TOMBS, VAULTS, TOMBSTONES, TABLETS. In previous articles [COFFIN; INTERMENT] the various modes of disposing of the dead have been discussed ; it is our intention here to show what rights the subjects of this country have, l st, to burial, and 2ndly, to a per mancnt commemoration of themselves by means of monuments. It must be borne in mind that we treat here only of pariah churches and churchyards, or of the parish burying-grounds subsidiary to the churchyard. The cemeteries which the necessities of an increasing population have caused to be established in the neighbourhood of many of our densely inhabited towns are private property, regulated at the pleasure of the proprietors.
By the 68th Canon of 1603 it is ordered that no minister shall refuse or delay, under pain of suspension by the bishop for three months, to bury any corpse that is brought to the church or church yard (convenient warning being given him thereof before), in such form as is prescribed by the Book of Common Prayer, unless the deceased were excommunicated majori excommunicatione, and no man able to testify of his repentance. The Rubric further excludes from Christian burial those who have not been baptised or who have died by their own hands ; and this latter class are defined to be such as have voluntarily killed themselves, being of sound mind, of which fact a coroner's jury are considered by ecclesiastical authorities to be the fitting judges. Thus the ecclesiastical law not only gives to the clergyman the right, but imposes on him the duty to bury, with only three exceptions, all who shall be brought within the precincts of his church. Nevertheless the ecclesiastical courts have admonished a minister and churchwardens to abstain from burying strangers in tho churchyard, when the practice of doing so threatened to interfere with the rights of the parishioners; for the common law gives to the people the right of being buried within the churchyard of their own parishes : " Ubi decimal persolvebat vivus, sepeliatur mortuus;" and although the freehold of the churchyard, as of the church, is in the parson, he holds it only for the benefit of his parishioners, and subject to their right of interment in it.
This right of sepulture, however, applies only to the body : the Canon and the Rubric alike talk as though studiously of the "corpse " alone, never mentioning the coffin. In farmer times the use of coffins was confined to the richer claims, and these were often of stone or of other durable materials [Corm]; but the practice and no doubt the intention was that in the great majority of cases the process of decay, and, therefore, the occupation of the earth, should not be needlessly protracted. To use the words of Lord Stowell, "A common cemetery [by which he means a churchyard or parish burying-ground] is not ra unius (clads, the property of one generation now departed, but is likewise the common property of the living and of generations yet unborn, and is subject only to temporary occupations." On this doctrine are based the main points of the law concerning burials.
The establishment of churchyards is attributed to Cuthbert, arch bishop of Canterbury, who in the year 750 introduced into this country the custom, then existing at Rome, of devoting an enclosed space round the sacred edifice to the interment of those who had been entitled to attend or had been in the habit of attending worship within its walls.
Theretofore, notwithstanding a canon which forbade it (Dc non sepc licndo in Ecclaiis), the clergy interred persons of peculiar sanctity or importance within the walls of the church, especially in the side aisles of the nave, so as to remind the faithful of their example and of the duty of praying for their souls : and hence the rule that a body should not be buried in the church without the consent of the incumbent, he being supposed to be alone able to judge whether the deceased pee the qualities which give him a title to that distinction. The churchyard was anciently held among the res same, and no fees were taken for the use of it : nevertheless the payment of fees to the clergy man dates, in this country at least, from the Reformation, and the non-payment of those fees is held by the ecclesiastical courts a sufficient ground for the clergyman to withhold his offices, or at all events to prevent the erection of any monument or tablet for which he; had previously given his consent ; that consent being supposed to imply the payment of the usual or a stipulated fee. The churchwardens are also entitled to a fee for burials in the church, since on them falls the expense of repairing the pavement. It is even maintained that an incumbent is entitled to a fee upon the burial of his parishioner who has died in his parish and is removed for interment elsewhere. Sir II. Spelman preserves a vestry constitution of 1627 containing a table of fees for burial in the chancel, the nave, and the churchyard ; the iotermente in the churchyard being differently charged as they were " coffined" or "uncoffined." These fees are not imposed at the dis cretion of the parson or of the parish; they are matter of ecclesiastical jurisdiction, and if they deviate from the amounts established by custom, must be approved by the ordinary after consulting the minister and the parishioner& A vault cannot properly be made either in the church or churchyard, without the consent of the ordinary signified by a faculty, that is, a licence or permission, for that purpose; and this he does not grant until he has given the parson and parishioners an opportunity to express their opinions. A vault may be attached by prescription to a mansion ; or again, the proprietors of a mansion may have a prescrip tive right to be interred and to erect a tablet or tombstone in the aisle or chapel appurtenant to that mansion. But it would seem that the right adheres to the mansion, not to the family ; who if they cease to be parishioners relinquish their right to the vault, the use of which may be granted to others. The heir, however, in this and in all cases may obtain an action of trespass at the common law against any one, even the parson or ordinary, who disturbs the remains, or removes or defaces the monument of his ancestor, or the hateliment, pennon, or coat armour suspended over his grave. In some parishes the parishioners have a prescriptive right to place a stone over a grave in the churchyard upon payment of a certain fee established by custom ; but nothing of height can properly ho erected without the consent of the ordinary ; nor can a tomb or tombstone be repaired without the leave of the churchwardens; although the granting of that leave Li a mere formality incumbent on those officers.