350

THE GREEN BAG

the ecclesiastical court to be, that crema tion was improper, except by expressed wish of the deceased, because it deprived the deceased of his right "to Christian burial in the accustomed form in a conse crated burial ground." He cited the opin ion of Lord Stowell in Gilbert 'v. Buzzard,1 and of Lord Denman in the commorf law case of Reg. v. Stewart,1 to show that this right existed "by ecclesiastical as well as by common law" for every person dying in England (with certain exceptions), and then says that a person should not be deprived of this right "unless he has left written directions or expressed in his life a wish, to be cremated." In England, therefore, up to 1902, when the " Cremation Act " hereinafter mentioned was passed, it was not a criminal offense by cremation to deprive a child of its so-called right to "Christian burial in the accustomed form," if a person having the rightful cus tody of the body did it without the assis tance of the ecclesiastical court; but that court would not assist in the operation if such assistance was needed. It is submitted that Dr. Tristram's rule is sound to the extent that the court will not assist executors or others to cremate a body, in opposition to the wishes of the surviving husband or wife or next of kin, unless the de ceased has expressly requested cremation; but, that the court should refuse to allow cremation when those nearest the deceased desire it, seems to be a rule not warranted by authority, even in English law. In the opinions, in which he lays down his rule, Dr. Tristram admits that cremation "though not contemplated, 'is not prohibited either by ecclesiastical or by statute law nor yet by common law."3 He further shows that cremation does not prevent subsequent "Christian burial" of the ashes, and, if the remains have been cremated by the testa tor's directions, he sees no objection to the 1 i Hagg. Consist. 333, S. C. 3 Phill. 335. a 12 Ad. and E. 773. ' 1894 P. at p. 287.

use of the " Burial Service, " just as it is customary to use it in the burial of the ashes of a person who has been burnt to death.1 Having gone thus far, Dr. Tris tram stops short and requires "the direc tions of the deceased." He therefore in terprets the right of "burial" as a right to decay "in the accustomed form" for the customary length of time and no longer and no less. This is illustrated in a most strik ing way by the passages from Lord Stowell's opinion in Gilbert v. Buzzard, which are given in a foot-note and which Dr. Tris tram professes to follow.2 The authorities 11892 P. at p. 394. 3 In Gilbert v. Buzzard, 2 Hagg Consist 333, Gilbert claimed the right to bury his wife in the parish churchyard in an iron chest at the ordinary charge for a wooden coffin. The parish objected and the court ruled that Gilbert must pay extra. Lord Stowell said, at p. 348, as to the right to burial: "That right strictly taken is to be returned to his parent earth for dissolution and to be car ried thither in a decent and inoffensive manner; when these purposes are answered, his rights are, perhaps, fully satisfied in the strict sense in which any claim in the nature of an absolute right can be deemed to extend," and, on pp. 353-354, he limited the right as follows: "The legal doctrine certainly is and has re mained unaffected — that the common cemetery is not res unius cetatis the property of one genera tion, now departed, but is likewise the common property of the living and of generations yet un born, and is subject only to temporary appropria tions. "If this view of the matter be just, all contriv ances that, whether intentionally or not, prolong the time of dissolution beyond the period at which the common local understanding and usage have fixed it, is an act of injustice unless com pensated in some way or other." . . . "In country parishes . . . more ground can be spared . . . but in populous parishes, in ... cities, the indulgence of an exclusive possession is unavoidably limited; . . . the period of decay and dissolution does not arrive fast enough, in the accustomed method of depositing bodies in the earth, to evacuate the ground for the use of suc ceeding claimants." So Gilbert had to pay extra. In The King v. Coleridge, 2 B. & A. 806 S. C. i Chitty 588, the Court of Kings Bench had re fused a mandamus to compel burial in an iron