ground for the use of succeeding claimants. New cemeteries are to be purchased at an enormous expense, and the whole environs of the metropolis would be surrounded by a circumvallation of churchyards.

"If, therefore, these iron coffins are to bring an additional charge upon parishes, they ought to bring with them

additional fee.

a proportionate compensation; upon all common principles Iron coffins of estimated value, one must pay for the longer lease which should pay an you actually take of the ground. If you wish to protect your deceased relative by additional security, which will press upon the convenience of the parish, we do not blame the purpose, nor reject the measure; but it is you and not the parish who must pay for that purpose. It remains only that I should direct the parish to exhibit a table of burial fees for the consideration of the ordinary. Patent rights, and on which it seems these coffins are constructed, must be held by the same tenure as all other rights, ita utere tuo ut alienum ne ladas. They must not infringe upon rights more ancient, more public, and such as this court is peculiarly bound to protect." After some further time spent in considering this matter, the case ended by Lord Stowell signing a table of fees for burial to be used Table of fees in the parish in question; which table has been added in signed by Lord the Appendix, as it is presumed that it may prove very convenient as a general guide.

Stowell.

not unlawful.

fixed.

The present state of the law, therefore, as deduced from the above case is, that the burial in iron coffins is certainly Metal coffins not unlawful, and that the use of them is not prohibited; that they stand upon the same grounds as leaden coffins, or those made of any other metal; but that those who wish to use them, must pay for that privilege. The increased Additional fee fee to be demanded for them to be fixed in the first instance for their use; by the parish, but subject to the revision of the ecclesias- by whom to be tical court upon appeal. As to the application of the money so paid, that, as it seems, is to be decided by the parish; and to whatever parties and in whatever proportions To whom to be the usual fees for interment have been paid, to those same parties and in the same proportions, it is presumed, that the increased fees would also be payable: at any rate, as observed by Lord Stowell, the party disputing the amount charged to him for such burial would have no right to complain of its application, or indeed to look into that question, or to quarrel with the public uses to which it may have been applied by the parish.

paid.

Formerly, as observed Lord Stowell, the use of shrouds, Burial in made of woollen, was enforced by statute, for the en- woollen shrouds

9 See Appendix.

not now enforced.

couragement of the woollen manufacturer; but those acts have been since repealed."

Hitherto, we have spoken principally of the universal right to interment, provided the mode be not objected to; there is a further right, which is not equally universal, and which we hitherto noticed only incidentally, viz. to have The burial ser the burial service performed over the body, a subject which more peculiarly concerns the clergy.

vice.

Minister not to refuse to per. form generally.

No minister shall refuse or delay to bury any corpse that is brought to the churchyard, convenient warning being given him thereof beforehand, as prescribed by the Book of Common Prayer; and if he shall refuse to do so, except the party deceased were pronounced excommunicate majori excommunicatione, for some grievous and notorious Penalty for re- crime, and no person able to testify of his repentance, he shall be suspended by the bishop of his diocese from his ministry for the space of three months.

fusal.

Burial of dis

land.

The proceeding in such a case, being for a breach of the laws ecclesiastical, would be under the Church Discipline Act before mentioned. It is also said that an information would be granted in such a case by the Court of Queen's Bench."

And it would appear that the clergyman is bound to read the burial service over the body brought to be interred, whether it is desired or objected to by the relatives of the deceased; for the statute respecting the burial of dissenters senters in Ire in Ireland clearly supposes this to be the law, it being there declared that it shall not be necessary for the officiating minister of any church in Ireland to celebrate the burial service as by law established at the interment of any person not being of the Established Church of Ireland, unless by particular desire.*

Exceptions to the general rule.

And with regard to the burial of dissenters in Ireland, generally it is enacted, that clergymen may grant permission to ministers of other churches and congregations than of the Church of Ireland to perform the burial service over the bodies of persons of their congregations in the churchyard of the parish; such permission must be in writing, and express the time appointed for the burial.

Although the canon only mentions the above exception to the rule, yet two others are mentioned in the rubric, which notes that the office of burial is not to be used for any that die unbaptised, excommunicate, or who have laid violent hands on themselves." Of the first of these excep

tions, we have already spoken fully under the head of Baptisms. It need only be repeated here that the clergyman cannot constitute himself a judge of what is or what is not baptism, because that is determined by the law, which

a

he is bound to obey; and that no person is to be con- Who are to be sidered unbaptised, so as to be refused Christian burial, considered as who has been baptised according to the essentials of bap- this purpose. unbaptised for tisms already defined, by whomsoever, whether priest or layman, that ceremony has been performed; and that a clergyman, refusing to bury one who has been baptised according to those essentials, is fully liable to the penalty before mentioned.

Of the second exception, it is to be observed, that the meaning of the rubric in this respect seems to be explained

by the canon, which says, that no person shall refuse to Who are to be

bury, &c. in such form as prescribed by the Book of Com- considered as mon Prayer, unless the party deceased were denounced excommunicate. excommunicated majori excommunicatione for some grievous and notorious crime, and no person able to testify of his repentance. It is clear, therefore, that those cases in which the canon law declares persons ipso facto excommunicate, were never contemplated by the words of the rubric; and both before and since the Reformation, where evidence appeared to the bishop of the repentance of the persons excommunicate, commissions have been granted, not only to bury them, but in some cases to absolve them, in order to Christian burial.c

d

The last of these exceptions is to be taken in its restricted Who are to be sense. Idiots, lunatics, and persons of insane mind, not considered as having laid viobeing deemed responsible for their acts, are not to be un- lent hands on derstood thereby but those only who, having wilfully themselves. destroyed themselves, are supposed to have died in the commission of a mortal sin. Of the state of mind of those who die by their own hands the coroner's jury are the proper judges; and as the law in reference to other matters considers those only as having laid violent hands on themselves, upon whom a verdict of felo-de-se has been returned by such a jury, it cannot be supposed that the minister would be permitted to exercise his own judgment in such

a matter. The first ecclesiastical rule as to this matter is Rule of the old the 34th canon of the first council of Braga, A. D. 563, ecclesiastical which forbids any burial service for those qui violenter sibi law. ipsis inferunt mortem. The older commentaries on which appear to have understood this with the limitation, if they do it voluntarily, and by instigation of the devil; and this

Opinion of Dr.
Burn.

Probable state of the law on this subject.

Other causes formerly for

refusing burial.

may be considered to have been the old ecclesiastical law prior to the rubric.

We should not, therefore, as Dr. Burn observes, without necessity, understand our own rubric to be so much more severe than the preceding constitutions, as to place mad people in the same rank with excommunicate and unbaptised persons, and punish a poor creature for what in him, indeed, was no crime; and he further adds, the proper judges, whether persons who died by their own hands were out of their senses, are, doubtless, the coroner's jury. The minister of the parish hath no authority to be present at viewing the body, or to summon or examine witnesses. And therefore he is neither entitled nor able to judge in the affair, but may well acquiesce in the public determination, without making any private inquiry. Indeed, were he to make one, the opinion which he might form from thence could usually be grounded only on common discourse and bare assertion; and it cannot be justifiable to act upon these in contradiction to the decision of a jury, after hearing witnesses upon oath. And though there may be reason to suppose that the coroner's jury are frequently favourable in their judgment, in consideration of the cir cumstances of the deceased's family with respect to the forfeiture, and their verdict is in its own nature traversable; yet the burial may not be delayed until that matter upon trial shall finally be determined; but on acquittal of the crime of self-murder by the coroner's jury, the body in that case not being demanded by the law, it seemeth that a clergyman may and ought to admit that body to Chris

tian burial.f

We have entered into this subject more fully, because, notwithstanding the authority here quoted, the strict letter of the rubric would seem to require a different practice; and no case appears ever to have occurred, in which a clergyman, who has refused to bury the corpse of one who has committed suicide in insanity, has been punished by the ecclesiastical law. The uniform practice, however, so far as it has been able to be ascertained, is in accordance with the reasoning and opinion of Dr. Burn; and it must be doubtful whether a departure from a custom of such acknowledged propriety would not be visited with ecclesiastical punishment.

Anciently there were other causes for refusing Christian burial, as for heretics, persons not receiving the holy sacrament once in the year-persons killed in duels, tilts, and

But see Wheatley on the Common Prayer. f 1 Burn's E. L. 267.

tournaments; but the rubric having mentioned three causes of refusal only, all other prohibitions seem no longer to exist.f

rubric.

It is remarkable that the rubric gives a very general The service as direction only in the order for the burial of the dead; for directed by the it directs that the priest and clerk's meeting the corpse at the entrance of the church yard, and going before it either into the church or towards the grave, &c.; which, if it stood alone, might probably be explained by the circumstance that burial might be in the church or in the churchyard; but it is evident from the order of the service, that this explanation would be insufficient; for there is a considerable portion of the service which is to be read after the corpse has been carried into the church, and before they come to the grave: yet there is no positive direction that the corpse must be taken into the church. It would seem, therefore, that it was intended to leave this matter at the discretion of the minister, to be exercised by him according to his knowledge of the life and habits of the deceased; but, practically, this apparent discretionary power in the minister has given rise to a great scandal; and the discretion of the minister has, in many parishes, been guided by the amount of the fee paid or rather has been made the means of extorting more than the customary fee for burial: and a different order of the burial service is consequently used in many parishes for the wealthy and for the indigent.

of burial.

No constitution or canon, ancient or modern, fixed or Fees for interpretended to fix any fee for interment, or for the office of ment and office burial; on the contrary, the constitution of Langton says, we do firmly enjoin that burial shall not be denied to any one, upon the account of any sum of money. And here Burial not to be it may be observed, that although the canon law might denied on acprohibit ministers from taking any fee, it does not follow count of the fee. that it could enforce upon the laity the payment of one.

custom.

But though fees are not due of common right, it seems Fees may be to be now clearly established, that they may be payable payable by by custom; and originally all such customary fees seem to have been payable for the interment, rather than for the performance of the burial service; but, as in the former case, the fee, or a part of it, may have been payable to the clergyman, as in the latter case, the question is not easy to be determined.

At present it may be laid down that the payment of all such fees, and also the application of them when paid, is regulated by, and entirely dependent on, the custom of

f Burn's E. L. 267.

YY