Gilbert v Buzzard: Funerals and Fees
by Philip Jones
(1820) 161 English Reports 1342
This is probably the leading case on the common law right of burial in the churchyard. Mr Gilbert wished to bury his deceased wife in an iron coffin, as a protection against graverobbers. The churchwardens, including Mr Buzzard, refused to allow the interment of the coffin, following a resolution of the parish vestry disapproving iron coffins.
The secular courts refused to intervene in the dispute. Lord Chief Justice Abbott held that
‘the right of sepulture is a common law right alone: but … the mode of burial is of ecclesiastical cognizance alone’ (p.1343).
Mr Gilbert then complained to the local consistory court (diocese of London).
The Chancellor, Sir William Scott (the future Lord Stowell), noted that
‘the law … certainly says that a parishioner has a right to be buried in his own parish churchyard: but it is not quite so easy to find the rule … that gives him the right of burying a large chest or trunk along with himself’ (p.1348).
Most people were originally buried only in shrouds, not coffins, but burial in coffins was evidently more widespread by the early 19th century.
Thus the Lord Chief Justice and the Chancellor both declined to extend the right of burial to burial in a coffin, although the Chancellor acknowledged that coffin burial was prompted by ‘very natural and laudable feelings’.
The practical difficulty with coffin burial was the burden that it imposed on the parish. Coffins took up more space in the churchyard. They also retarded the ‘dissolution’ of the human remains in the soil, preventing the use of the ground for future burials. The parish was therefore obliged to purchase and maintain additional burial grounds.
The Chancellor resolved the dispute pastorally. He ordered the parish to fix a scale of burial fees, imposing charges for digging the grave and interment in coffins of wood or iron. A table of fees was duly prepared, and the Chancellor confirmed it. Thus Mr Gilbert was able to bury his wife as he wished, and the parish was compensated for the increased financial burden that this caused.
The scale of fees that was eventually approved included separate payments to the incumbent and churchwardens. The Chancellor held that this was unobjectionable. The relative of a deceased person ‘has no right … to quarrel with the public uses to which [the fee] has been applied by the parish’ (p.1351).
It seems reasonable to suppose that the right of burial should extend to the burial of cremated remains, since these are no less human remains than an uncremated dead body. Cremation also avoids the practical difficulties that Sir William Scott identified with coffin burial.
Yet in the case of Dixon (1892) Probate Division 386, Dr Tristram (one of Scott’s successors as Chancellor of London), doubted that the common law right of burial extended to cremated remains. (He probably did not approve of cremation.)
However, the Miscellaneous Provisions Measure 1992, s.3(1) confirms that a person who has a right of burial in a churchyard has a right to the burial of his cremated remains.
Although Gilbert v Buzzard is usually cited in relation to the right of burial in the churchyard, it may also inform discussion about ecclesiastical fees.
The judgment suggests that the Chancellor viewed the burial fees as a species of local tax, a supplement or surcharge to the church rates, which was necessitated by the additional cost to the parish of coffin burial. Thus the scale of fees was fixed by the vestry and confirmed by the ordinary in the same manner as church rates then were.
Compulsory church rates were abolished in 1868. Compulsory church fees, however, remain very much in force.
Gilbert v Buzzard suggests that burial fees were introduced for three particular reasons:
(1) a new mode of burial, in a coffin rather than merely in a shroud, that became popular in the late modern period
(2) coffin burial imposed an additional burden on the parish
(3) there was no legal right to burial in a coffin, only to burial of the remains.
Seen in this context, modern marriage fees may be rather hard to justify:
(1) the mode of church-marriage, unlike the mode of church-burial, has hardly changed since the middle ages
(2) modern church-marriage, therefore, does not impose any additional burden on the parish
(3) there is a legal right to church-marriage, as there is not to coffin burial.
In short, nothing has changed concerning the solemnisation of marriage so as to justify the introduction of a fee. A marriage fee imposes a charge on a pre-existing legal right.
At common law, an incumbent was permitted to charge marriage fees only if they were payable by immemorial local custom and were not unreasonable. The rubric in the Prayer Book marriage service provides, somewhat unromantically, that any customary marriage fee should be deposited on the officiating minister’s book during the ceremony, along with the ring. But the incumbent still had to prove that a custom existed.
The case of Haigh v Aspull (1919) Probate 143 suggests that statutory marriage fees were first imposed in newly created parishes under the New Parishes Acts 1843 and 1856 (p.144).