was considered that this was so clearly an indictable offence, that no case was reserved. (cc)

It is a misdemeanor at common law to remove without lawful authority a corpse from a grave in a burying-ground of a congregation of Protestant dissenters; and it is no defence to such a charge that the motive for removing the corpse was pious and laudable. The indictment charged the defendant with unlawfully entering a burial-ground belonging to a congregation of Protestants dissenting from the Church of England, and unlawfully and indecently opening the grave of Louisa Sharpe, and unlawfully and indecently carrying away her body. The defendant's mother and some other relations had been buried in one grave in the burying-ground of a congregation of dissenters at Hitchin, with the consent of those that were interested. The defendant's father had recently died, and the defendant prevailed on the wife of the person who had the key of the buryingground to allow him to cause the said grave to be opened, upon the pretext that he wished to bury his father in that grave, and in order to examine whether the size of the grave would admit his father's coffin. He caused the coffins of his stepmother and two children to be taken out, and so came to the coffin of his mother, which was under theirs, and was much decomposed, and caused the remains of this coffin, with the corpse therein to be placed in a shell and carried to a cart and driven some miles away towards a churchyard where he intended to bury his father's corpse with the remains of his mother. These acts were done without the consent of the congregation or the trustees having the legal estate in the ground; and the jury found that the statement of the defendant that he intended to bury his father there was only a pretext, and that his real intention from the beginning was to remove his mother's corpse; but that he acted throughout without intentional disrespect to any one, being actuated by motives of affection to his mother and of religious duty; and, upon a case reserved, Erle, J., delivered judgment: We are of opinion that the conviction ought to be affirmed. The defendant was wrongfully in the burial-ground, and wrongfully opened the grave, and took out several corpses, and carried away one. We say he did this wrongfully, that is to say, by trespass; for the licence which he obtained to enter and open from the person who had the care of the place, was not given or intended for the purpose to which he applied it, and was, as to that purpose, no licence at all. The evidence for the prosecution proved the misdemeanor, unless there was a defence. We have considered the grounds relied on in that behalf, and, although we are fully sensible of the estimable motives on which the defendant acted, namely, filial affection and religious duty, still neither authority nor principle would justify the position that the wrongful removal of a corpse was no misdemeanor if the motive for the act deserved approbation. A purpose of anatomical science would fall within that category. Neither does our law recognize the right of any one child to the corpse of its parent as claimed by the defendant. Our law recognizes no property in a corpse, and the

(cc) R. v. Gilles, Bayley, J. MS. Bayley, J., R. & R. 366, note (b). And see R. v. Duffin, R. & R. 365.

protection of the grave at common law, as contradistinguished from ecclesiastical protection to consecrated ground, depends upon this form of indictment, and there is no authority for saying that relationship will justify the taking a corpse away from the grave where it has been buried.' (d)

Neglect or refusal to bury dead body. 'A man is bound to give Christian burial to his deceased child, if he has the means of doing so; but he is not liable to be indicted for a nuisance for not burying his child, if he has not the means of providing burial for it. He cannot sell the body, put it into a hole, or throw it into a river; but unless he has the means of giving the body Christian burial, he is not liable to be indicted, even though a nuisance may be occasioned by leaving the body unburied, for which the parish officer would probably be liable.' (e) The prisoner was indicted for having neglected and refused to bury the body of his deceased child, whereby a nuisance was created. The prisoner, at the time of the death of his child, was a pauper receiving parochial relief from a parish in the Leicester union, and soon after the 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 by way of loan for the purpose of burial, 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)

But to burn a dead body instead of burying it is not indictable unless it is so done as to amount to a public nuisance. (h) To burn a body in order to prevent an inquest being held upon it where such an inquest ought to be held would be a misdemeanor. (i)

The refusal or neglect to bury dead bodies by those whose duty it is

(d) R. v. Sharpe, D. & B. C. C. 160. See also R. v. Jacobson, 14 Cox, C. C. 522, where the removal of bodies from a disused burial ground was held indictable.

(e) Lord Campbell, C. J., in R. v. Vann, 2 Den. C. C. 325. The 7 & 8 Vict. c. 101, s. 31, enacts that it shall be lawful for guardians, or where there are no guardians for the overseers, to bury the body of any poor person which may be within their parish or union respectively, and to charge the expense thereof to any parish under

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.

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

(g) R. v. Vann, supra.

(h) See a very learned charge to a jury by Stephen, J., reported as R. v. Price, 12 Q. B. D. 247. The prisoner was acquitted. (i) See post, p. 943.

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.' (j)

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. (k) The right of sepulture in the parish churchyard is a common-law right; but the mode of burial a subject of ecclesiastical cognizance alone. (1) 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. (m)

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. (n) 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 for that purpose. (0) 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

(j) Andrews v. Cawthorne, Willes, 537 note (a). Abney, J., cited a case, H. 7 G. 1, B. R. where that 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.

(k) Mastin v. Escott, decided in the Arches Court of Canterbury, May 8, 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 v. Wickes, 3 Phill. Rep. 264, a similar decision had been made with reference to a person baptized by a minister of the Calvinistic Independents.

(1) The 43 & 44 Vic. c. 41, makes provision for the burial of persons in churchyards and graveyards without the rites of the Church of England, on notice being given to the clergyman.

(m) R. v. Coleridge, 2 B. & Ald. 806: (n) Per Lord Denman, C. J. R. v. Stewart, 12 A. & E. 773.

(0) Per Lord Denman, C. J., ibid.

found, therefore, that where a pauper dies in any parish house, poorhouse, 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. (p) 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 inpatient 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 parish house, was not within the objects of the 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. (q)

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 their 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 authorised to do), every dead body which the guardians or any of their officers duly authorised shall direct to be buried at the expense of the poor-rates 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; (r) 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. (s)

Licence for anatomical examination of dead bodies. The 2 & 3 Will. 4, c. 75, 'An Act for regulating Schools of Anatomy,' author

(p) Ibid.

(q) R. v. Stewart, supra.

(r) It may, if wished, be buried without the rites of the Church of England. See 43 & 44 Vict. c. 41, s. 2.

(s) 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 neighbouring parish; and sec. 2 empowers them to enter into agreement with cemetery compa nies and burial boards for the burial of the poor. See 12 & 13 Vict. c. 103, s. 16.

ises the Secretary of State for the Home Department to grant 'a licence to practise 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 practise 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.'

By 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 superintend. By 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.

By 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 practise 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.'

By 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 per