Imágenes de páginas
PDF
EPUB

Thallus to Pitgistus.—I delight to see the fruits all grow ripe, for the gathering of them is a just compensation of our labours; but I am particularly fond of taking the honey from the hives. After lifting some hives from the stores, I perceive I have some new swarms. The first thing I do is to select a portion for the gods: I then assign a portion for my friends. At present I send you this; next year, you shall receive from me better and sweeter.—Alciphron's Epistles, B. III. 1. 23.

Xiuhteuctli (master of the year and of the grass) was a god greatly revered in the Mexican empire. At their dinner they made an offering to him of the first morsel of their food, and the first draught of their beverage, by throwing both into the fire.-Cullen's History of Mexico, Vol. I. p. 252.

The North American Indians have a similar religious service. The women always throw a small piece of the fattest of the meat into the fire when they are eating, and frequently before they begin to eat. Sometimes they view it with a pleasing attention, and pretend to draw omens from it. They firmly believe such a method to be a great means of producing temporal good things, and of averting those that are evil: and they are so far from making this fat-offering through pride or hypocrisy, that they perform it when they think they are not seen by those of contrary principles, who might ridicule them without teaching them better.-Adair's American Indians, p. 115.

LAW REPORT.-VAULTS.

BRYAN V. WHISTLER.

WE beg leave to lay before our readers the statement of a case, which has lately formed the subject of decision by the Court of King's Bench, together with the substance of the opinions delivered by the learned Judges. The question, which the case involves, is, whether a Rector has power to grant permission to a party to erect a family vault? The Court has decided that he has not. This question presents itself to us as one of very great importance; the impression upon our minds has always been, and we believe it is also the general impression of the public at large, that a Rector does possess such a power. It is by no means our intention to deny the soundness of this decision, or at the present time to enter into any discussion of the principles upon which it is founded; but we think it our duty to take the earliest opportunity of making our readers acquainted with this case, which we cannot but regard as of great moment, to the end that if it be wrong, it may become the subject of discussion and its fallacy exposed; and if it be right, that our readers may be put upon their guard against infringing a portion of the law, with which we believe their

received notions have hitherto been at variance.

The circumstances of the case, so far as it is necessary to state them for the object we have in view, are these:

In the year 1819, a gentleman of the name of Bryan, residing at Hastings, of which place he was a parishioner, upon the decease of a member of his family, applied to the Rector for permission to make a family vault in the Church. Permission was given, and a sum of money, agreed upon at the time, was paid to the Rector for his consent; and as soon as possible a vault was completed, capable of containing several bodies. In this vault the body of the deceased member of Mr. B.'s family was interred, and shortly after a monument was erected in the Church, with the Rector's consent, bearing an inscription commemorative of the deceased, and referring to the vault as the cemetery of the family. In the course of a few months Mr. Bryan left Hastings, but without any intention of relinquishing his connexion with the place: it so happened, however, that he remained absent four or five years. In the mean time, the Rector, without having any commu

nication with Mr. B., caused the vault to be opened, and interred therein the body of another parishioner. This circumstance gave rise to an action by Mr. Bryan against the Rector for disturbing the vault. The case was tried at the Summer Assizes for the county of Sussex, in the year 1827, and a verdict found for Mr. Bryan, subject to the opinion of the Court of King's Bench upon the case.

The chief point insisted upon at the trial on the part of the Defendant was, that the interest claimed by the Plaintiff in the vault amounted to a freehold in the soil, and that, therefore, there ought to have been a conveyance of it executed by the Rector. Other points also were taken and reserved; but it is not important to state them, as they were merely of a technical character. And, indeed, it will be seen from the opinions of the learned Judges, or at least two of them, Bayley and Littledale, that the judgment of the Court would have been against the Plaintiff, if no grounds had existed for any such objections, upon the general principle, that a Rector has no power -to make any grant of the nature of that claimed by the Plaintiff.

Mr. Justice Bayley, after considering the case with reference to the rules and principles affecting the creation of interests in and easements upon freehold property in general, thus proceeded : "Assuming that the right in question is an easement, and that the Defendant (the Rector) had created it in a legal manner, namely, by deed, I am of opinion that it would be void, by reason of the inability of the Rector to make such a grant. The claim in the present case is for a vault capable of holding several bodies. Now it is clear that if a Rector has power to grant to an individual the exclusive use of any specific portion of the Church, he is at liberty to grant the whole in the same manner. Such a proceeding might be productive of inconvenience to the parish; and, at all events, would be highly objectionable, as being a conversion of the property of the Church to the exclusive use of an individual, and as tending unfairly to the prejudice of the successor. And, moreover, to support such a grant, it is not sufficient to urge that the freehold of the Church

is vested in the Rector, and that being absolute owner, he may dispose of it at his pleasure. Such interest is vested in him only in his character of incumbent, and he possesses it upon confidence to apply it for the purposes for which the law gives it him, namely, the discharge of the duties connected with his character-among which may be enumerated the duty of directing the burial of his parishioners in the most convenient and decorous manner. And, therefore, if a Rector is found to abuse the power or interest so confidentially vested in him, the law will refuse to lend its aid to the support of such acts of abuse. And I consider grants of this description abuses, because the duty of directing the burial of his parishioners imposes upon a Rector the necessity of exercising, from time to time, a discretion as to the manner in which the burial can best take place, with reference to the general interests of his parishioners. And if these grants are supported, that discretion is limited and rendered incapable of being exercised, in case circumstances should ever render it necessary, or for the interest of the parish, that the burial should take place in a manner different to that authorised by the grant. And observe, that this check upon the discretion affects not only the present but all future incumbents. For these reasons it seems clear to me that grants of this description cannot be supported, unless a faculty from the Ordinary be procured in the first instance. If such a course be adopted, no party has afterwards a right to complain of any injury or inconvenience arising from the grant. For the faculty is not granted until after all parties have been cited, and have either neglected to attend or failed to substantiate their objections. The consent of the Rector is given, and the Ordinary acts for his successors; the interests of the parish are considered and bound by the decision of the same authority, which the law regards as competent for these several purposes. In the case of a pew, a faculty is necessary to support a title to exclusive ownership, and I must say that the same reasons appear to me to be applicable to both

[merged small][ocr errors][merged small]

the present action could not be supported, confining himself, however, to a consideration of the case. The learned judge did not enter into the general question of the Rector's inability to make such a grant.

Mr. Justice Littledale, after adverting to the particular circumstances of the case, proceeded thus :-" But I am of opinion that if the right claimed in the present case had been granted in the most formal manner, the present action could not be maintained, inasmuch as the Rector has no power to make such a grant. And this will appear if we consider the origin of the practice of burial in churches. Burns, in his Ecclesiastical Law, under the title Burial,' has brought together the learning upon this subject. The practice of burying within the churches did indeed (though more rarely) obtain before the use of church-yards, but was by authority restrained when churchyards were frequent and appropriated to that use. For among those canons which appear to have been made before Edward the Confessor, the ninth bears this title, De non sepeliendo in Ecclesiis, and begins with a confession that such a custom had prevailed, but must now be reformed and no such liberty allowed for the future, unless the person be a priest or some holy man, who by the merits of his past life might deserve such a peculiar favour. However, at the first, it was the nave or body of the church that was permitted to be a repository of the dead, and chiefly under arches by the side of the walls. Lanfranc, Archbishop of Canterbury, seems to have been the first who brought up the practice of vaults in chancels, and under the very altars, when he had rebuilt the church of Canterbury, about the year 1075. No person may be buried in the church, or in any part of it, without the consent of the incumbent. In some of the foreign canons, it is said, without consent of bishop and incumbent; in others, without consent of bishop or incumbent. But our common law hath given this privilege to the parson only, exclusive of the bishop, in a resolution in the case of Francis

v. Ley, H. T. 12. Jac. i. (Cro. Ja. 367), that neither the Ordinary himself, nor the Churchwardens, can grant licence of burying to any within the church, but the parson only; because the soil and freehold of the church is only in the parson and in none other: which right of giving leave will appear to belong to the parson, not as having the freehold (at least not in that respect alone), but in his general capacity of incumbent, and as the person whom the ecclesiastical law appointed the judge of the fitness or unfitness of this or that person to have the favour of being buried; for anciently (as was said) the burying, not only in temples and churches, but even in cities, was expressly prohibited. And afterwards when the burying in churches came to be allowed and practised, the canon law directeth that none but persons of extraordinary merit shall be buried there; of which merit (and by conse quence of the reasonableness of granting or denying that indulgence) the incumbent was in reason the most proper judge, and was accordingly so constituted by the laws of the church, without any regard to the common law notion of the freehold's being in him, which if it proves any thing in the present case, proves too much : that neither without the like leave, they may bury in the church-yard, because the freehold of that is also declared to be in him.' From this it appears clearly that no person can claim a right to burial in the church, and that the Rector is to grant any application for that purpose only as a favour vouchsafed in consideration of the meritorious conduct of the deceased. This statement of the power of the Rector shews of itself the invalidity of the present grant. For to hold the Rector empowered to grant a vault, which shall serve for the burial place of several individuals, will have the effect of enabling him to limit that discretion which the interests of the church require should be subject to no restraint, and to convert one of the sacred ceremonies of religion into a matter of bargain and sale."

[merged small][ocr errors][merged small]

We are indebted to a correspondent for the following flattering testimony, from the Archdeacon and Clergy, &c. &c. of Bombay, given to the Hon. Mountstuart Elphinstone, on his resignation of the government of that Presidency.

Address of the Archdeacon and Clergy of Bombay, to the Hon. Mountstuart Elphinstone, Governor, &c. &c. &c. Νου. 14, 1827.

HON. SIR,-We, the Archdeacon and Clergy of the Established Church of England and Ireland, in the Presidency of Bombay, beg leave to offer to your Excellency the testimony of our unfeigned respect and attachment, and to express the regret which we feel in the anticipation of your intended return to Europe.

It is not because we do not cordially participate in those feelings which must naturally prompt the desire of re-visiting the land of our birth, that we view your approaching departure with regret; it is that while the eminent stations which you have successively filled, and particularly that of the government of Bombay, have served to display a character which has excited our admiration and gained our esteem, we are thus rendered more sensibly alive to the loss which we all sustain.

Our more peculiar province on this occasion is, to offer our sincere thanks for the kind attention which you have uniformly shewn towards the interests of the Church and its establishments, as well as to the cause of general education. When we compare their present state with what they were when you assumed the government, we see enough to insure to you our lasting gratitude.

Uniting heartily in the sentiments expressed by the general voice of the community, we offer our fervent prayers to Almighty God, that he may bring you in health and safety to your native land, where, we doubt not,

[blocks in formation]

Mr. Elphinstone's Reply to the Address of the Archdeacon and Clergy. VENERABLE SIR, and ReverendGenTLEMEN, The honour which you have just conferred on me, is rendered doubly valuable by the hands from which it came.

The reverence which we are accustomed to pay to the Clergy in our own country, is due to the ministers of the Church in India on additional and peculiar grounds. The difficulties, privations, and obstructions with which they have to contend, are multiplied by many causes; while the importance of their example is increased from the nature of the European Society, and from the effect which their demeanour must have in communicating an impression of our faith to the innumerable natives by whom they are everywhere surrounded.

In circumstances so arduous as these, it must reflect honour on the Clergy of this Establishment, that their conduct commands the highest respect of the community; and that their influence has an undoubted tendency to raise the character of the nation, and to maintain the dignity of our religion.

From persons so justly estimable, the favourable terms which you have been pleased to apply to me, cannot but afford the utmost gratification.

[blocks in formation]

Extract from the Address of the Native Princes, Chiefs, Gentlemen, and Inhabitants of Bombay, its Dependencies, and Allied Territories, &c. &c.

Grateful, however, as we are for the consideration which has been evinced for our personal interests and prosperity, it is the liberal and enlightened measures which have been adopted for communicating to the people, by improved methods, a knowledge of literature, science, and morality, that particularly demand our most unfeigned and heartfelt acknowledgements. To you, therefore, Hon. Sir, we find it impossible to express our gratitude in adequate terms; since, had it not been for the animating support with which you have so constantly encouraged and protected them, the efforts to excite a desire and love of intellectual and moral improvement, that have commenced so prosperously,

*

and promise to be crowned with ultimate success, must have been altogether unavailing. But permit us to acquaint you, that in order to evince that we are ourselves fully persuaded, that no amelioration can be of more incalculable benefit to this country than the diffusion, amongst our children and countrymen, of that extensive knowledge, those noble modes of thinking, those wise and liberal principles of government, and those sublime views of moral rectitude, by which the British are so eminently distinguished, we have determined to raise a subscription among ourselves, which at the present moment amounts to upwards of two lacks of rupees, for the purpose of founding one or more Professorships for teaching the languages, literature, sciences, and moral philosophy of Europe. Nor can we doubt that you will be pleased to comply with our earnest solicitation, that we may be allowed to honour these Professorships, as a slight testimony of our unceasing gratitude, with that name which we so much revere and admire, and to designate them as the "Elphinstone Professorships;" and that you will permit your portrait to be drawn by an able artist in England, in order that we may place it in the rooms of the "Native Education Society," as a permanent memorial of the liberal and enlightened founder and protector of that Society. &c. &c. (Signed and sealed by his Highness

the Rajah of Sattara, and others the Native Princes, Chiefs, and Gentlemen.)

THE LATE MR. CHRISTIAN,

A letter has been addressed to the S. P. G. by Mr. Principal Mill, of Bishop's College, Calcutta, dated 14th Jan. 1828, announcing the death of Mr. Christian. The following is an

extract:

"My present communication must be a short but a melancholy one, being nearly confined to announcing to the Society the deep misfortune which they, and the cause of Christianity here, have suffered in the untimely death of Mr. Christian, who fell a sacrifice to the climate of the Hills on the 16th of last

20,000%.

« AnteriorContinuar »