Churchyard. The churchyard in the earliest days of Christianity was often prior in time to the church itself. The Roman law so strictly protected the area within which stood monuments of the dead from violation, and even from the incidence of those acts of ownership to which other lands were subject, that the Christians found it usually feasible to obtain security for their burial-places, which would have been by no means equally extended to their places of religious assembly. For this reason, and also from personal feeling, they were in the habit of assembling for worship at the tombs of martyrs, and it became usual to erect churches close to these. But where the church was prior in point of time, it was not at first usual to bury within the curtilage or precinct of the building, and the cemeteries were entirely apart. A few instances of interment within the churchyard proper appear as early as the 4th century, but it is not till after the 6th that it became a general custom. The first direct evidence of the formal consecration of a burial-ground is in this same era (Greg. Turon., De Gloria Confessorum, chap. 6), but the usage most probably dates much earlier, because such dedication was customary in respect of all things and persons set apart for religious purposes. The belief in the efficacy of prayers for the dead had much influence in promoting burial within the precincts of churches, as those attending for worship might be expected to pray for those interred close by; and this reason, adduced by Gregory the Great, was embodied in the Canon Law.
The introduction into England of the custom of burying in churchyards is ascribed to Cuthbert, Archbishop of Canterbury (741-758), and by common law the freehold of the churchyard belongs to the rector of the parish, qualified by the rights of the parishioners, who, in their turn, are bound to repair the fence at their own cost, unless there be a local custom for the owners of adjoining lands to repair so much of the fence as marches with their ground. The trees and grass growing in the churchyard also belong to the rector, but though he may depasture his sheep or cattle there, he is not at liberty to cut down the trees unless to provide timber for repairing the church. Until the enactment of the statute 43 and 44 Vict. chap. 41, no form of burial service except that of the Church of England could legally be used in any churchyard; but under that act notice may be given to the incumbent or officiating minister, by the representatives of any deceased person, that they intend the burial to be either without any religious service at all, or with some 'Christian and orderly religious service' other than that of the Church of England. The widest interpretation is to be put on this definition, so as to include all services used by any society professing to be Christian, but non-Christian rites are specifically excluded from the operation of the statute. Churchyards, even if closed for purposes of burial, cannot under the existing law be converted to secular uses, and the freehold continues to vest in the incumbents of the parishes where they are situated. Any person guilty of violent or indecent behaviour in a churchyard, or disturbing any clergyman conducting a burial therein, is liable by 22 and 23 Vict. chap. 32, sect. 2, to a penalty of £5 or two months' imprisonment, and for damage to any monument or fence, under 24 and 25 Vict. chap. 97, sect. 39, to imprisonment not exceeding six months with or without hard labour. See BURIAL, CEMETERY.