constituting that Court, it follows that in respect of the latter jurisdiction their authority remains unaltered. This ground of error appears to us wholly untenable. The grounds of error assigned thus failing, it follows that our judgment must be for the Crown. Judgment for the Crown. Attorney for plaintiff in error: Heritage. 1869 LEVERSON v. THE QUEEN. THE QUEEN v. SIR TRAVERS TWISS. Prohibition to Ecclesiastical Court-Faculty to apply Consecrated Ground to The guardians of the poor of a parish, being owners in fee of land, on part of which a parish workhouse had been erected, and another part of which had been consecrated as a burial ground, prayed a faculty in the Consistory Court of London to authorize the erection of a chapel for the inmates of the workhouse, and other buildings connected with the workhouse, on a part of the consecrated ground in which no bodies had been buried. No sentence had been pronounced by the Consistory Court; and B., a stranger to the parish and having no interest in the matter, obtained a rule for a prohibition to prohibit proceedings in the suit. The Court discharged the rule; first, because, although a faculty ought not to be granted to apply consecrated ground to secular purposes, yet a distinction might be made as to the chapel, being an ecclesiastical purpose; and it was not to be presumed that the inferior court would exceed its jurisdiction and grant the faculty for both the purposes prayed. Secondly, because, in the exercise of its discretion, the Court would not interfere at the instance of a stranger. RULE, obtained at the instance of Albert Bedford, calling on the Worshipful Sir Travers Twiss, Judge of the Consistory Court of London, to shew cause why a writ of prohibition should not issue to prohibit him from further proceeding in a certain suit instituted upon a petition of the Board of Guardians of the parish of St. Leonard, Shoreditch, praying for a licence or faculty to desecrate and erect certain buildings, being part of a new workhouse, upon a burial ground set apart and duly consecrated for the use of the parishioners of the said parish. It appeared from the affidavits and petition and counter statements filed therein, that on the 15th of February, 1865, the VOL. IV. 2 N 1 May 3. 1869 v. TWISS. guardians of the poor of the parish of St. Leonard, Shoreditch, filed THE QUEEN a petition in the Consistory Court by which they prayed a faculty for the erection of certain buildings for parochial purposes on the burial ground of the parish, alleging, as was the fact, that by certain local statutes certain trustees for the relief of the poor of the parish were empowered to purchase land for the purpose of a burial ground for the parish, and also for erecting a workhouse. The trustees possessed themselves of certain land and erected a workhouse on part of it. In 1778, a certain piece of the above land adjoining the workhouse was consecrated by the then Bishop of London, as a burying place for the use of the parishioners, and it was enclosed accordingly. By the sentence of consecration, the bishop “dedicated the ground for the burial place of the inhabitants of St. Leonard, Shoreditch, and declared the same to be so separated, assigned, dedicated, and consecrated for ever, and that it ought so to remain by this our definitive sentence or final decree." By 21 & 22 Vict. c. cxxxii. all the parish property was transferred to the board of guardians, and by virtue of the statute the workhouse and burial ground became vested in the guardians, and they had power to enlarge the buildings, &c. An order of the Poor Law Board was made in 1863 to enlarge the workhouse and build a chapel. For the purpose of carrying out this order, it was proposed to pull down some cottages inadvertently built upon a part of the burial ground, and to build upon other portions a part of the new workhouse, including a chapel for the use of the inmates, which would enable the guardians to erect an infirmary in connection with the workhouse on other ground. A part of the burial ground had been used for burying paupers, but none had been buried for the then last forty years, and no corpses had been buried in the part proposed to be built on. On the 7th of January, 1865, by order in council under 15 & 16 Vict. c. 85, it was ordered that burials should cease in this burial ground. The suit was pending, but no judgment had been given at the time the rule was obtained (21st of April, 1865) (1); but the buildings for which the faculty was asked had been built either before or pending the suit. (1) The rule has been enlarged from time to time. 1869 Bedford, at whose instance the rule was obtained, was an entire stranger to the parish, and there was no allegation on his part that THE QUEEN he was in any way personally interested in the matter. Barnard, G. Tayler, and R. A. Pritchard, shewed cause. There is no case in which this Court has granted a prohibition under such circumstances as the present, simply because it is sought to apply consecrated ground to secular purposes. Rector of St. George's, Hanover Square, v. Steuart (1), will be cited contrà; but the prohibition was granted in that case because the rector and the parishioners refused their consent, which of course was necessary, to the building of a school in the churchyard. Here there is no opposition whatever. Many instances have been found in the records of the Diocesan Court of London of faculties granted to apply consecrated ground to secular purposes. (2) In Pew v. Cresswell (3), a prohibition was granted because title came in question; but it is expressly stated that, as to the interrupting of the use of a churchyard, the matter is of ecclesiastical cognizance. In Walter v. Mountague (4), the rector of a parish proceeded in the ecclesiastical court against the churchwardens, for opening a footpath across the churchyard, and Dr. Lushington decreed against the defendants; saying:-" With regard to the jurisdiction, the (1) 2 Str. 1126. (2) It appeared from affidavits that search had been made in the Records of the Registry of the Diocesan Court of London, and the following licences or faculties had been issued :-On the 27th of May, 1851, a faculty by the bishop of London in confirmation of a decree by his then vicar general, Dr. Lushington, for the erection of a vestry room for vestry and other meetings of the parishioners on the churchyard of St. Mary Abbott's, Kensington, Middlesex, and for confirming the removal of some and authorizing removal of other gravestones, for the purpose of the said erection. On the 14th of March, 1859, a faculty by the bishop in confirmation of a decree of the vicar general Dr. Travers Twiss for erecting on part of the churchyard of St. Botolph, Bishops gate, London, an infant school for the (3) 2 Str. 1013. (4) 1 Curt. 253, 261. V. Twiss. 1869 v. Twiss. churchyard being consecrated ground, this Court has cognizance of THE QUEEN the matter, and it is my duty to protect it against any unauthorized or illegal conversion whatever; and supposing the alterations were most convenient, still the Court would not sanction them unless the consent of the rector had been previously given, or at least asked;" which shews that that learned judge considered that, with the consent of the rector, a faculty might be granted notwithstanding the consecration. In Butterworth v. Walker (1), a rule for a prohibition was discharged as not material, on the ground that the object for which the faculty was asked, viz., to erect an organ, was apparently innocent. So in Bulwer v. Hase (2), a prohibition was refused on the ground that the granting or refusing of a faculty was of ecclesiastical cognizance; and no common law right was infringed. Here the guardians are the owners in fee. Again, assuming that the granting a faculty to desecrate consecrated ground by the erection of secular buildings would be an excess of jurisdiction, one of the buildings in the present case is a chapel ; and a distinction has been made between secular and ecclesiastical purposes: see Campbell v. Paddington. (3) And the Court will not assume that the inferior tribunal will exceed its jurisdiction: Hallack v. Cambridge. (4) Another reason for refusing the prohibition is, that the applicant Bedford is an entire stranger to the parish, and in no way interested or aggrieved. Sir J. D. Coleridge, S. G., in support of the rule. No ecclesiastical authority can alter a definitive sentence of the ecclesiastical courts, and such is the sentence of consecration. And this is good ground of prohibition. Rector of St. George's, Hanover Square, v. Steuart (5) is a very distinct authority in favour of granting the prohibition. In Rector of St. John, Walbrook, v. The Parishioners (6), an application was made for a faculty to convert part of a churchyard into a highway which required to be widened, all parties interested concurring; and the case of Steeven v. St. Martin Orgars (7) was cited as an authority; but Dr. Lushington refused the faculty, saying: "I think, if my memory rightly serves me, the faculty in (1) 3 Burr. 1689. (2) 3 East, 217. (3) 2 Robert. 558, 560. (5) 2 Str. 1126. (6) 2 Robert. 515, 517 1869 บ. TWISS. the case referred to was granted to take down a church in a dilapidated state, without in any way perverting the consecrated THE QUEEN ground on which the building stood; the ground was to remain, if I may use the expression, in its state of consecration. A similar faculty was, I remember, granted by Sir Christopher Robinson, when sitting in this chair, in regard to a church in Colchester. ... I well remember that an application was made to Sir William Wynne, when judge of the Arches Court, to grant a faculty for converting a part of a churchyard at Ewell, in Surrey, into the public road requiring to be widened; and that learned judge refused the motion, stating that nothing short of an Act of Parliament could enable him to accede to the prayer. That dictum has been, to my knowledge, since acted upon, and I consider rightly, in several instances in the dioceses of London and Rochester. I must therefore refuse the present motion." The reporter adds, in a note: "It is presumed that the reason why such an application cannot be granted is, that a sentence of consecration is definitive." In 2 Inst. 489, Lord Coke says: "Coemeterium is derived of the Greek verb koμáw, that is, dormio, and therefore cœmeterium est quasi dormitorium, quia mortui dormiri dicuntur usque ad resurrectionem." The sentence of consecration by the bishop in the present instance, and the various forms given in 2 Gibson's Codex, appendix, p. 1470 (2nd ed.), Nos. 6, 7, and 8, shew that the ground is consecrated and set apart for ever. The case cited by the other side of Campbell v. Paddington (1) is very strong against the granting of any faculty in such a case. That was an application for a faculty to build a vestry-room on part of the burial ground of a parish; and Dr. Lushington said: "The Court is at all times reluctant to refuse an application which has received the assent of the parishioners and the patron of the living, who in this instance is the bishop of the diocese; but the Court is nevertheless bound to recollect the limits of its own power and authority. When ground is once consecrated, no judge has power to grant a faculty to sanction the use of such ground for secular purposes. The case of St. George, Hanover Square (2), illustrates this position. In that case the parish was cited to appear and shew cause why a faculty should not be granted to erect a (1) 2 Robert. 558, 558. (2) 2 Str. 1126. |