- Obstruct-

mission granted as aforesaid, any Person or Persons shall Serviceobstruct or interrupt the Performance of the said Burial ^isde- ^Service at the Crave of the Person specified in such oieanor.Permission, such Person or Persons so obstructing orinterrupting shall be deemed guilty of a Misdemeanor,and shall be liable to be prosecuted therefor.

ANNO TEICESIMO PEIMO & TEICESIMO SECUNDOVICTORIA REGIN^.

CAP. cm.An Act to amend the Law which regulates the Burials of

Persons in Ireland not belonging to the EstablishedChurch. [31st July 1868.]

Whereas it is expedient to amend the Law of Burialin Ireland :Be it therefore enacted by the Queen^s most Excellent

Majesty, by and with the Advice and Consent of theLords Spiritual and Temporal, and Commons, in this

3


32/38

26present Parliament assembled, and by tlie Autbority oftbe same, as follows :

Where 1. That whenever after the passing of this Act anyPersons Person who at the Time of his or her Death shall notnot belong- i^g^^g been a Member of and in communion with theing toUnited United Church of England and Ireland shall be buried, asEngland of Eight, within any Churchyard or Graveyard, the Soilfand take ^^ Freehold whereof shall be vested in any Rector, Vicar,place in ^^ other Incumbent, it shall be lawful for the Priest orBurialGrounds of Minister of the Religious Denomination to which suchChurch, Person shall have belonged at the Time of his or herPriest, &c. j)Qath, and he is hereby empowered, to attend suchDenomna- Burial, and to read such Prayers or perform such Burialperform Service at the Grave in such Churchyard or Graveyard asService. jg ^sual and customary at Burials of Persons belonging to

such Religious Denomination ; and any person wilfullyobstructing such Prayers or Burial Service shall bedeemed guilty of a Misdemeanor : Provided always, thatsuch Prayers shall not be read nor such Burial Serviceperformed either wholly or in part during the Time of theCelebration of the Divine Service or any Rite or Cere-mony of the said United Church, or during the catechisingor other Instruction of Children or young Persons in theChurch or Chapel to which such Churchyard or Graveyardbelongs, nor within Half an Hour before tbe Commence-ment or after the Conclusion of any sucb Celebration,'catechising, or Instruction, nor during the Time at whichthe Incumbent or Minister of such Church or Chapel, orany other Minister or other Ecclesiastical Person, shall beperforming the Burial Service in such Churchyard orGraveyard nor during the Performance of any otherBurial Service therein : Provided always, that nothing inthis Act shall confer any Right of Burial where no suchRight already exists, or shall affect the Rights or


33/38

27Privileges of any Ordinary, Rector, Vicar, or otherIncumbent.

2. Notiling herein contained shall authorize or justify Prohibi-any Interference with or Interruption of the Oelebration terferenceof Divine Service in the Church or Chapel to which such ^^^^^îChurchyard or Graveyard may be attached or belong, orthe Obstruction of Persons going thereto or returningtherefrom.

3. Such Priest or Minister who may purpose to attend Notice tosuch Burial shall, Twenty-four Hours before the reading the Timeôf such Prayers or the Performance of such Burial f^^p^J;^^^^^^*Service, serve or cause to be served upon the Person that theBurialappointed by the Rector, Vicar, or other Incumbent of shall takethe Parish to receive such Notices a Notice in Writing, ^ ^^^"signed with his Name, stating the Name and lateResidence of the Person about to be buried, and theHour at which he purposes to read such Prayers orperform such Burial Service ; and if there be noCelebration, catechising, or Instruction already appointedto take place, or other Burial Service appointed to beperformed at the Time specified in the Notice, of whichhe is to be then and there informed, he shall read suchPrayers or perform such Service at the Time for which hehas given Notice; but if any Celebration, catechising.Instruction, or other Burial Service shall have beeB alreadyappointed, then he shall appoint some other convenientTime before or after such Celebration, catechising,Instruction, or other Burial Service.

4. And whereas many Parish Churches have of late Lord Lieu-Years been erected on a new Site, having attached to council to

havethem small Churchyards given or purchased for the sole p^^^Ûse of Persons attending^ the Worship of the Church, exempt

r^ certain!and in Size proportioned to the Wants of the Congrega- church.^tion, leaving the old Churchyard for the general Use of ^^'

to.


34/38

2^^the Parishioners: and whereas many Perpetuai Cares andDistrict Parishes have been erected of late Years, andChurches built in them, with small Graveyards intendedsolely for the Use of the Congregations of such Churches :Be it therefore enacted, That it shall be lawful for theLord Lieutenant in Council, on Application from theIncumbents of any such Church, to declare the same tobe exempt, and which Exemption shall be published inthe Dublin Gazette, and thereupon such Churchyardsshall be exempted from the Operation of this Act.

Extent of 5. This Act shall extend to Ireland only.Act. ^

G, NORMAN AND SON, PRINTERS, MAIDEN LANE, COVENT GARDEN.


35/38


36/38


37/38


38/38

burials question 00 her v

Documents