sibi ipsis inferunt mortem. But in Wilkins's Councils (c), the 5th chapter of the 2nd book of the Poenitential of Egbert, archbishop of York, written about the year 750, (which chapter is plainly taken from the canon of Braga,) adds this limitation, "If they do it by the instigation of the devil." And at p. 232, the 15th of the canons published in King Edgar's time, about the year 960, adds a further limitation, "If they do it voluntarily by the instigation of the devil." These two authorities Wheatly on the Common Prayer quotes from Johnson's collection, to prove that our old ecclesiastical laws make no exception in favour of those who kill themselves in distraction. But they prove, even as they stand in Johnson, that such were not comprehended under those laws. And accordingly, the Decretum of Gratian (d), inserting the canon of Braga, adds to it "voluntarie." And the note there is, "secus, si per furorem: tunc non imputaretur."

Now we should not, without necessity, understand our own rubric to be so much severer than the preceding constitutions, as to place mad people in the same rank with excommunicate and unbaptized persons, and to punish a poor creature for what in him indeed was no crime.

The proper judges whether persons who died by their own hands were out of their senses are, doubtless, the coroner's jury. Or if the body cannot be viewed, the justices in session may inquire of the felony (e); but their finding is traversable. The minister of the parish has 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 circumstances 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 seems that a clergyman may and ought to admit that body to Christian burial. The inquisition of (c) Vol. i. p. 129. (d) Part 2nd, caus. 23, qu. 5,

сар. 12.

(e) 3 Inst. 55.

Burial of suicides.

As a general rule no body

to be buried in churchyard without service.

Office of burial.

the coroner, upon view of the body, is not traversable by the executors or administrators of the deceased; but evidence shall be heard by him to prove the deceased non compos; which, if he refuse, the inquisition may be quashed by the King's Bench, who are the sovereign coroners (ƒ). By 4 Geo. 4, c. 52, it is enacted that from and after 8th July, 1823, it shall not be lawful for any coroner or other officer having authority to hold inquests, to issue any warrant or other process directing the interment of the remains of persons, against whom a finding of felo de se shall be had, in any public highway; but such coroner or other officer shall give directions for the private interment of the remains of such person felo de se without any stake being driven through the body of such person, in the churchyard or other burial ground of the parish or place in which the remains of such person might, by the laws and customs of England, be interred, if the verdict of felo de se had not been found against such person. Such interment to be made within twenty-four hours from the finding of the inquisition, and to take place between the hours of nine and twelve at night.

By sect. 2, nothing herein shall authorize the performing any of the rites of Christian burial on the interment of the remains of any such persons, except so far as it relates to the interment of such remains in such churchyard or burial ground at such time and in such manner as aforesaid. In Kemp v. Wickes (g) Sir John Nicholl says, "Our church knows no such indecency as putting the body into the consecrated ground without the service being at the same time performed;" and cites the act 3 Jac. 1, c. 5, compelling such service to be read over popish recusants, which has been repealed, as the 4 Geo. 4, c. 52 has been enacted, since the delivery of this judgment.

What is a "convenient warning" must depend in some degree on the facts of each case. The law on this subject was considered in Titchmarsh v. Chapman (h).

By the rubric: "The priests and clerks meeting the corpse at the entrance of the churchyard, and going before it either into the church or towards the grave, shall say as is there appointed."

By which it seems to be discretionary in the minister whether the corpse shall be carried into the church or not. And there may be good reason for this, especially in cases of infection.

It is illegal for a layman or for any one, unless he be (h) 1 Roberts, 175; 3 Notes of Cases, 370.

(f) 3 Inst. 55; 1 H. P. C.

415.

(g) 3 Phill. Rep. 295.

lawfully authorized, to read or assist in reading a burial service in consecrated ground over a dead body, Johnson v. Friend and Ballard (i).

By Can. 67 of 1603, "After the party's death, there Ringing at shall be rung no more but one short peal, and one before funerals. the burial, and one other after the burial."

The registration of burials as ordered by Can. 70 of Registration 1603, and 52 Geo. 3, c. 146, has been treated of at length of burials. under the chapter on Baptism (k).

It is only necessary to add that the form of register, as provided by the statute, for burials is as follows:

"SCHEDULE C.

Burials in the parish of A., in the county of B., in the year
one thousand eight hundred and thirteen.

And that where the burial takes place in any place other than the parish church or churchyard, or the chapel or chapelyard of a chapelry having its own registers under sect. 4 of the act, the form of certificate of burial is as follows:

"I

"SCHEDULE D.

day

do hereby certify that on the A. B. of aged was buried in [stating the place of burial], and that the ceremony of burial was performed according to the rites of the United Church of England and Ireland by me,

"To the rector [or as the case may be] of

The registration of burials in cemeteries under 10 & 11

Vict. c. 65, has been already mentioned (1).

SECT. 4.-Fees on Burial.

"We do firmly enjoin that burial shall not be denied to Constituti n any one, upon the account of any sum of money; because of Archbishop if anything hath been accustomed to be given by the pious Langton.

(i) 6 Jur., N. S. 280.
(k) Vide supra, Part III., Chap.

II. pp. 648-656.

(1) Vide supra, p. 846.

Constitution

devotion of the faithful, we will that justice be done thereof Archbishop upon to the churches by the ordinary of the place afterLangton. wards" (m).

Shall not be denied.]-Or delayed (n).

Upon the account of any sum of money.]-For burial ought not to be sold: but albeit the clergy may not demand anything for burial, yet the laity may be compelled to observe pious and laudable customs. But in such case the clerk must not demand anything for the ground, or for the office; but if he shall allege, that for every dead person so much has been accustomed to be given to the minister or to the church, he shall recover it (o).

Hath been accustomed to be given.]-That is, of old, and for so long time as will create a prescription, although at first given voluntarily. For they who have paid so long are presumed at first to have bound themselves voluntarily thereunto (p). Sir Simon Degge says, that the accustomed fee to the parson for breaking the soil in the churchyard, is for the most part 3s. 4d. and for breaking the floor in the chancel 6s. 8d. (g).

In Topsal v. Ferrers (15 Jac. 1), Edward Topsal, parson of St. Botolph's without Aldersgate, London, and the churchwardens of the same, libelled in the ecclesiastical court against Sir John Ferrers, and alleged that there was a custom within the city of London, and especially within that parish, that if any person being man or woman die within that parish, and be carried out of the parish to be buried elsewhere, in such case there ought to be paid to the parson of this parish if he or she be buried elsewhere in the chancel so much, and to the churchwardens so much, being the sums that they alleged were by custom payable unto them for such as were buried in their own chancel; and then alleging that the wife of Sir John Ferrers died within the parish, and was carried away and buried in the chancel of another church, and so demanded of him the said sum. Whereupon for Sir John Ferrers a prohibition was prayed, and upon debate it was granted, for this custom is against reason, that he that is no parishioner, but may pass through the parish, or lie in an inn for that night, should if he then die be forced to be buried there, or to pay as if he were, and so upon the matter to pay twice for his burial (r).

The case is cited by Sir G. Lee in a very learned judg

ment, in Patten v. Castleman, where he decided that the claim of a vicar for a fee on the wedding of one of his parishioners in the church of another parish, would not be substantiated, on the general principle of law, that where no service is done no fee can be due (s).

But Dr. Gibson says, a fee for burial belongs to the minister of the parish in which 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 solemn and constant devotions there: also, where the oblations were likely 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 them in 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 ministers (t).

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. And (to take off the weight in some measure of the case of Topsal v. Ferrers) he says, that this right was not denied, but seemingly acknowledged, by the temporal court in the aforesaid case,