Cemeteries in Law

Cemeteries in Law

Cemeteries in Civil Law

It would be impossible here to deal in detail with the various legislative enactments which now almost everywhere prevent the Church's burial requirements from being carried into effect. (See BURIAL.) "From the principles which now obtain in German law", writes Dr. Peter Lex in his recent work, "Das kirchliche Begrabnissrecht", "the idea of a Catholic churchyard from the point of view of Catholic teaching and practice, has been completely suppressed and the cemetery has been degraded into a mere burial-ground belonging to the civil corporation." In such matters as the burial of Protestants or non-Christians in ground formerly blessed for the faithful only, the Church when opposed by the civil power allows her ministers to give way rather than provoke a conflict. In England, according to the Burials Act of 1852, the "Burial Boards" in different parts of the country are empowered to provide adequate graveyards out of the rates. In these a certain portion is consecrated according to the rites of the Church of England and the remainder is left unconsecrated. Of this last such a proportion as may be necessary is assigned for the use of Catholics, who are free to consecrate it for themselves. Moreover, when a chapel is erected upon the Church of England portion of the cemetery, a similar building must as a rule be provided in the other sections. The act assigns to the "Burial Board", at least indirectly, the control of the inscriptions to be set up upon the tombstones in the cemetery, but these powers are generally administered without hardship to Catholics. When Catholics are buried in ground which is not specially consecrated for their use the priest conducting the funeral is directed by the "Rituale Romanum" to bless the grave, and if the priest himself cannot conduct the funeral further, to put blessed earth into the coffin. Children who have died before baptism, we may notice, should be interred apart in ground which has not been consecrated; and it is usual even in the consecrated portion to assign a separate place for infants that have been baptized.

Cemetery Laws in the United States

The several States of the Union have upon their statute books legislation, in its broader outlines identical, providing for the incorporation of cemetery associations, the safe and sanitary location and regulation thereof, and the protection of sepulture therein. In some States this statutory protection is more or less restricted to incorporated cemetery associations and is not directly applicable to church cemeteries. As a rule cemeteries throughout the United States are exempt from taxation and monuments therein from execution. The law is adverse to the disturbance of the dead in their last resting-place. In Alabama cemetery authorities removed the body of a child from a cemetery, which had been discontinued, to another cemetery that had been founded in place thereof, without giving the child's parents notice. The parents recovered damages to the amount of $1700 from the cemetery authorities. (18 So. R., 565) In many of the States there are statutes making it a criminal offence to remove or deface tombstones, fences, or trees in a cemetery.

The bodies of the dead belong to their surviving relatives to be disposed of as they see fit, subject, of course, to public sanitary regulations. (Bogert vs. Indianapolis, 13 Ind. R., 434.) The title of the lot-holder in a cemetery is rarely a title in fee simple. The right of burial conveyed by written instrument in a churchyard cemetery is either an easement or a licence, and never a title to the fee-holder. (McGuire vs. St. Patrick's Cathedral, 54 Hun. N.Y., 207.) Where, for instance, the certificate of purchase reads, "to have and to hold the lots for the use and purpose and subject to the conditions and regulations mentioned in the deed of trust to the trustees of the church", this was construed as a mere licence; and, as such, revocable. The regulations of the Church may, and usually do, limit the right of interment in the cemetery to those who die in communion with the Church; and the courts have held that the Church is the judge in this matter. (Dwenger vs. Geary, 113 Ind. 114, 54 Hun. N. Y., 210.) One C___, a Catholic, received from the proper officer of a Catholic cemetery a receipt for seventy-five dollars, being the purchase money for a plot of ground in the cemetery. C___ died a Freemason, and the cemetery authorities would not allow his body to be buried in the lot which he had bought. The case went to the highest courts in New York, and the cemetery authorities were upheld, it satisfactorily appearing that the rules of the Catholic Church forbid the burial, in consecrated ground, of one who is not a Catholic or who is a member of the Masonic fraternity. (People vs. St. Patrick's Cathedral, 21 Hun. N. Y., 184.) The Guibord Case at Montreal (1875) may be recalled in this connection. Guibord, an excommunicated man, was interred in the Catholic cemetery by a decree of a civil court. Bishop Bourget laid the portion of the cemetery thus desecrated under interdict. Bishop Dwenger, of the Fort Wayne Diocese, secured an injunction against one Geary, who desired to bury the body of his suicide son in a lot owned by him (Geary) in the Catholic cemetery. The Supreme Court of Indiana upheld the bishop. (113 Ind., 106.)

While the right of eminent domain may be invoked to condemn lands for cemetery purposes, the same right may be employed to take the cemetery lands for such public purposes as extending a highway. However, in some States there are statues prohibiting the opening of streets through cemeteries. The State exercising its police power, or a municipality, when authority is delegated to it by the legislature, may forbid the further use of a cemetery for interments, or declare it a nuisance and a danger to public health, and authorize the removal of the dead therefrom; and this may be done by such authorities without recourse to eminent domain proceedings. Various questions have arisen as to the right of a cemetery lot-owner to erect a monument thereon and as to his right to compel the cemetery authorities to keep the cemetery walks and grounds in good order and repair. In the absence of special regulations reserving such matters to the discretion of the cemetery authorities, the right of the lot-owner has been affirmed in these particulars. (61 N.W. Rep., 842; 36 S.W. R., 802.) Trusts for the purpose of keeping the graves in repair are held to be charitable to the extent of excepting them from the statue against perpetuities. (Am. and English Encycl. of Law, V, 790.) The heir-at-law has a right of property to the monuments of his ancestors in the graveyard, and may sue any person defacing them. (3 Edw. Ch., Rh., 155.)

Canadian Legislation Concerning Cemeteries

In the Dominion of Canada, cemeteries are under the authority of the legislatures of the different provinces. Outside of the Province of Quebec, in the English-speaking provinces, the laws regarding them are, with slight variations, the same. In all the provinces, cemeteries are exempt from taxation. Cemetery companies are authorized by general statutes. In the Province of Ontario provision is made for the amount of capital to be subscribed, and a certain percentage to be paid thereon, before an act of incorporation shall be granted, and "no such cemeteries shall be established within the limits of any city". In the case of incorporated villages or towns, a cemetery may be established when the lieutenant-governor, in council, considers that there is no danger for the public safety, and that in the opinion of the Provincial Board of Health the proposed cemetery may, under all the circumstances, be safely permitted. It is enjoined that "no body shall be buried in a vault or otherwise, in any chapel or other building in the cemetery, nor within fifteen feet of the outer wall of such chapel or building. No grave may be re-opened for the removal of a body, without permission of the corporation authorities, or the order of a judge of the County Court, excepting cases where the Crown may order the removal of a body for the purpose of legal inquiry". The company must furnish a grave for strangers and for the poor of all denominations free of charge, on a certificate, in the latter case, of a minister or a clergyman of the denomination to which the deceased belonged, that the representatives of the deceased are poor and cannot afford to buy a lot in the cemetery. The shareholders in such cemetery, cannot receive more that eight per cent on their investments. All excess must be applied to the preservation, improvement, and embellishment of the land of burial-grounds, and to no other purpose. Penalties are imposed upon any one destroying or defacing any tomb, injuring trees or plants, or committing any nuisance in the cemetery (see ch. cccvii, of the Revised Statutes of Ontario, 1897, an "Act respecting the Property of Religious Institutions").

The Criminal Code of Canada enacts penalties for not burying the dead, for indignity to dead bodies, for forging, mutilating, destroying, or concealing registers of burials. The body of every offender executed, shall be buried within the walls of the prison, within which judgment of death is executed on him, unless the lieutenant-governor in council orders otherwise.

Any religious society or congregation of Christians may, among other things, acquire land for a cemetery. These are subject to the general rules, as the precautions for health, etc. The provisions of this law have been extended to the Church of England, and "all rights and privileges conferred upon any society or congregation of Christians, in virtue of this statute, shall extend in every respect to the Roman Catholic Church, to be exercised according to the government of said Church". Since 7 April, 1891, the same privileges have been extended to those professing the Jewish religion. In the Province of Quebec, provisions are also made for the incorporation of cemetery companies. The lieutenant-governor may at any time, by order in council, confirm any deed of sale or grant, executed with prescribed formalities, of any one piece of land not exceeding twenty-five arpents in extent, to any persons not less than five in number named in such deed, such persons not being trustees for a religious congregation or society, or Roman Catholics. These associations are subject to the general laws as regards health regulations, and are further obliged to keep registers of all interments or disinterments, as well as a record of all proceedings and transactions of the corporations. Any parish mission, congregation or society of Christians not being a parish recognized by law, may, in the mode indicated by the statute, acquire lands for cemeteries, and, subject to the approval of the lieutenant-governor, may exchange such lands for others for a like purpose. Each parish must have its cemetery, the exception being in favour of large cities, where many parishes use the same place for interments. This cemetery belongs to the parish represented by the parish priest, or Protestant rector or pastor, and churchwardens. No cemetery can be acquired, exchanged, or enlarged without the authorization of the bishop. Lands may be expropriated for cemetery purposes. No body may be buried until at least twenty-four hours after death. Special laws exist in all the provinces with reference to burials in time of epidemic. In the Province of Quebec, interments in churches are permitted, but the coffin must be covered by at least four feet of earth, or encased in masonry, of at least eighteen inches in thickness if in stone, or of at least twenty inches if in brick, both brick and stone having been well covered with cement. The same regulations apply to burials in private vaults. Interments in churches or cemeteries may be prohibited in the interest of public health by the superior or diocesan ecclesiastical authority. In the Province of Quebec the civil and religious authorities are interwoven, thus the pastor of every parish is bound to keep in duplicate registers of births, marriages, and deaths. At the end of each year he deposits one of the copies at the court-house of the district, and the other is retained in the parish record.

As regards burials in consecrated ground, no question can now be raised affecting the powers of the Catholic Church authorities. By Art. 3460, Revised Statutes, P.Q., 1888, it is enacted: "it belongs to the Roman Catholic ecclesiastical authority to designate the place in the cemetery, in which each individual of such faith shall be buried, and if the deceased, according to the canon rules and laws, in the judgment of the ordinary, cannot be interred in ground consecrated by the liturgical prayers of such religion, he shall receive civil burial in ground reserved for that purpose and adjacent to the cemetery." Virtually the same law is in force in the Province of Ontario as that shown above. This legislation in the Province of Quebec arose from a celebrated action at law, commonly known as the "Guibord Case". Joseph Guibord was a member of the "Institut Canadien", an organization which had been condemned by the bishop, and whose members were excommunicated as a body. Guibord died, 18 November, 1869. His widow applied to the religious authorities for the burial of his body in the cemetery. The parish priest of the church of Notre-Dame, under instructions from diocesan authorities, refused to accede to this demand, offering however to bury the deceased in an adjoining lot, where children who die without having been baptized, public sinners, etc., are interred. This the widow refused, and she applied for a writ to force the church authorities to grant a Christian burial. This petition was granted by the Superior Court. The Court of Review, reversing the judgment, held that the civil courts had no jurisdiction to inquire into the reasons for the refusal of the parish priest to grant Christian burial, and that he and his wardens had the right to subdivide the burial grounds into such lots as they might think fit, and to regulate as to where and how the mode of burial should be carried out. Many other questions were raised, but these were the principal grounds. The Court of Appeal for the Province of Quebec unanimously confirmed the Court of Review. The case was carried before the Judicial Committee of the Privy Council in England, where the judgment of the Quebec Court of Appeal was reversed. It was held that a Catholic parishioner, who had not been excommunicated nominatim (i.e. by name), and who had not been proved to have been a public sinner, was not, according to the diocesan regulations, which had been invoked by both parties, under any valid ecclesiastical censure which would deprive his remains of Christian burial. The report of the case may be found in "Lower Canada Jurist", Vol. XX, and covers all the relations of Church and State since the cession of Canada by France to England.

Strict regulations exist as to the disinterment of bodies, which cannot be effected without authority from the Superior Court, as well as from the diocesan authorities. These apply equally to cemeteries, and to churches and chapels where burials have been made. Registers of all such disinterments have to be kept. In 1907 a petition was presented by the Franciscan Order to the Superior Court at Three Rivers, against the rector of the Anglican parish church. It set forth that, prior to the cession of Canada to England, the Franciscans were known as the "Recollets", and had established a missionary post at Three Rivers, in the earliest days of the colony, where they built a church, wherein they buried the members of their order, and some Catholic laymen as well. When the cession took place, their properties were confiscated. They urged that for many years they had no representatives in the country, and that their church had passed into, and then was in the possession of the minister of the Church of England. The latter body, they said, had never used their church for burial purposes, as was established by the register of burials. They further set forth that recently the Franciscan Order had built a new church, where they desired to have the remains of their brethren who had been buried during the French regime interred according to the discipline of the Catholic Church, and they prayed for an order from the court, to be permitted to make such disinterments, undertaking to pay all damages. On 3 December, 1907, a judgment was rendered dismissing the petition because, prior to making their application, the Franciscans had not obtained permission from the authorities of the Church of England, in whose possession and under whose control the church was when the order for the disinterment was sought to be obtained.

For other points not touched upon here, see the article BURIAL.
For the cemetery legislation of the Province of Quebec, see Mignault, Le Droit Paroissial, etc. (Montreal, 1893), in Index s.v. Cimetieres; Dorais, Code Civil de la Province de Quebec (2nd ed., Montreal, 1905), nos. 53 b. and 66 sqq.; Tyler, American Eccl. Law, Ch. 71-85; American and English Encycl. of Law, V, 781-98; Desmond, The Church and the Law (Chicago, 1898), c. xvi.
For Canadian law in general: Stewart, Index to Dominion and Provincial Statutes (Montreal, 1902); Mignault, Droit Paroissial (Montreal, 1893); Pagnuelo, Liberte religieuse en Canada (Montreal, 1872); Beauchamp, Privy Council Reports in Lower Canada Jurist, XX, 228; Municipal Code, Province of Quebec; Law Reports: Cases in Privy Council (English), ed. Robert Cowell; Brown, Les Cures et Marguilliers de l'Oeuvre et Fabrique de Notre-Dame de Montreal, VII, 157.

HERBERT THURSTON HUMPHREY J. DESMOND