Monuments, and Tombstones, &c. suffered very severely also during the intemperate triumph of the party of ŎLIVER CROMWELL; the evidences of which are painfully visible at the present day in many of our Cathedrals. LORD COKE says on this subject:- The defacing of Monuments 'is punishable by the Common Law, as it appeareth in the Book of 'the 9 Edw. IV. c. 14. (the Lady Wicke's case), and so it was 'agreed by the whole Court. M. 10. Jac. in the Common Pleas, 'between Corven & Pym. And for the defacing thereof, they that 'build or erect the same shall have the action during their lives... ' and after their deceases, the heir of the Deceased shall have the action. (3 Inst. 202.)....And if a Nobleman, Knight, Esquire, or "other, be buried in a Church, and have his Coat-armour and Pennions with his arms, and such other Ensigns of honour as "belong to his degree or order, set up in the Church, or if a Grave-stone, or Tomb, be laid or made for a Monument of him, in 'this case, although the freehold of the Church be in the Parson, ' and that these be annexed to the freehold, yet eannot the Parson, or any other, take them or deface them, but he is subject to an "action to the heir and his heirs in the honour and memory of 'whose ancestor they were set up. (1 Inst. 18.)-DR. WATSON says, "This is to be understood of such Monuments only as are set up in "the Aisles belonging to particular persons, or if they are set up in any other part of the Church, he supposeth it to be understood "that they were placed there with the Incumbent's consent." (c. 39.)-DR. GIBSON observing thereupon, saith thus:-" Monu"ments, Coat-armour, and other Ensigns of honour, set up in 66 memory of the deceased, may not be removed at the pleasure of "the ORDINARY, or INCUMBENT. On the contrary, if either they, or any other person, shall take away or deface them, the person "who set them up, shall have an action against them during "his life, and after his death the heir of the Deceased shall have "the same, who (as they say) is inheritable to arms and the like, as to heir-looms; and it avails not, that they are annexed to the 'freehold, though that is in the Parson." (Cod. 453, 454.).... (See further "Removing" postea).-BURN's Eccl. L. Phil. 1. 272.; abbreviated in CRIPPS' 424; ROGERS' 156; STEER'S 37; STEPHEN'S 211. 214; HOOK's Church Dict. p. 453. 66 DR. BURN adds:-M. 10. Geo. SIR THOMAS BURY set up his 'Arms in the Church of St David's, Exeter. The Ordinary pro'motes a suit in the Spiritual Court to deface them, as being set up 'without his consent. It was moved for a prohibition, on the au'thorities that action lies by the heir for defacing the Monument "of his ancestor; but EYRE, and FORTESCUE, Justices, said, the 'Ordinary was judge what Ornaments were proper, and might "order them to be defaced. The same was afterwards moved in the Court of Common Pleas, and denied there also. (Palmer v. Bp. of Exeter. Stra. 576.)'-Eccl. L. Phil. 1. 372. Chief Justice BEST decided, in Spooner v. Brewster, that:"The possession and right of property in Tombstones erected in a Churchyard, like the Monuments in the Church, belong to those who erected them; and if any one defaces or injures them, the owners may have an action against the wrong-doer. (2 C. & P. 14.). But if the Incumbent, in exercise of his general discretion and authority over the whole freehold of the Church, injures them, or causes them to be removed, it seems that no remedy lies against him, unless the erection was made under the sanction of a "Faculty." (Bryan v. Whistler. 8. B. & C. 288.).-CRIPPS 433; STEER 49; see also STEPHENS 213. Damaging by Cattle.-' If a Minister turn Horses or Cattle in the Churchyard to graze, by which means the Graves are trampled on, or defaced, and the Tombstones, or Trees injured, 'the Ordinary might most properly interfere to order their remo.. val; as in the case of unseemly Monuments erected within the 'Church. Or the Minister might be libelled in the Ecclesiastical 'Court at the suit of the Churchwardens for Nuisance in the Churchyard.'-CRIPPS. 429. Divine Service not to be impeded. The building or erecting of Sepulchres, Tombs, or other Monuments, ought not to be an incumbrance, or annoyance to the Church, or any way hindering or incommoding either the Minister in performing any of the Divine Offices, or the Parishioners in partaking of them. In this case the Ordinary has the power to give directions for their removal, and the Churchwardens will be justified in the executing of those directions: for the original intent of the Church being the service of God Almighty, nothing is to be permitted there which shall be any way obstructive of it; and of what is so, or is not so, the Bishop is the sole judge: and therefore no one can be safe in any new erection there who has not had the Bishop's licence for the same, especially in setting up Altar-Monuments, which mostly in the end are a nuisance and incumbrance to the Church, wherever they are placed.' (3 Inst. 202; 3 Bing. 136; 10 Moo. 484).-BURN. i. 272, 372; PRIDEAUX Chr. Guide. 268. Epitaphs.-See infra. Faculty Necessary.-No Monuments &c. can be legally erected in any CHURCH or CHURCHYARD without permission of the ORDINARY, and this is conferred by "Faculty." Because, as LORD STOWELL says:-"It is to his care that the "Fabric of the Church is committed, that it shall not be injured or "deformed by the caprice of individuals." (Maidman v. Malpas 1 Cons. R. 208.) In the same case it was decided, that a Monument once erected cannot be taken down, or defaced, without a 'Faculty.'-BURN i. 273; STEPHENS 211. LORD ELLENBOROUGH-in the Court of King's Bench in Bulwer v. Hase, 1803, where the Rector of a Parish applied for a prohibition to restrain the ORDINARY from granting a Faculty to a party for stopping up a Window in the Church, against which it was proposed to erect a Monument,-held the application of the Incumbent to be premature, so that it was not decided on its merits; but, said the Judge, 'the Faculty sought to be obtained was no เ more than a Licence from the Ordinary himself to do the act proposed, and would not bind the Rector against his consent, if by law his consent were material; and non constat, that after his consent were obtained, the defendant would make use of it, ' without obtaining the consent of the Rector also.' It was decided to be no ground for a prohibition, but mere matter of appeal. (3 East. 217.)-BURN i. 273. a; ROGERS 520; STEPHENS 212. MR. ROGERS states that:-'In order to have a Monument erected in the Church, the course is to apply to the ORDINARY for a Faculty;' for he is to judge of the convenience of allowing 'Tombs or Monuments to be erected....The consent of the Incum"bent alone is frequently acted upon on such occasions, and especially of the Rector for Monuments in the Chancel; and & Faculty' is frequently omitted under the confidence reposed in the Minister. (Maidman v. Malpas. 1 Hagg. Con. 208; Bardin v. Calcot. ib. 14; Hopper v. Davis. 2 Lee. 640.). With regard to buildings of height, the authority is wholly reserved to the Ordinary, and permission ought not to be granted without 'his authority in some manner interposed. (1 Hagg. Con. 14.).... The erecting Tombstones in the CHURCHYARD without a Faculty 'may be punished in the Ecclesiastical Court, and the party 'obliged by a decree of that Court to remove them.' (ib.)-Eccl. L. 517; STEER 36. 48. In Seager v. Bowle,-(A criminal proceeding against a Parishioner for erecting a Monument in a Church without a Faculty, and to shew cause why it should not be removed;)-Notwithstanding the defendant had obtained the consent of the Minister and Churchwardens, the Court of Delegates, on appeal, reversed the decision of a peculiar jurisdiction, and admitted the allegation, thereby deciding that no practice can legalize the erection of a Monument without a Faculty. (1 Add. 541, 544. n.)-ROGERS 520; STEER 36; WADDILOVE 189, 249; CHR. REMEMBRANCER. October 1833. Still, the Court of Delegates maintained (in Hopper v. Davis). that where a Monument had been set up with the Parson's consent, it was sufficient; for although the Ordinary might interpose, yet if he did not interpose, the Parson's consent was enough. (1 Lee. 648)-WADDILOVE 249. The cost of a Faculty in this Diocese (Ely) is about £16.: one and the same 'Form' being usually employed, it is immaterial whether it be for a Monument, Tomb, Tablet, &c. or an Organ. Still, the possession of a 'Faculty' for erecting a Monument, Gravestone, &c. will not set aside the claim of the Incumbent for his customary Fees. Fees. The generality of writers on Ecclesiastical Law allow, that the INCUMBENT may demand a' Fee' for the erection of a Monument, Gravestone, &c.; but it should be such as has been accustomed to be paid where a custom prevails; and if there has been no custom, it is said that he may prescribe bis own reasonable terms. He should take care that no Monument, Gravestone, &c. be erected till the Fees are paid, otherwise he has but an expensive remedy. The Churchwardens, Sexton, or other person, entrusted with the care and custody of the Church and Churchyard, should be instructed never to allow a Grave-Stone &c. to be admitted, or removed, or the soil of the Churchyard in any way to be disturbed, without the authority of the Incumbent, (or his representative, if non-resident) expressed in writing, and which should be issued on every occasion. If the Fee' be objected to, the Incumbent can refuse to admit the Monument, &c. The alternative is an appeal from the applicants to the Ordinary; but such a step is not likely to be resorted to on their part, since it would entail upon them the additional expence of a Faculty' before their object could be obtained. The nonpayment of the Incumbent's Fees, however, will not retard the granting of a 'Faculty. (See Custom' Supra.) ་ DR. BURN is of opinion: Whether a Fee is due to the 'INCUMBENT for erecting a Gravestone or Monument in the 'CHURCHYARD hath been questioned by some, and no case hath ' occurred wherein the same hath received a judicial determination. It seemeth to be an argument in favour of the Incumbent, 'that although it is necessary to bury the dead, yet it is not necessary to erect Monuments; and after the soil hath been 'broken for interring the Dead, the grass will grow again, and 'continue beneficial to the Incumbent; but after the erection of a Monument, there ceaseth to be any further produce of the soil in that place. And if the Incumbent's leave is ne" cessary for erecting a Monument, it seemeth that he may prescribe his own reasonable terms; or if an accustomed Fee 'hath been paid, that such custom ought to be observed.'-Eccl. L. Phil. i. 272; and quoted by STEER 49; STEPHENS 211. MR. ROGERS (Barrister-at-Law) is of opinion with respect to the Fees for Monuments and Gravestones, that 'The Incumbent is not entitled by any general law or custom to demand a Fee for their being made, or affixed, though it may be due to him by special custom; but even if entitled, he cannot delay the grant of a Faculty' till his Fee is paid, for such a grant would not 'preclude him from recovering his Fees, if legally entitled to 'them.' (Rich v. Rushnell. 4 Hagg. 154.).-Eccl. L. 122. See also Bardin v. Calcot 1 Hagg. Con. 14; Littlewood v. Williams 6 Taunt. 280. Recovery of Fees due by custom, where this may be denied, or the amount disputed, is by Common Law; (GIBS. Cod. 542; 1 Salk. 334); or they may be sued for in the Ecclesiastical Court, as well as by an action at Law. (Spry. v. Par. of St. Marylebone. 2 Curt. 11; Spry. v. Emperor. 6 M. & W. 639.)-ROGERS 122; WADDILOVE 96. DR. LUSHINGTON observes (in 1824): In the case of a Tombstone erected with permission of the Incumbent, and subsequent refusal of the Fee, it appears that no remedy remains but at Common Law; where the custom must be strictly proved....The 'Incumbent should have insisted upon payment before he permitted the stone to be erected. Having permitted it, he cannot remove 'it.'-CHR. REMEMBRANCER April, June, 1834. The Sum charged, as well as the appropriation of the amount, varies in different Parishes; being dependent in some cases upon the special custom of the place, in others upon local Acts, and in some upon the scale allowed by the Ordinary. To cite therefore any general' Table of Fees' illustrative of the Charges made in a city, town, or village, would be impossible: the following Scale, however, will convey some idea of the different items, and the Fees charged, in very many country Parishes. But in London these Fees are considerably higher. £ s d Monument, or Tomb in the Chancel........about 21 0 0 Monument, or Tomb in the Church-yard.. about Flat Grave-Stone 550 10 10 0 2 2 0 1 1 0 0 10 6 Every Fresh Initial Letter, or Date on a Foot Stone (each letter, or figure) Iron, or Wooden Railings round a Monument, 05 0 0 10 6 0 7 6 1 1 0 050 006 Tomb, Vault, or Grave ..........from 5 Gs. to 10 10 0 NON-PARISHIONERS pay double Fees. When Fees are not established, they are perpetually open to dispute to avoid this unpleasantness it has been recommended, that the INCUMBENT, and Parishioners in Vestry assembled, should draw up a Scale of Charges, and present it to the PATRON and the ORDINARY for their approval. This Scale, if confirmed and attested by the signatures of the PATRON and ORDINARY, is held to be binding upon the Incumbent, and his Parishioners; and it should be hung up for general reference, either in the Vestry Room, or in some convenient place in the Church. Flat Stones, Coped Grave-Stones, Head, and Foot Stones, and Wooden Memorials, are usually erected by permission of the Incumbent alone; and with this the Ordinary, by |