In the eighteenth and nineteenth centuries in England and Wales, body-snatchers or resurrectionists were commonly employed by anatomists. A shortage of available bodies for medical students and doctors to study and dissect led to corpses becoming a commodity; although the general public was concerned by disinterment, bodies were not legally anyone’s property.
Measures taken to stop resurrectionists included, night patrols of graveyards sites, physical barriers such as “mortsafes” ranging from iron cages to heavy stone table tombstones or concrete boxes and heavy stone slabs and in some instances secure coffins impeding the extraction of the corpse.
In Gilbert v Buzzard (1820) 3 Phill 335; 161 ER 1342, often described as the leading case on the common law right of burial in the churchyard; Gilbert wished to bury his deceased wife in an iron coffin, as a protection against grave robbers. Buzzard as churchwarden, refused internment of the coffin, as the parish disapproved of iron coffins.
As the secular courts held that the right of a burial was a common law right alone: but … the mode of burial is a ’matter of of ecclesiastical cognisance alone’ Gilbert took his complaint to the local ecclesiastical court noting
‘ that a parishioner has a right to be buried in his own parish churchyard: but it is not quite so easy to find the rule … that gives him the right of burying a large chest or trunk along with himself’ (p.1348).
A coffin burial imposed a burden on the parish to purchase and maintain additional burial grounds; coffins took up more space in the churchyard, and retarded the ‘dissolution’ of the human remains in the soil, preventing the use of the ground for future burials.
The Chancellor ordering the parish to calculate a scale of charges for digging the grave and burial in both wood and iron coffins (including separate payments to churchwardens) enabled Gilbert to bury his wife as he wished, and the parish was compensated for the increased financial burden that this caused.
The scale of fees that was eventually approved included separate payments to Buzzard and the churchwardens. The Chancellor held that a relative of a deceased
‘has no right … to quarrel with the public uses to which [the fee] has been applied by the parish’ (p.1351).
Interestingly the ecclesiastical courts doubted (Dixon (1892) Probate Division 386) that the common law right of burial extended to the burial of cremated remains, although this avoids the practical difficulties identified with coffin burial in Gilbert v Buzzard. s.3(1)Miscellaneous Provisions Measure 1992, confirms a person who has a right of burial in a churchyard has a right to the burial of their cremated remains.