Until the mid-19th century the only public jurisdiction to which churches and churchyards were subject was that of the Church courts. The 19th century saw the introduction of laws regulating the environment and public health, which were enforceable by secular authorities. Thus for the first time the Church courts had to share their jurisdiction with the secular authorities.
This division of jurisdiction between Church and state over the same property caused confusion which has still not been fully resolved.
The confusion first becomes apparent in the case of Lee v Hawtrey (1898) Probate 63. The case was decided by Dr. Tristram, the last surviving ‘Doctor’ of Doctors’ Commons (and so perhaps reluctant to accept any loss of ecclesiastical jurisdiction), sitting as Chancellor of London.
Two churchwardens were served with a government order requiring them, on sanitary grounds, to remove all human remains buried under the floor of their church, and to rebury them in a cemetery. The work was to be executed by the churchwardens to the satisfaction of a local sanitary officer.
The churchwardens complied with the order. They declined to request a faculty from the Church court. They thought a faculty was unnecessary, as they were acting under the order of the secular authority. However, Chancellor Tristram disagreed. He pronounced the churchwardens guilty of an ecclesiastical offence.
This was harsh to the churchwardens. They had not acted on some private whim, but on receipt of an order-in-council (which, as such, would have been approved by Queen Victoria herself, the Supreme Governor of the Church). The order was addressed to them, not to the Church court. Had they declined to obey it they might have been subject to proceedings in the secular court.
The order had been made under s.23 of the Burial Act 1857, an Act passed 40 years earlier. S.23 conferred power on the Home Secretary to order
‘churchwardens or [others] … hav[ing] the care of any vaults or places of burial [to] prevent … them from becoming or continuing dangerous or injurious to the public health’.
However, the Chancellor maintained that ‘the ultimate care of and control over the … remains buried in the church … is by ecclesiastical law vested, not in the churchwardens, but in this [Church] court’ (p.71).: and (p.71).
This is an accurate statement of the ecclesiastical common law. But what about s.23 of the 1857 Act? The Chancellor’s view was that s.23 was not worded with sufficient clarity to ‘transfer … the exclusive jurisdiction which has been vested [by common law] in the ecclesiastical courts for centuries over … churchyards and the bodies buried therein’. Thus any order under s.23 remained subject to the overriding ecclesiastical jurisdiction.
On this basis, the Chancellor concluded that ‘it was the duty of the churchwardens, on receiving the order … assuming it to be … valid, to bring it to the notice of the Court for its direction by faculty as to the mode in which effect should be given to it’
This interpretation of s.23 is questionable. If Parliament had intended that an order under s.23 was to be made subject to the faculty jurisdiction it would have made sense to provide that the order be sent to the ecclesiastical court directly, rather than to the churchwardens.
The Chancellor’s implied suggestion that clear words excluding the ecclesiastical jurisdiction were required in the 1857 Act is hard to reconcile with the Court of the Arches’ decision in Phillimore v Machon (1876) 1 Probate Division 481. That case concerned the prosecution of a layman (Mr Machon) in the ecclesiastical court for a particular offence.
It was admitted in Phillimore v Machon that the ecclesiastical jurisdiction to try the offence had never been expressly abolished by Act of Parliament. However, the Court of the Arches held that the jurisdiction had been inferentially abolished by a particular Act of Parliament. This Act had conferred criminal jurisdiction on the secular court. By conferring jurisdiction to try the offence on the secular court, Parliament had implicitly withdrawn or abolished the jurisdiction of the ecclesiastical court to try the offence.
The decision in Phillimore v Machon supports the conclusion that the 1857 Act, though it did not expressly limit or abolish the ecclesiastical jurisdiction, did so implicitly, by creating the secular jurisdiction over matters of public health.
The Ecclesiastical Courts Jurisdiction Act 1860, which abolished ecclesiastical jurisdiction to punish brawling in church and churchyard, contains an express saving of the ecclesiastical faculty jurisdiction: ‘nothing herein contained shall limit, restrain or abolish the power possessed by the ordinary over the fabric of any church or … churchyard’ (s.7).
The 1860 Act was passed just three years after the Burial Act. It is arguable that, if Parliament had intended that the Home Secretary’s powers under that Act should be subject to ecclesiastical jurisdiction, it would have included a provision similar to that in the 1860 Act.
For these reasons it is argued that s.23 plainly does empower the Home Secretary to order the removal of human remains from churches and churchyards without a faculty. It refers to churchwardens in their capacity as officers of the parish and as occupiers at common law of church property in the parish.
Of course, s.23 by no means abolishes all ecclesiastical jurisdiction over churches and churchyards. It merely asserts a secular responsibility for public health. The Chancellor complained that the order in this case denied the ecclesiastical court the opportunity to decide ‘whether such wholesale removal is necessary, or whether sanitation might not be effected at much less cost to the parish by concreting the floor of the church, or by a partial removal’ (p.71).
However, it is a strange suggestion that public health is a proper subject of ecclesiastical jurisdiction, or that the ecclesiastical court is better qualified to decide matters of public health than the secular government.
Having asserted his jurisdiction, the Chancellor rather lamely agreed with the Home Secretary that all the remains should be removed. The proceedings against the churchwardens were therefore dismissed, but they still had to pay costs.
As well as asserting his common law jurisdiction, the Chancellor made dubious use of an earlier case on s.23 of the 1857 Act, Foster v Dodd (1866) Law Reports 1 Queen’s Bench 475, to support his conclusion that the churchwardens’ action was unlawful.
Mr Foster owned land which contained human remains. The land had been closed for burials some years before. Mr Foster put timber, bricks and rubbish on his land. The Home Secretary then obtained an order under s.23 requiring Mr Foster to remove the rubbish etc. The order did not require the removal of any human remains.
Mr Foster failed to comply with the order. The Home Secretary then ordered the churchwardens, including Mr Dodd, to carry out the order. They entered Mr Foster’s land and did so. Mr Foster sued them for trespass.
The court (which was, of course, a secular court, not an ecclesiastical court) held that the churchwardens had trespassed because the order was ultra vires the 1857 Act. The Act applied to ‘places of burial’. The court decided that Mr Foster’s land was not a place of burial, even though it contained human remains. It was true that it had once been a place of burial, but it had ceased to be so.
The land had previously been leased to Bridewell Hospital, which used it for the burial of former inmates. The Bridewell surrendered its lease to the freeholder, who subsequently granted a new lease to Mr Foster. The court decided that the land had ceased to be a place of burial when the Bridewell surrendered its lease. By the time of the Home Secretary’s order the land was mere private property.
By thus limiting the meaning of the term ‘place of burial’ in the 1857 Act, the court in Foster was seeking to protect private property from arbitrary state interference. There are vast areas of land in private ownership which contain human remains. If private property were brought within the definition of a place of burial the Home Secretary would enjoy considerable power over the owners. Rights of property were more highly esteemed in the 19th century than they are today. (As the court noted, private land containing human remains would still be subject to the common law prohibiting nuisance and indecent inteference with the dead).
The court held that s.23
‘appl[ies] only to vaults and places in the care of persons for the purpose of burial, that is, in the care of persons appropriating them, at the time the Act was passed, to the purpose of burial’ (p.486).
Thus a distinction was drawn between
(1) dedicated places of burial, which were subject to s.23, and
(2) mere private property which happened to contain human remains , which was subject only to common law liability (nuisance etc).
The distinctions between Foster v Dodd and Lee v Hawtrey are clear:
(1) Foster concerned private property, whereas Lee concerned a church, a public place.
(2) The churchwardens in Foster had entered on private property which did not belong to them, those in Lee were the lawful occupiers of their church.
(3) Foster was an action for common law trespass, Lee concerned an alleged ecclesiastical offence.
(4) The position of the ecclesiastical court in Lee was obviously not comparable to that of Mr Foster.