Variously paid and applied. In and about each particular parish, and is, therefore, by no means necessarily to be made to the minister; as would be the case of a fee paid for the office of burial. In some places it is payable to the incumbent, in others to the churchwardens, and in some others to the incumbent and churchwardens in certain proportions, and in some places, as in many of the parishes about London, the churchwardens not only have the fee for interments in the churchyard, but for those in the church also, the incumbent having the fee for interments in the chancel only; and the payment of those customary fees has been recognised in several statutes, and especially in a case in the Common Pleas in 1815, in which it was said by C. J. Gibbs-the supposed right is to a fee on burial: at common law the churchwardens have no such right whatever. It may exist by Custom must be custom, but the custom must be immemorial and invariable.h So that in a case where such fees were alleged to be payable out of the poor rates, it was said that this disproved their ancient origin; and that it could not be an immemorial custom.i immemorial and invariable. May be enforced by the ecclesiastical court. If there were no question as to the existence of the custom, the ecclesiastical court would have jurisdiction to enforce the payment of the fee; and there would be no ground for a prohibition: but in a recent suit for fees, under such circumstances, in the ecclesiastical court, Dr. Lushington says: "The whole subject is not without difficulty; for it is admitted that no such suit has been brought for a hundred years last past; and I can find nothing in the books as to who are liable for these fees; whether the legal personal representatives of the deceased or any one else." And where the payment of fees for burial was established by, and rested on, the authority of a local act of parliament, it was doubted by Dr. Lushing ton whether the ecclesiastical court had any power to enforce the payment of them, or whether its jurisdiction was not confined to ancient and customary fees only. And as the act had directed the vestrymen to settle and fix a table of fees for burial, which they had not done, he intimated his opinion that they might be compelled to do so by mandamus.' The proportion of fees for burial, whether of parishioners or non-parishioners, must therefore depend entirely upon the usage and custom of each parish respectively; and the usual amount of reasonable difference in the fees in either g2 Shower, 184. h Littlewood v. Williams, 6 Taunt. 281. Spry v. Guardians of Marylebone, 2 Curt. 11. k Ibid.; and see 3 Black. Com. 63, c. 7. 1 Ibid. of such cases will best appear by reference to the table signed by Lord Stowell," but, as in the case of all customs, it must be a reasonable custom; and whether there be such a custom or not would be only triable at common law. And if it were the custom to bury non-parishioners in the churchyard it would therefore appear that the incumbent would not be allowed to charge an unreasonable fee. And so, although in every case where a license is necessary, (as where application is made to the rector for leave to bury in the church,) it has been said that the person giving the license may stand upon his own price," this proposition seems very doubtful, and, indeed, it is directly opposed to what was said by Sir J. Nicholl in the case of Rich v. Bushnell, before mentioned." Demand of a In an old case, it appears to have been attempted to fee by the carry the enforcing of a customary fee so far, that where a clergyman of a stranger had died in a parish, in which, if she had been parish in which buried, a fee would have been payable, but she had been a person died removed out of that parish for interment; the rector of that but was not buried, illegal. parish nevertheless demanded the fee, and libelled against the husband of the deceased in the ecclesiastical court. But a prohibition was granted; for it was said that such a custom was against reason; that he who is no parishioner, but may pass through the parish, or lie in an inn for a night, should be forced to be buried there, or pay as if he were.P It is in observing upon this case that Gibson says, a Opinion of fee for burial belongs to the minister of the parish in which Gibson on this subject. the party deceased heard divine service, and received sacraments, wheresoever the corpse be buried. And this, he observes, is agreeable to the rule of the canon law, which says, that every one, after the manner of the patriarchs, shall be buried in the sepulchre of his fathers: nevertheless, that if any one desires to be buried elsewhere, the same shall not be hindered, provided that the accustomed fee be paid to the minister of the parish where he died, or at least a third part of what shall be given to the place where he shall be buried. For the understanding of which it is to be noted, that anciently all persons in their wills made a special oblation or bequest to the church at which they were to be interred; and the people in those days depending much upon the prayers of the living for the good of their souls after death, those of better condition coveted oftentimes to be buried in religious houses, with a view to greater assistances which they hoped to receive from the m See the table in Appendix. n 1 Salk. 334; 1 Hagg. Cons. 211. • Vide ante. P Topsall v. Ferrers, 15 Jac.; Hobs. 175. Gibs. 452. Not of general application. In particular may commence quære. But such fees must have the sanction of the ordinary. The above authority ques solemn and constant devotions there: also, where the oblations were like to be plentiful, the religious were led by that prospect to desire and promote it. By which means parochial ministers would have been deprived of what belonged of common right to them, and to no other; if the laws which indulged the superstitious conceit of being buried in religious houses had not at the same time provided for the ancient parochial rights which sometimes was the third, sometimes the fourth part (according to the customs of different places) of what was given to the religious houses, the laws probably presuming that the oblations to those houses would be much larger than what was usually given to the parochial minister. And this was called the canonical portion; and the oblation grew by custom into a fixed right of the parish minister. And hence it is, that in dispensations for burying elsewhere, reservations have been made of the rights of those churches where the parties die." What is here said by Gibson, and which is quoted in Dr. Burn's work, may be true in some particular cases, but is by no means universally correct, for, as already mentioned, the payment of such fees is entirely matter of custom in each particular parish, and before any such fee could be enforced, it might be inquired of in the common law courts, first, whether such a custom existed, and secondly, if it did exist, whether it was a reasonable custom; or the second inquiry might be considered as included in the first. Independently, however, of any ancient and immemorial custom, it has been said that, in populous parishes, where funerals are very frequent and the expense of keeping churchyards in orderly condition great, and where the expense of purchasing new ones, where the old ones become surcharged, is extremely oppressive, it is not to be deemed unreasonable that the actual use should contribute when it is called for; that is to say, that a parish so situated could commence a custom of this nature, and impose a rate to be paid for each interment. But in such cases parishes would not be left to carve for themselves; the rates must be submitted to the examination and approval of the ordinary." But the authority for what is here said appears to have been doubted in a recent case by Dr. Lushington, who tioned. Proba asks "Could this approval by the existing Chancellor bestow on these fees a legal character, so as to make then recoverable here? I think the whole of the authorities ble restricted meaning. r Gibs. 452. • Per Lord Stowell in Gilbert v. Buzzard, ante. show that no such power exists-I mean a power in the chancellor of a diocese to create new fees for common burial. How far such an authority could constitute new fees in cases not of common burial is a question I am not called upon to discuss. All I say is, that a chancellor cannot, by his own authority, create a new fee for common burial." And to what is here said by Dr. Lushington, it may be added, that as burial is a common law right, it would be strange if it could be limited or restricted by the ordinary, the ecclesiastical judge, or the particular parish, and probably what was said by Lord Stowell must be taken as an authority only that fees might be imposed on the burial of parties dying out of the parish, and where, consequently, there would be no common law right of burial. In the case of pauper burials it has now been enacted, that Fees on pauper in all cases of burial under the directions of the guardians funerals. and overseers, the fees payable by the custom of the place where the burial may take place, or under the provisions of any act of parliament, shall be paid out of the poor rates for the burial of each such body, to the person or persons who, by such custom or such act, may be entitled to receive them." By the statute 6 & 7 Will. IV. c. 86, it is expressly provided, that nothing therein contained shall affect the right of any officiating minister to receive the fees then usually paid for the performance or registration of any baptism, burial, or marriage. The general provisions respecting Registering the registration of burials have been already mentioned burials. under the head of baptisms, in so far as the registration of them is directed by the statute 52 Geo. III. c. 146. But in Clergyman not the case of burials, as of baptisms, although the general pro- to bury without visions of that statute remain unaffected, yet some addi- certificate, tional provisions have been made by the stat. 6 & 7 Will. IV. c. 86, for it has been made unlawful for any clergyman to perform the funeral service for the burial of any dead body, unless he has received a certificate either from the registrar or the coroner, or unless within seven days afterwards he gives notice thereof to the registrar. The words of the section are as follows:-"That every registrar, immediately upon registering any death, or as soon after as he shall be required to do so, shall, without fee or reward, deliver to the undertaker or other person having charge of the ground, a certificate under his hand, according to a prescribed form, that such death has been duly registered, and such certificate shall be delivered by such undertaker Spry v. Guardians of Marylebone, 2 Curt. 11. 7 & 8 Vict, c. 101, s. 31, * See Appendix. unless he give having done so. notice of his Penalty for neglect of these directions. or other person to the minister or officiating person who It has been observed that there is no prescribed form of notice to be given by the clergyman who has performed the service without a certificate, and that a verbal one might therefore be sufficient; but a written one would appear safer and more proper. CHAPTER V. OF THE ADMINISTRATION Of the lord's SUPPER. THE ecclesiastical authorities of earlier times were duly solicitous to have the sacred rite of the Lord's Supper administered frequently, and to as large a number of communicants as could be obtained, without admitting those who were unfitted to be received by crimes of a heinous nature, notorious evil living, oppression of their neighbours, or reciprocally cherished malice or hatred. To attain Rubrical direc- which purposes the following are the directions of the tions. Number of communicants. rubric. First, as to the number of communicants. There shall be no celebration of the Lord's Supper, except there be a convenient number to communicate with the priest, according to his discretion. And if there be not above twenty persons in the parish of discretion to receive the communion; yet * See Appendix. 6 & 7 Will. 4, c. 86, s. 27. |