1911 Encyclopædia Britannica/Churchyard
CHURCHYARD, a piece of consecrated ground attached to a parochial church, and used as a burial place. It is distinguished from a cemetery (q.v.), which is also a place of burial, but is separate and apart from any parochial church. A cemetery in England is either the property of a private company, incorporated by special act of parliament, or of a local authority, and is subject to the Cemeteries Clauses Act 1847, incorporated in the Public Health Acts. The practice of burying in churches or churchyards is said to have been connected with the custom of praying for the dead, and it would appear that the earlier practice was burying in the church itself. In England, about the year 750, spaces of ground adjoining the churches were enclosed and appropriated to the burial of those who had been entitled to attend divine service in those churches.
The right to burial in the parish churchyard is a common law right, controlled in many points by the provisions of the law ecclesiastical. This double character is sufficient to explain the controversy which has so long raged round the subject of burials in England. Every man, according to the common law, has a right to be buried in his own churchyard, or, as it is sometimes put, in the churchyard of the parish where he dies. But the churchyard, as well as the church itself, is the freehold of the parson, who can in many respects deal with it as if it were a private estate. A statute of Edward I. (35, st. 2) speaks of the churchyard as the soil of the church, and the trees growing in the churchyard “as amongst the goods of the church, the which laymen have no authority to dispose,” and prohibits “the parsons from cutting down such trees unless required for repairs.” Notwithstanding the consecration of the church and churchyard and the fact that they are the parson’s freehold, a right of way may be claimed through them by prescription. The right to burial may be subject to the payment of a fee to the incumbent, if such has been the immemorial custom of the parish, but not otherwise. The spirit of the ancient canons regarded such burial fees as of a simoniacal complexion, inasmuch as the consecrated grounds were among the res sacrae—a feeling which Lord Stowell says disappeared after the Reformation. No person can be buried in a church without the consent of the incumbent, except when the owner of a manor-house prescribes for a burying-place within the church as belonging to the manor-house. In the case of Rex v. Taylor it was held that an information was grantable against a person for opposing the burial of a parishioner; but the court would not interpose as to the person’s refusal to read the burial service because he never was baptized—that being matter for the ecclesiastical court. Strangers (or persons not dying in the parish) should not be buried, it appears, without the consent of the parishioners or churchwardens, “whose parochial right of burial is invaded thereby.”
In Scotland the obligation of providing and maintaining the churchyard rests on the heritors of the parish. The guardianship of the churchyard belongs to the heritors and also to the kirk-session, either by delegation from the heritors, or in right of its ecclesiastical character. The right of burial appears to be strictly limited to parishioners, although an opinion has been expressed that any person dying in the parish has a right to be buried in the churchyard. The parishioners have no power of management. The presbytery may interfere to compel the heritors to provide due accommodation, but has no further jurisdiction. It is the duty of the heritors to allocate the churchyard. The Scottish law hesitates to attach the ordinary incidents of real property to the churchyard, while English law treats the ground as the parson’s freehold. It would be difficult to say who in Scotland is the legal owner of the soil. Various opinions appear to prevail, e.g. as to grass growing on the surface and minerals found beneath. The difficulty as to religious services does not exist. On the other hand, the religious character of the ground is hostile to many of the legal rights recognized by the English law.