death of the child he applied to the relieving officer of that parish for assistance to bury the child. The relieving officer required the prisoner to sign an undertaking, on demand, to repay the guardians of the union the sum advanced by way of loan in payment for the coffin and ground for the child.(f) This was refused by the prisoner, and the relieving officer refused to render him any assistance in the burial of the child, and the body in consequence remained unburied and occasioned a nuisance. The jury were directed that the prisoner was bound to provide for the burial of his deceased child, if he could by any lawful way procure the means of doing so; and that as the prisoner had been offered relief for the purpose of burial by way of loan, he was bound to receive it, and that consequently he was not excused from his liability to provide for the interment of the deceased, and was liable to be convicted for the nuisance. But, upon a case reserved, the judges were unanimously of opinion that this direction was wrong; for although it was perfectly true that the prisoner, if he had the means, was bound to provide for the burial of his child, yet he was not bound to incur a debt for that purpose, and consequently he was not bound to accept the loan on the terms proposed to him.(g) The refusal or neglect to bury dead bodies by those whose duty it is to perform the office, appears also to have been considered as a misdemeanor. Thus, Abney, J., in delivering the opinion of the Court of Common Pleas, said, "The burial of the dead is (as I apprehend) the duty of every parochial priest and minister; and if he neglect or refuse to perform the office, he may, by the express words of Canon 86, be suspended by the Ordinary for three months. And if any temporal inconvenience arise, as a nuisance, from the neglect of the interment of the dead corpse, he is punishable also by the temporal Courts, by indictment or information."(h) *632] *It was held, after elaborate argument, that a child who has received the outward and visible form of baptism by a dissenting minister, not being a lawful minister of the Church of England, nor episcopally ordained, is to be considered as baptized, and is entitled to have the burial service read at its interment by the clergyman of the parish in which it dies; and that the refusal to read the service over a child so baptized brings the party so refusing within the provisions of Canon 86, and the Court is bound to pronounce that the party is subject to suspension for three months, and also to the costs of the proceedings (i)

The right of sepulture in the parish churchyard is a common law right; but the mode of burial a subject of ecclesiastical cognizance alone. If therefore a clergyman were absolutely to refuse to bury the body of a dead person brought for interment in the usual way, it seems that the Court of Queen's Bench would grant a mandamus to compel him to inter the body; but that Court will not grant a mandamus to compel a clergyman to bury a body in an unusual and extraordinary manner, e. g. in an iron coffin.(k)

Every person dying in this country and not within certain exclusions laid down by the ecclesiastical law, has a right to Christian burial; and that implies the right to be carried from the place where his body lies to the parish cemetery (1) The common law casts on some one the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds

f) This was done under an order of the poor law commissioners and an order of the guardians.

(g) Reg. v. Vann, supra.

(h) Andrews v. Cawthorne, Willes 537, note (a). Abney, J., cited a case, H. 7 G. 1, B. R. where the Court made a rule upon the Rector of Daventry, in Northamptonshire, to show cause why an information should not be filed, because he neglected to bury a poor parishioner who died in that parish. See this case as stated in Mastin v. Escott, reported by Dr. Curteis, p. 268, and the affidavits used in it, in the Appendix to that case, p. 291, et seq.

(i) Mastin v. Escott, decided in the Arches Court of Canterbury, May 8th, 1841, by Sir H. Jenner, and reported by Dr. Curteis. The ground of this decision was that a child baptized by a layman was validly baptized, and a Wesleyan minister, by whom the child was baptized, could be considered, with reference to this question, in no other light than as a layman. In Kemp r. Wickes, 3 Phill. Rep. 264, a similar decision had been made with reference to a person baptized by a minister of the Calvinistic Independents.

(k) Rex v. Coleridge, 2 B. & Ald. 806.

(1) Per Lord Denman, C J., Reg. v. Stewart, 12 A. & E. 773.

for that purpose. (m) It should seem that the person under whose roof a poor person dies is bound to carry the body, decently covered, to the place of burial: he cannot keep him unburied, nor do anything which prevents Christian burial; he cannot, therefore cast him out, so as to expose the body to violation, or to offend the feelings or endanger the health of the living: and, for the same reason, he cannot carry him uncovered to the grave. It will probably be found, therefore, that where a pauper dies in any parish house, poor house, or union house, that circumstance casts on the parish or union, as the case may be, to bury the body; not by virtue of the statute of Elizabeth, but on the principles of the common law. (n) But the duty is not cast upon the overseers, where the death does not take place under the roof of any parish house, or that which, under the circumstances, may be considered as such. A married woman residing with her husband in a parish was admitted as an in-patient in a hospital in that parish, and died in it, and the husband was unable from poverty to take the body away and bury it; he was receiving weekly relief from the parish and he believed that he was settled in it. The parish officers *had been requested to bury the body, but had refused. The Court of Queen's Bench held that the burial of a pauper receiving relief, but not dying in any [*633 parish house, was not within the objects of 43 Eliz. c. 2, expressed or implied; and, after laying down the principles above stated, held that those principles would rather cast the burden on the hospital than on the parish, and formed an additional, though not a necessary reason for holding that the parish was not bound to bury the body.(0)

The 7 & 8 Vict. c. 101, s. 31, makes it lawful for guardians, or where there are no guardians for overseers, to bury the body of any poor person which may be within the parish or union, and to charge the expense to any parish within their control to which such person may have been chargeable, or in which he may have died, or otherwise in which such body may be; and unless the guardians, in compliance with the desire of such person expressed in his lifetime, or by any of his relations, or for any other cause, direct the body to be buried in the churchyard or burial-ground of the parish to which such person has been chargeable (which they are authorized to do), every dead body which the guardians or any of their officers duly authorized shall direct to be buried at the expense of the poorrates shall (unless the deceased person or the husband or wife or next of kin of such deceased person have otherwise desired) be buried in the churchyard or other consecrated burial-ground in or belonging to the parish, division of parish, chapelry or place in which the death may have occurred; and, after providing for the burial fees, the clause forbids any officer connected with the relief of the poor to receive any money for the burial of the body of any poor person, or to act as undertaker for personal gain or reward, or to receive any money from any dissecting school or school of anatomy or hospital or from any person to whom any such body may be delivered, or to derive any personal emolument for or in respect of the burial or disposal of any such body, under a penalty recoverable before two justices of the peace.(p)

The 2 & 3 Will. 4, c. 75, "An Act for regulating Schools of Anatomy," authorizes the Secretary of State for the Home Department to grant "a license to practice anatomy to any fellow or member of any college of physicians or surgeons, or to any graduate or licentiate in medicine, or to any person lawfully qualified to practice medicine in any part of the United Kingdom, or to any professor or teacher of anatomy, medicine, or surgery, or to any student attending any school of anatomy, on application from such party for such purpose, countersigned by two of his Majesty's justices of the peace acting for the county, city, borough, or place wherein such party resides, certifying that, to their knowledge or belief, such party so applying is about to carry on the practice of anatomy."

(m) Per Lord Denman, C. J., Ibid. (9) Reg. v. Stewart, supra.

(n) Ibid.

(p) The 18 & 19 Vict. c. 79, s. 1, where the burial-ground of a parish is closed or overcrowded, empowers the guardians or overseers to bury the poor in a neighboring parish; and sec. 2 empowers them to enter into agreement with cemetery companies and burial boards for the burial of the poor.

Sec. 2 The Secretary of State may appoint inspectors of places where anatomy is carried on; and by sec. 3, may direct what *district such inspectors shall *634] superintend. Sec. 4, every inspector is to make a quarterly return to the Secretary of State of every body that, during the preceding quarter, has been removed for examination to every separate place in his district where anatomy is carried on, distinguishing the sex, and, as far as is known at the time, the name and age of each person whose body was so removed.

Sec. 5. Inspectors may visit and, inspect, at any time, any place, within their district, notice of which place has been given, that it is therein intended to practice anatomy.

Sec. 7. "It shall be lawful for any executor or other party having lawful possession of the body of any deceased person, and not being an undertaker or other party intrusted with the body for the purpose only of interment, to permit the body of such deceased person to undergo anatomical examination, unless, to the knowledge of such executor or other party, such person shall have expressed his desire, either in writing at any time during his life, or verbally in the presence of two or more witnesses during the illness whereof he died, that his body after death might not undergo such examination, or unless the surviving husband or wife, or any known relative of the deceased person, shall require the body to be interred without such examination."

Sec. 8. "If any person, either in writing at any time during his life, or verbally in the presence of two or more witnesses during the illness whereof he died, shall direct that his body after death be examined anatomically, or shall nominate any party by this Act authorized to examine bodies anatomically to make such examination, and if, before the burial of the body of such person, such direction or nomination shall be made known to the party having lawful possession of the dead body, then such last-mentioned party shall direct such examination to be made, and, in case of any such nomination as aforesaid, shall request and permit any party so authorized and nominated as aforesaid to make such examination, unless the deceased person's surviving husband or wife, or nearest known relative, or any one or more of such person's nearest known relatives, being of kin in the same degree, shall require the body to be interred without such examination."

Sec. 9. No body is to be removed for anatomical examination from the place where such person died until after forty-eight hours from the death, nor unless a certificate, stating in what manner such person came by his death, shall have been given by the medical man who attended such person, or who examined the body after death.

Sec. 10. "It shall be lawful for any member or fellow of any college of physicians or surgeons, or any graduate or licentiate in medicine, or any person lawfully qualified to practice medicine in any part of the United Kingdom, or any professor, teacher, or student of anatomy, medicine, or surgery, having a license from his Majesty's principal Secretary of State or chief secretary as aforesaid, to receive or possess for anatomical examination, or to examine anatomically, the body of any person deceased, if permitted or directed so to do by a party who had at the time of giving such permission or direction lawful possession of the body, and who had *635] power, in pursuance of the provisions of this Act, to *permit or cause the body to be so examined, and provided such certificate as aforesaid were delivered by such party together with the body."

Sec. 11. Such persons are to receive a certificate with the body, and transmit it and a return of the time the body was received, and other matters, to the inspector of the district.

Sec. 12. Notice is to be given to the Secretary of State of places where anatomy is intended to be practiced.

Sec. 13. Bodies are to be removed in a decent coffin or shell, and after undergoing anatomical examination are to be decently interred in consecrated ground, or in some public burial-ground, in use for persons of that religious persuasion to which the person whose body was so removed belonged.

Sec. 14.

No member or fellow of any college of physicians or surgeons, nor any graduate or licentiate in medicine, nor any person lawfully qualified to practice medicine in any part of the United Kingdom, nor any professor, teacher, or student

of anatomy, medicine, or surgery, having a license from his Majesty's principal Secretary of State or chief Secretary as aforesaid, shall be liable to any prosecution, penalty, forfeiture, or punishment for receiving or having in his possession for anatomical examination, or for examining anatomically, any dead human body, according to the provisions of this Act."

Sec. 15. The Act is not to prohibit post mortem examinations directed by competent authority.

Sec. 18. "Any person offending against the provisions of this Act in England or Ireland shall be deemed and taken to be guilty of a misdemeanor, and being duly convicted thereof, shall be punished by imprisonment for a term not exceeding three months, or by a fine not exceeding fifty pounds, at the discretion of the Court before which he shall be tried; and any person offending against the provisions of this Act in Scotland shall, upon being duly convicted of such offence, be punished by imprisonment for a term not exceeding three months, or by a fine not exceeding fifty pounds, at the discretion of the Court before which he shall be tried."

Sec. 19. "The words 'person' and 'party' shall be respectively deemed to include any number of persons, or any society, whether by charter or otherwise; and the meaning of the aforesaid words shall not be restricted although the same may be subsequently referred to in the singular number and masculine gender only."

The prisoner, the master of a workhouse, was indicted for disposing of the dead bodies of some of the paupers who died in the workhouse, for the purpose of dissection, and for gain and profit to himself. He had in collusion with an undertaker caused the bodies of several paupers to be shown to their relatives in coffins, and every appearance of regular funerals to be gone through, and the relatives followed to the cemetery what they supposed to be the body of the deceased, when in reality just before the funeral left the work house, other coffins were substituted for those the relatives had seen, and the bodies were in the evening taken to Guy's Hospital for dissection, all the necessary formalities required by the 2 & 3 Will. 4, c. 75, having been duly complied with. In no case did the relatives of the deceased persons in *terms require that their bodies should be buried without anatomical examina-' [*636 tion; and indeed they appeared to have believed that the bodies were buried without any such examination. It did not appear that the prisoner made any regular charge to the hospital or surgeons in respect of the bodies supplied to them; but in 1856 he received £19 10s., and in 1857 £26 from Guy's Hospital as gratuities for his trouble in going through the formalities, giving the notices and obtaining the certificates required by the Anatomy Act, and the amount paid him was in proportion to the number of bodies supplied. These payments were in contravention of the 7 & 8 Vict. c. 101, s. 31. The jury found that the prisoner caused the dead bodies of four paupers to be delivered to the undertaker, and delayed the burial of them for an unreasonable length of time, in order that they might be dissected in the meantime, and that he did so for gain and profit for himself; and that he caused the appearance of a funeral of such bodies to be gone through, with a view to prevent their relatives requiring the bodies to be interred without being subject to anatomical examination, and that, but for such supposed funeral, the relatives would have required the bodies to be buried without anatomical examination. It was objected that the prisoner having lawful possession of the bodies as master of the workhouse, might lawfully do what he had done, as no relative had required the bodies to be buried without anatomical examination; and upon a case reserved it was held that this objection was valid, as all that was done by the prisoner was done according to law, for he had legal possession of the bodies, and he did with them. that which the law authorized him to do. And though he fraudulently prevented the relatives from requiring the bodies to be buried without anatomical examination, yet that did not take away the protection given to him by the statute.(q)

(9) Reg. v. Feist, D. & B. C. C. 590. This decision seems clearly wrong, as the master of a workhouse is plainly merely the servant of the guardians or parish officers, and the possession of the workhouse is in them: Governors of the Poor of Bristol v. Waite, 5 A. & E. 1 (31 E. C. L. R.). And the master of a workhouse has no more possession of the things in the workhouse than any servant of the things in his master's house. The dealing with the dead bodies by the prisoner was, therefore, a wholly illegal act. The Court

Provision has been made by statute for the suitable interment of such dead bodies as may be cast on shore from the sea. The 48 Geo. 3, c. 75, enacts that the churchwardens and overseers of parishes in England, in which any dead body shall be found thrown in, or cast on shore from the sea, shall, upon notice of the body lying within their parishes, cause the same to be forthwith removed to some convenient place; and with all convenient speed to be decently interred in the churchyard or burial-ground of such parishes: and if the body be thrown in, or cast on shore in any extra-parochial place, where there is no churchwarden or overseer, a similar duty is imposed upon the constable or headborough of such place.(r)

*637] It is further enacted, that every minister, parish clerk, and *sexton of the respective parishes, shall perform their duties as is customary in other funerals, and admit of such dead body being interred, without any improper loss of time; receiving such sums as in cases of burials made at the expense of the parishes (s) The statute provides also as to the expenses of such burials, and the raising of money to defray them; gives a reward of five shillings to the persons first giving notice to the parish officers, or to the constable or headborough of an extraparochial place, of any dead body being cast on shore; and imposes a penalty of five pounds on persons finding dead bodies and not giving notice, and on parish officers neglecting to execute the Act (1) An appeal to the quarter sessions is also given to any person thinking himself aggrieved by anything done in pursuance of the Act.(u)

The preventing a dead body from being interred has been considered as an indictable offence. Thus, the master of a workhouse, a surgeon, and another person, were indicted for a conspiracy to prevent the burial of a person who had died in a work house.(v) And though Hyde, C. J., upon a question how far the forbearance to sue one who fears to be sued, is a good consideration for a promise.(w) cited a case where a woman who feared that the dead body of her son would be arrested for debt was holden liable, upon a promise to pay in consideration of forbearance, though she was neither executrix nor administratrix ;(x) yet the other judges are said to have doubted of this ;(y) and in a recent case Lord Ellenborough, C. J., said it would be impossible to contend that such a forbearance could be a good consideration for an assumpit.(z) Lord Ellenborough, C. J., continued, "to seize a dead body upon any such pretence would be contra bonos mores, and an extortion upon the relatives." And in a subsequent part of the case, his Lordship said, “As to the case cited by Hyde, C. J., of a mother who promised to pay on forbearance of the plaintiff to arrest the dead body of her son, which she feared he was about to do, it is contrary to every principle of law and moral feeling: such an act is revolting to humanity, and illegal."

A gaoler has no right to detain the body of a person who died in prison for any debts due to himself. Where, therefore, a gaoler refused to deliver up the body of a person, who had died while a prisoner in execution in his custody, to the execu

intimated that possibly the prisoner and undertaker might have been indicted for a conspiracy to prevent the relatives making the requisition; or that the prisoner might be indicted for preventing the requisition being made. Quære, whether an indictment would have lain for causing the funeral service to be performed over the empty coffins? (r) 48 Geo. 3, c. 75, s. 1.

(t) Ibid., ss. 1, 3, 4, 5, 6, 7, 8, 12, 13, 14.

(v) Rex v. Young, cited in Rex v. Lynn, 2 T. R. 734. (w) Quick v. Coppleton, 1 Vent. 161.

(s) Id. Ibid., s. 2.
(u) Id., sec. 10.

(x) The name of the case is not mentioned; but it is said that Hyde, C. J., cited it as a case that occurred in the Court of Common Pleas when he sat there.

(y) Quick v. Coppleton, 1 Vent. 161.

(2) Jones v. Ashburnham, 4 East 460.

1 A case of this nature was brought by indictment before the Supreme Court of Massachusetts, in the county of Barnstable. It was tried at nisi prius, before Chief Justice Parsons; the defendants were convicted, and a small fine imposed upon them, upon the ground that they were ignorant that it was an offence. In this case the corpse was arrested upon a civil process for debt, on its way to the grave, in the public highway, in the presence of the friends of the deceased, and of a procession which attended the

funeral.