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Carlow County - Ireland Genealogical Projects (IGP TM)


Irish Burial Laws

Written by Cara Sept 2007


Irish Burial Laws

To write about anything pertaining to burials in Ireland, the laws of those days will have to be touched on, it is not sufficient to say, that the Roman Catholics were not always buried in their own graveyards, and not always according to their own faiths, it would and will be necessary to touch upon those laws that were governing Ireland in those years past. As this then shows the reasons behind mixed grave yards in Ireland. Which of course did and do still exist, which is shown by headstones, found in those graveyards.

1 - Queen Mary who succeeded Edward VI. in 1553, restored the Catholic religion in England and Ireland.

2 - During Mary's reign Ireland was quite free from religious persecution. The Catholics were now the masters; but they showed no disposition whatever to molest the few Protestants that lived among them. Ireland indeed was regarded as such a haven of safety, that many Protestant families fled hither during the troubles of Mary's reign.

3 - On the death of Mary in 1558, Elizabeth became queen. Henry VIII. had transferred the headship of the church from the Pope to himself; Edward VI. had changed the state religion from Catholic to Protestant; Mary from Protestant to Catholic; and now there was to be a fourth change, followed by results far more serious and lasting than any previously experienced.

4 - A parliament was assembled in Dublin in 1560, to restore the Protestant religion; and in a few weeks the whole ecclesiastical system of Mary was reversed. The act of supremacy was revived, and all officials and clergymen were to take the oath or be dismissed. The act of uniformity was also re-introduced; i.e. an act commanding all people to use the Book of Common Prayer (the Protestant Prayer Book), and to attend the new service on Sunday under pain of censure and a fine of twelve pence for each absence--about twelve shillings of our money.

5 - Wherever these new regulations were enforced, the Catholic clergy had of course to abandon their churches, for they could not hold them without taking the oath. But they went among the people, administered the rites of the church, and took good care of religion just the same as before.

This compulsion prevailed however only in the Pale Mainly Dublin and in some few other places. In far the greatest part of Ireland the government had no influence, and the Catholics were not interfered with. Even within the Pale the greater body of the people took no notice of proclamations, the law could not be enforced, the act of uniformity was a dead letter, and the greater number of the parishes remained in the hands of the priests.

The Catholic parish clergy, i.e. the existing parish priests, were not disturbed; but all had to be registered, and should give security for good behaviour. All bishops, Jesuits, friars, and monks were ordered to quit the kingdom by the 1st of May 1698. Any who returned were guilty of high treason: punishment death. For any priest landing in Ireland, imprisonment, after which transportation to the Continent. No person to harbour or relieve any such clergy. Any priest who turned Protestant to get a pension of £30. No burials in churchyards of suppressed monasteries. No Catholic chapel to have steeple or bells. *

Social position of Catholics and Protestants were not to intermarry. If a Protestant woman married a Catholic, her property was forfeited to the next Protestant heir. A Protestant man who married a Catholic was to be treated as if he were himself a Catholic.

A Catholic could not serve on a grand jury, and an attorney could not take a Catholic clerk.

From the time of Elizabeth Protestantism remained the religion of the state in Ireland, till the disestablishment of the church in 1869.

Some Burial Customs

On the death of a Christian a bell was rung. Some even said a bell was placed in the vault so if the person was not dead they could ring it to be let out. The body was watched or waked for one or more nights. In case of eminent persons the watch was kept up for seven days as it was St. Patrick was waked for twelve nights; Among the pagan Irish, seven nights and days was the usual time for great persons. In Christian obsequies lights were kept burning the whole time: during St. Patrick's twelve-night wake, the old Irish writers tell us* that night was made like day with the blaze of torches.*

The mourners raised their voices when weeping This wailing was called caoi or caoine [kee, keena], commonly anglicised to keen or keening. The lamentation was often accompanied by This custom has also come down to modern times. A regula and is known as a eulogy, composed and recited at the time of death.

Among the Irish pagans it was the custom which has continued to Christian times and is practiced today to wash the body.

The corpse was wrapped in a recholl, (shroud or winding-sheet) also called esléne which is derived from es, death, and léne, a shirt called a 'death-shirt. Taken either by a cart drawn by an oxen. The deal coffin being a later edition and this then gave the men who carried the man a handle to hold and in then came the edition of a black coach and black horses with plumes of black feathers, allowing of course that one could afford the fee. And in later times the man made hearse driven by man himself. In Ireland today the people turn out to walk the coffin to the Church where it is rested, until the following days service, and it is then, yet again that the folk turn out and walk behind the hearse to the graveside.

Right of Burial

Every parishioner and inhabitant in a parish and every person dying with the parish has the right to be buried in the parish church yard or burial ground. The right is enforceable at Common Law and not merely in the Ecclesiastical Court( e) R v Taylor 1721, Burn Ecclesiastical Law, Vol 1., pge 258.

If a parish is divided into Ecclesiastical districts under the Church Buildings Acts ( 1818-1827) and there is no burial ground within any such district, then, until, a burial ground has been provided, the bodies of a person dying within such district may be interred in the cemetery of the parish church, in al respects as if such division had not taken place.

But when any such district which has become a new parish by virtue of the new Parish Act 1856 has a burial ground of its own, the inhabitants of the district lose the right of being buried in the churchyard of he mother parish. Strangers to the parish, (persons not connected to the parish) with the permission of the incumbent and the church wardens and can if it causes inconvenience to the parishioners, is an offence against Ecclesiastical Law and might probably be restrained by injunction.

The right of burial does not entitle the representative of the deceased to insist upon the burial of the deceased in any part of the churchyard, and there cannot be a good custom entitling the inhabitants of a particular parish to be buried as near as possible to their ancestors. The right of burial extends only to burial in an ordinary manner. It does not carry with it the right to erection of a monument .( See Tombs and inscriptions )Parishioners and others entitled to a right of burial in the parish churchyard have not, as such, any right to burial within the church ( this right being afforded generally to the clergy themselves.)

Exclusion from Christian Burial

Persons who die un-baptised or excommunicated, or who have laid violent hands upon themselves, are excluded Ecclesiastical law from Christian Burial, and the full burial service must not be read over the remains. Although it has been stated, the burial service according to the rites of the Church is not to be used in the case of person who has never been baptised, a minister may not refuse to perform the service in the case of a person baptised according to the forms of a Church or sect other than the Church of England, or by a layman in the name of Trinity* *Until 1844 Papists were not only permitted, but required to be buried with the Church of Ireland service, under the sanction of penalty imposed on the representatives( stat.3. Jac 1, c.5,s.10, repealed by stat. 7 & 8 Vict.c.102) Baptism by the Primitive Methodist Church was also considered sufficient

*Children who died un-baptised were very often not buried within the burial grounds, but were afforded a strip of ground, which I have found, to be marked by Love stones, with no record of their passing inscribed on any stone. See under Memorial for Children

The body of every offender executed by process of Law must be buried with the walls of the prison within which judgement of death is executed on him, sometimes with representation some of these burials have taken place elsewhere. * An offender was generally buried close to a wall, where the sun did no shine on him/her.

Poor Law Unions Burials including Deceased Paupers

Poorhouse and Workhouses Rules of Notice of Burial must accompany the poor individuals The notice is to be in writing plainly signed with the name and stating the address of the person giving it; it is to be in a form; and it is to state the day and hour when the burial is proposed to take place. The notice, in the case of the deceased poor or others whom a board of guardians are required or authorised to bury, may be given to the Rector, Vicar, or other incumbent, in manner above stated, and also to the master of any workhouse in which the poor person may have died, or otherwise to the guardians, by the husband, wife, or next of kin of such person having charge of the burial ( generally I have found this to be the person running the said institute).

1-Boards of guardians are bound as occupiers of their work houses, to provide for the burial of poor persons dying therein; except in the case of those dying on the premises in the their occupations.

2-Where the guardians of a parish or union are possessed of land suitable for the purposes of a burial ground, and land is consecrated, the guardians my lawfully direct any such dead bodies to be buried therein. Under the rites of the Church of England ( Ireland) In the time of the Famine, many were buried in these pits, in these unmarked graves throughout Ireland.

3-Where a committee of an asylum undertake the burial of a pauper lunatic, and the public burial ground of the parish where the death took place is closed or inconveniently crowded, the burial may take place in a public burial ground, or some other parish with the consent of the Church wardens or minister of that parish. And the committee would then pay the burial fees under any statute or custom. The cost being met by the poor law union or the institution for lunatics

Modes of interment

1-Lying flat

2-Standing up

3- No coffin was used in the beginning of time, it was simply lined with moss and fern creating a soft bed for the user.

4-Cremation. In earlier days cremation was practiced but little is known of the practice Cremation was extensively practised in pagan Ireland; for urns containing ashes and burnt bones are found in graves in every part of the country.
Cremation act was introduced in 1902 ( 2 Edw.7.c.8)

STANDING UP

Occasionally the bodies of kings and chieftains were buried in a standing posture, arrayed in full battle costume, with the face turned towards the territories of their enemies. Standing up in graves. In 1848 a tumulus called Croghan Erin in the County Meath was opened, and a skeleton was found under it standing up. The pagan Irish believed that while the body of their king remained in this position, it exercised a malign influence on their enemies, who were thereby always defeated in battle

Fees on Burials in Churchyards

1- No fee in respect of Burial in a parish churchyard is due at common law, but a burial fee may be due by immemorial custom

2- The burial fee is by custom generally paid to the incumbent

3- There cannot be a valid custom for the payment of burial where no service is conducted

4- Burial fees by custom are not recoverable in a court of law, only in the Ecclesiastical Court only

5- In theory in order, that a customary burial fee should be payable, the custom must have originated before the time of legal memory.

6- Fees in additional to burial fees are generally paid in respect of the erection of monuments, the constructions of Vaults.

7- Fees were and still today are paid for the burial of strangers to the parish for instance if you died in Dublin and was not from Carlow and wished to be buried in Carlow there is an large and cumbersome fee that needs to be paid for that privilege. A modern trend to inter ashes in ancestors graves is on the up.

Monuments in Churches and Churchyards

After the establishment of Christianity it became customary to erect a tomb over the grave, having a flat slab on top, especially in the cemeteries of monasteries, with an inscription, generally in Irish, but sometimes in Latin. In many cases the monument was a simple inscribed pillar-stone; or as in many cases a simple rock which became known as a *Love Stone* was placed over the beloved deceased, and no record of passing recorded, only with the annals of the family.

In strictness it would seem that a person who places a monument to the dead in a church or churchyard otherwise than in pursuance of a faculty in that behalf renders himself liable to a criminal suit in the Ecclesiastical Court; and there cannot it seems , be a valid custom for the erection of such a monument in a particular church, even with the consent of the Churchwardens or the like, without a faculty (Seager v Bowles 1823). In practice, however, a faculty is seldom sought in an ordinary cases. The leave of the incumbent or churchwardens, or both, together with that of rector where the freehold is vested in a rector other than the incumbent is obtained and treated as sufficient authority without more.

The placing of a monument in a church or church yard without a faculty in that behalf us further an act of trespass, in respect of which the incumbent or rector, as the case may be, has a cause of action if his consent has not been obtained. A faculty is not necessary to authorise a repair of a monument that has been lawfully erected. Modern Act *But today you must seek the permission of Heritage Service ( formerly the office of Public Works ) to work on a gravestone as they have introduced as a legal role in the protection of old graveyards in Ireland and this comes under the National Monument Act 1930-1994.

Copyright of headstones

 

The nature of  an inscription proposed to be places on a  monument in a church or church yard may constitute a ground for the refusal of a faculty for the erection of the monument.

A monument set up in a church or churchyard remains the property of the person by whom during his life, and that person may accordingly sustain an action for trespass against anyone removing or defacing it; it is said on high authority that after the death of the person setting it  up the monument  becomes the property of the heir of the deceased in whose honor it was erected, and descends to the  heirs of the latter, as being in  the nature of an heirloom,, and at any rate that such heirs may sustain an action if the monument is interfered with .

The alteration of monument may, however be authorized by faculty.

Burials of Persons found Drowned

The overseer ( including the Church wardens where they are ex officio oversees of any parish which any dead human body or bodies may be found thrown in, cast on shore from the sea by wreck or otherwise, or found in or cast on shore from any tidal r navigable waters, or found floating or sunken in any such waters and brought to the shore or bank, must upon notice to them that any such body or bodies are thrown or cast on shore by the sea, or as the case may be, and that the same is or are lying within the parish, cause the same to be removed forthwith to some convenient place and with all convenient speed cause the same to be decently interred in the church yard or burial ground of that parish, so that the expenses attending such burial do not exceed the sum which at the time is allowed in the parish for a pauper funeral

The minister, clerk, and sexton of the parish must without any improper loss of time, admit such bodies to be interred in the parish churchyard or burial ground, and perform their customary duties in respect of the burial, and are entitled by way of compensation to such sums as are usually paid on a pauper funeral

Such is the case of the headstone in Holy Trinity Castlemacadam Co Wicklow Ireland Where far from the sea stands a monument with a carved in white quartz a fouled anchor, and which tells its own story from the inscription there on.

Side one Sacred to the memory Of Captain James Thomas Belton S.S. City of Dundee, By whose Gallantry all the passengers were saved, when during a fog the vessel was run into and sank in the Bay of Cardigan, Early on the morning of 4th October 1908 “When thou passest Through the Waters I will be with Thee” The remains were washed ashore at Ennereilly, and here by loving hands laid to rest on Hallow Eve. His name is one of the first inscribed on the Carnegie Trust Roll of Heroes Born at Hull 20th Nov 1836 This memorial was erected by his brothers, officers and friends to commemorate the heroic deed of a brave and noble Englishman Two of the officers both Irishmen-Patrick Leban Second Officer aged 45 years and Thomas Burke Quartermaster aged 47 years, shared the same glorious end going down with the ship.

* Noted from the Parish priests register Washed ashore at Ennereilly. Vessel sank in 15 minutes S ( salvage) mission the Capt saved all the passengers, but lost his own life by so doing One pound fee paid but reduced ( Drowned persons act 1808-1886)

In 1880 everyone was given free access to the graveyards - to enter and visit their own deceased and attend the funerals.

MEMORIAL TO CHILDREN

Although not of ancient times, but one close to my heart, is the story of the lass who approached the Union of Catholic Mothers Archdiocesan President in 1997 and told her the story of her mother having, given birth to a baby girl, this child had died , and that was in 1947. And what was still the custom then the baby girl was taken, placed with a woman who had just died.

Now the parents learnt of where the burial would be, and went to the cemetery to attend, but they turned away. Such was the custom of the day, that the powers that be thought they were protecting the mother and family, but through the years the mother of this baby girl had not come to terms with the loss of her child. Her daughter in 1997 asked if their was some way the Union of Catholic Mothers could help, to establish a memorial to babies who had died in the same circumstances as her sister.

A few weeks later, during a session of the UCM National Council Meeting, the loss of a baby was talked about in great depth, and many moving stories arose that had affected even their members. The Archdiocesan Committee realising there was a great need for this memorial approached Archbishop Kelly who in turn contacted the Cathedral Administrator Monsignor Cookson, they too were enthusiastic. The memorial was to be a free standing candle which would burn perpetually.

At the base would be rooms for flowers. The candle is located in the Children’s Chapel and is dedicated to all stillborn babies, babies who died soon after birth, ,miscarried babies, aborted babies, and babies whose final resting places are unknown..

Before you dismiss this as English with no Irish content, then let me assure you the babies that died in Liverpool were indeed of Irish origin.

They say time heals, but it only puts a thin membrane over a broken heart, which can at any moment be broken and you feel grief as intensely as at the beginning.

SUPERSTITIONS CONCERNING THE DEAD

1- The Byrne ancestors are supposed to hear three knocks a the onset of a death occurring in the family.

2- A coach and horses appear at the gates of Rossahane Co Wicklow which heralds a imminent death, of the O’Tooles connected to those already interred there.

3-The souls of the dead who may happen to die abroad, greatly desire to rest in Ireland. And the relations deem it their duty to bring back the body to be laid in Irish earth. But even then the dead will not rest peaceably unless laid with their forefathers and their own people, and not amongst strangers.

4-The corner of a sheet that has wrapped a corpse is a cure for headache if tied round the head.

5-It is believed that the spirit of the dead last buried has to watch in the churchyard until another corpse is laid there; or has to perform menial offices in the spirit world, such as carrying wood and water until the next spirit comes from earth. They are also sent on messages to earth, chiefly to announce the coming death of some relative, and at this they are glad, for then their time of peace and rest will come at last.

6-Any one meeting a funeral must turn back and walk at least four steps with the mourners.

7-If the nearest relative touches the hand of a corpse it will utter a wild cry if not quite dead.

8-All Hallows Eve the dead walk, and on every tile of the house a soul is sitting, waiting for your prayers to take it out of purgatory.

9-In one Irish family a cuckoo always appears before a death. A lady who arrived on a visit at a house observed one morning a cuckoo perched on the window-sill, but she felt no alarm, for there was no sickness in the family. Next day, however, one of the sons was carried home dead. He had been thrown from his horse when hunting, and killed on the spot.

10-In another family a mysterious sound is heard like the crashing of boards, and a rush of wind seems to pass through the house, yet nothing is broken or disturbed. The death of an officer in the Crimea was in this way announced to his family, for the news came immediately after the warning sound, and then they knew that the rush of the wind was the spirit of the dead which had passed by them, but without taking any visible form.


Sources:-
A Concise History of Ireland by P. W. Joyce http://www.libraryireland.com/JoyceHistory/PartV.php 
The laws of England /Ireland by the right Hon Earl of Halsbury Vol 3 (own copy)
Holy Trinity Transcribed - http://www.libraryireland.com/AncientLegendsSuperstitions/Superstitions-Dead.php

I do not claim this as my own works in total but I give recognition to those of my ancestors Lady Francesca Wilde and a noted author P W Joyce whom I admire and own many of his works. But of course some of it is my own works. And it is free for all those who wish to use it for their own research.

Cara Sept 2007


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