the shrouds. In the Lent assizes holden at Leicester, in 11 & 12 Stealing Jac. 1, the case was, one William Haines had digged up the several graves of three men and one woman in the night, and had taken their winding sheets from their bodies, and buried them again, and it was resolved by the justices at Serjeants' Inn, in Fleet Street, that the property of the sheets remained the owner's, that is, in him who had the property therein, when the dead body was wrapped therewith, for the dead body was not capable of it, and that the taking thereof was felony (j). And a corpse once buried cannot be taken up or removed without licence from the ordinary (k). That is, to be buried in another place, or the like: but in the case of a violent death the coroner may take up the body for his inspection if it is interred before he comes to view it. act. In the case of The Vestry of St. Pancras v. The Vicar and Churchwardens of the Parish of St. Martin-in-theFields (1), it appeared that in 1854 a local act of parliament was obtained to enable the granting of building leases of a certain portion of the cemetery, belonging to the parish of A., which had not previously (it was then supposed) been used for the purposes of interment, and which was particularly described in the schedule annexed to the The trustees, under the powers of the act, contracted for the sale of the ground so described in the schedule; but the contractor, on making excavations therein, found some coffins and remains of bodies. In June, 1858, on the representation that these did not exceed twenty in number, a licence or faculty issued from the Consistory Court of London for the removal of such coffins and remains, in order that they might be decently and properly interred in the inclosed part of the cemetery. Subsequently, without any further authority, between 400 and 500 more coffins were disinterred; and it was holden that the vicar and churchwardens, to whom the faculty had been directed, had exceeded the powers confided to them by the ordinary; that they must return the faculty into the (i) Lynn's case, 2 Term Rep. 733. (j) 12 Co. 113. (k) Gibs. 454. Bodies not to be removed without a faculty. be removed without a faculty. Bodies not to registry, be admonished to re-inter decently all the remains that had been disinterred and to refrain from disturbing the remains of the dead which had been interred in any portion of the cemetery; and that they must pay the costs of the proceedings. Unlawful to without faculty, or licence from Secretary of State. In the case of Sarah Pope (m), a faculty to exhume a body for the purpose of discovering its identity, was granted by the Consistory Court of London. It was holden in Reg. v. Sharpe (n), that it is a misdemeanor to remove without lawful authority a coffin from a burial ground belonging to Protestant Dissenters, though the object was to bury it in a consecrated churchyard. By 20 & 21 Vict. c. 81, s. 25, "Except in the cases remove bodies where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, it shall not be lawful to remove any body, or the remains of any body, which may have been interred in any place of burial without licence under the hand of one of the secretaries of state, and with such precautions as the secretary of state may prescribe as the condition of such licence; and any person who shall remove such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal, shall, on summary conviction before any two justices of the peace, forfeit and pay for every such offence a sum not exceeding ten pounds. Lord Coke's opinion. SECT. 7.-Monuments of the Dead. Lord Coke says, concerning the building or erecting of tombs, sepulchres, or monuments for the deceased, in church, chancel, common chapel, or churchyard, in convenient manner, it is lawful; for it is the last work of charity that can be done for the deceased, who whilst he lived was a lively temple of the Holy Ghost, with a reverend regard and Christian hope of a joyful resurrection. And the defacing of them is punishable by the common law, as it appears in the book of the 9 Edw. 4, c. 14 (the Lady Wiche's case, wife of Sir Hugh Wiche), and so it was agreed by the whole court, in 10 Jac. 1, in the Common Pleas, in Corven v. Pym. And for the defacing thereof, they that build or erect the same shall have the action during their lives (as the Lady Wiche had in the case of (m) 15 Jur. 614 (1851). (n) 1 Dears. & B., C. C. R. 160. the 9 Edw. 4); and after their deceases, the heir of the deceased shall have the action. But the building or erecting of the sepulchre, tomb, or other monument, ought not to be to the hindrance of the celebration of divine service (o). And again, he says, 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 gravestone 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 cannot 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 (p). But Dr. Watson says, this is to be understood of such Dr. Watson. 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 supposes it to be understood that they were placed there with the incumbent's consent (9). And Dr. Gibson observing thereupon, says thus: Dr. Gibson. "Monuments, coat armour, and other ensigns of honour, set up in 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. But this, he says (as he conceives), is to be understood with one limitation,-if they were first set up with consent of the ordinary; for though (as my Lord Coke says) tombs, sepulchres or monuments may be erected for the deceased in church or chancel in convenient manner, the ordinary must be allowed the proper judge of that conveniency, inasmuch as such erecting (for so he adds) ought not to be to the hindrance of the celebration of divine service; and if they are erected without consent, and upon inquiry and inspection be found to the hindrance of divine service, it will not (he supposes) be denied that in such case the ordinary has sufficient authority to (0) 3 Inst. 202. (p) 1 Inst. 18. P. VOL. I. (2) Wats. c. 39. 3 L Whether any fee for erecting. Monuments to be erected by faculty. Quare as to flat stone? Power of ordinary. decree a removal without any danger of an action at law" (r). And in Palmer v. Bishop of Exeter (s), in 10 Geo. 1, it was holden that the ordinary may bring a suit to have monuments set up without his consent removed. Whether a fee is due to the incumbent for erecting a gravestone or monument in the churchyard has been questioned by some, and no case has occurred wherein the same has received a judicial determination. It seems 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 has been broken for interring the dead, the grass will grow again, and continue beneficial in the incumbent; but after the erection of a monument, there ceases to be any further produce of the soil in that place. And if the incumbent's leave is necessary for the erecting a monument, it seems that he may prescribe his own reasonable terms; or if an accustomed fee has been paid, that such custom ought to be observed. In Bardin v. Calcott (t), where the office of the judge was promoted, Lord Stowell said, as to buildings of height the authority is reserved to the ordinary, and permission ought not to be granted without his authority in some manner interposed. The proper mode, strictly speaking, is to apply to the ordinary for a faculty, who calls on all persons having a right to show cause why it should not be done, and hears and determines on the force of any objections that be made against it. The third Institute leaves the matter at large; but all commentators say that the ordinary is to judge of the convenience of allowing tombs or monuments to be erected, and that if done without his consent, he has sufficient authority to decree their removal. There is a difference (he says) between a flat stone and that of a building of greater height. In Maidman v. Malpas (u), also, it is laid down by the same learned judge, that the permission of the ordinary is requisite before a monument can properly be erected. 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. The consent of the incumbents is usually taken on such occasions, and especially of the rector for monuments in the chancel. A faculty likewise is required, though it is frequently omitted, under the confidence reposed in the minister, and the ecclesiastical court is not (r) Gibs. 453, 454. See also (t) 1 Consist. Rep. 14. should be asked. eager to interpose; but when cases are brought before it, it is necessary to inquire whether the thing is proper to be done, and whether the consent of the incumbent has been obtained. In Beckwith v. Harding (v) it was said, that a Whose consent custom for the churchwardens of a parish to set up monuments, &c. in a church, without either the consent of the rector or ordinary, was bad. In Seager v. Bowle (x), Dr. Addams's note says, the court may be taken to have expressed its final judgment, that no practice can absolutely legalize the erection of a monument without a faculty. It is observed, too, in Maidman v. Malpas, cited above, that a monument, once erected, cannot be taken down without the consent of the ordinary. In Hopper v. Davis (y) it is said, the ordinary may order a monument to be taken down, if placed inconveniently; but the court here inti- May be taken mates, that the incumbent's consent will usually satisfy the down, if illeordinary. In Sharpe and Sangster v. Hansard (z), the gally erected. court granted a faculty to lay flat, upright head-stones and foot-stones, inserting a clause that no expense should fall on individuals. This was under particular circumstances. The plan had been adopted by the unanimous report of a committee, chosen by the vestry, and was opposed only by one individual, who failed in proving that it would be accompanied by any substantial inconvenience. In Bulwer v. Hase (a), a rector was cited to show cause why the ordinary should not grant to a parishioner a faculty for stopping up a window in the church, against which it was Refusal of proposed to erect a monument; to the granting of which faculty ground the rector dissented; notwithstanding which the court not for profor appeal, below were proceeding to grant the faculty, with the con- hibition. sent of the ordinary. This was holden to be no ground for a prohibition, but mere matter of appeal (b), if the rector's reasons for dissenting were improperly overruled. tombstone. The courts of common law will in some cases punish, as Action of well as the ecclesiastical courts, the removal of a tomb- trespass for stone. In Horner v. Brewster (c), trespass was main- removing a tained for taking away a tombstone from a churchyard, and obliterating an inscription made upon it, at the suit of the party by whom it was erected, although the freehold of the churchyard is in the parson; as the right to a tombstone vests in the person who erects it, or in the heirs of the deceased in whose memory it is set up. (v) 1 Barn. & Ad. 508. (x) 1 Add. 541. (y) 1 Lee's Rep. 640. (*) 3 Hagg. Rep. 335. (a) 3 East, 217. (b) That such an appeal will lie, see Cart v. Marsh, Str. 1080. (c) 10 Moore, 494; 3 Bing. 136; 2 C. & P. 34. |