The callous churchwardens who dug up a child’s grave to make a new path

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This is an unusual case, and one that remained unresolved (as many did that came before the London Police courts). In mid November 1867 a solicitor approached the sitting magistrate at Wandsworth for a summons to bring the churchwardens of St. Mary’s Church, Battersea, to court.

The solicitor, Mr Condy, said he was representing the parents of a child who had died six weeks earlier. The child – aged just nine – had been buried in the churchyard but his grave had recently been dug up, and his body exhumed. Naturally this was extremely upsetting for the parents of the child and so they had asked the lawyer to intercede on their behalf. Since they were very poor, time was of the essence, as they could not afford a long drawn out legal action.

In court it was explained that the churchwardens had decided to lay a new path through the churchyard and they needed to move the boy’s grave as a consequence. The churchwardens ordered the newly laid grave to be opened and the child’s coffin to be removed and reburied somewhere else in the graveyard.

At no point, it seems, did they deem it necessary to consult with the bereaved parents, or even inform them so they might attend. Nor, and this was important, had they obtained any legal permission to move the child’s grave. According the the evidence presented they should have applied for a faculty (a legal term for reserving a burial spot) or a license from the secretary of state. The churchwardens had therefore infringed the terms of the Burial Act (1857).

However, Mr Dayman, the magistrate, thought the summons should be issued against the person that had dug up the child, not those that had instructed him, and that was the sexton. Mr Cindy said he’d approached the sexton but he insisted he was only following instructions, as ‘he was only a servant’.

The magistrate was insistent however; ‘If a man were told to do an unlawful act, he was not bound to do it’.

At this point a suggestion was made to the court that the parents might bring a civil action or take the churchwardens to the ecclesiastical (church) courts. Mr Condy said the first option was no use since the family had ‘no property in the body’. He added that, from his experience, pursuing a case in the ecclesiastical courts was ‘a tedious affair’. And in case they parents were too poor to do either. The police courts were the cheaper option, which explains why they were so frequently used by London’s poor.

Mr Dayman issued a summons to bring in the sexton. There was little hope that the parents would get much more than an apology and perhaps a small amount in compensation.

[from The Morning Post, Friday, November 15, 1867]

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