unconsecrated wall or fence between the consecrated and the unconsecrated tion of conportions of any burial ground provided under the herein before secrated and recited acts and this act, or any of them: Provided always, that part of in the case of any burial ground where there shall be no such cemetery. wall or fence, it shall be the duty of the burial board having the care of such burial ground to place, and from time to time to repair and renew such boundary marks of stone or iron as may be sufficient to show the boundaries of such consecrated and unconsecrated portions respectively." from refusal Sect. 12. "If upon the application in writing by any burial Appeal to board to the bishop of the diocese for the consecration of a burial archbishop ground, declared in such writing to be in a fit and proper con- of bishop to dition for the purpose of interment according to the rites of consecrate. the. . . . Church of England, . . . . which application the board is required to make as soon as such ground is in such fit and proper condition, the said bishop shall refuse to consecrate the same, it shall be lawful for such burial board to appeal from such refusal to the archbishop of the province, who shall decide the matter in dispute; and if the said archbishop shall decide that the said burial ground is not in a fit and proper condition as aforesaid, then the board shall be bound to put the said ground in a fit and proper condition; and if the said archbishop shall decide that the said burial ground is in a fit and proper condition as aforesaid and ought to be consecrated, such decision shall be communicated in writing by the archbishop to the bishop aforesaid; and if after such communication the said bishop shall not within one calendar month consecrate the said burial ground, the said archbishop shall, under his hand and seal, license the same for the interment of bodies according to the rites of the . . . Church of England, . . . . and the licence of the said archbishop so granted as aforesaid shall, until such burial ground be consecrated, operate to make lawful the use of the same as if it had been consecrated." consecration. Sect. 13. "In any burial ground provided under the powers Power to of the acts herein before recited or this act, respecting which one clergyman to of her Majesty's Principal Secretaries of State shall have certified bury before that the necessary provisions have been complied with, it shall be lawful for the incumbent or incumbents of such parish or parishes for which such burial ground is provided, or his or their curate or curates, or such duly qualified person as any such incumbent may authorize, if such incumbent, curate, or such duly qualified person respectively think fit, to bury in such burial ground prior to the decision of the bishop or archbishop upon the application for the consecration thereof." to vaults or By sect. 23, her Majesty may, by Order in Council, "from Orders in time to time order such acts to be done by or under the direction Council as of the churchwardens or such other persons as may have the places of care of any vaults or places of burial for preventing them from burial dangerbecoming or continuing dangerous or injurious to the public ous to health. health; and every such Order in Council shall be published in When faculty required. 18 & 19 Vict. c. 128. ground. the London Gazette; and such churchwardens or other persons The chancellor of London has holden that upon an Order in By 18 & 19 Vict. c. 128, s. 18, "In every case in which any Order in Council has been or shall hereafter be issued for the Care of closed discontinuance of burials in any churchyard or burial ground, the burial board or churchwardens, as the case may be, shall maintain such churchyard or burial ground of any parish in decent order, and also do the necessary repair of the walls and other fences thereof; and the costs and expenses shall be repaid by the overseers, upon the certificate of the burial board or churchwardens, as the case may be, out of the rate made for the relief of the poor of the parish or place in which such churchyard or burial ground is situate, unless there shall be some other fund legally chargeable with such costs and expenses.' No building except church closed ground. or chapel on Use of closed Consecration of churchyards. Where the closed ground is a churchyard, the duty falls on the churchwardens; where it is a mere burial ground, the duty falls on the burial board (). The act does not apply to private burial grounds (o). The act 47 & 48 Vict. c. 72 prevents the erection of any buildings upon a burial ground closed by Order in Council, except enlargements of a church or chapel. The acts 44 & 45 Vict. c. 34, and 50 & 51 Vict. c. 32, provide for the use of closed churchyards and other burial grounds as open spaces " for exercise and recreation in the metropolis and elsewhere, under certain conditions and with certain provisions which will be more fully treated of hereafter (p). By 30 & 31 Vict. c. 133, amended by 31 & 32 Vict. c. 47, provisions are made for facilitating the consecration of churchyards (q); and the powers given to limited owners of conveying sites for schools under 4 & 5 Vict. c. 38, and 12 & 13 Vict. c. 49, (m) Rector, &c. of St. Mary-atHill v. Parishioners, (1892) P. p. 394; Rector, &c. of St. Michael, Bassishaw v. Parishioners, (1893) P. p. 233. The same learned judge had held that, without an order in council, the ecclesiastical court might, on being satisfied of the sanitary necessity, grant such a faculty: Vicar, &c. of Aldgate v. Parishioners, (1892) P. p. 161; Rector, &c. of St. Helens v. Parishioners, ib. (n) Reg. v. Burial Board of Bishop (0) Reg. v. St. John's, Westgate, 2 B. & S. p. 703. (p) Vide infra, Part VI., Chap. II., sect. 5. (2) Vide infra, Part VI., Chap. II., sect. 2. ! are extended to conveyances of land for churchyards: a form of conveyance is given; and such conveyances are declared to be exempt from stamp duty. after five By sect. 7, "From and after the expiration of five years after No claim to the conveyance of any lands or hereditaments for such addition land set apart to any churchyard or burial place, and the enclosure of the same years. within one boundary fence, although the same shall not have been consecrated, and although no burial shall have been had within the same during that period of time, the said lands and hereditaments shall for the purposes of this act become and be and remain absolutely vested in the person or persons or corporation in whom the churchyard or burial place to which they are added is vested, free from all demand or claim of any person or persons or corporation whatsoever, and without being thereafter subject to any question as to any right, title, or claim thereto, or in any manner affecting the same. sixth of land secured to By sect. 9, as amended by 31 & 32 Vict. c. 47, s. 1, "When Exclusive any land shall be so added to a consecrated churchyard, and right to onesuch land shall have been the gift of any person, whether added to resident or not in the parish or ecclesiastical district in which churchyard such churchyard is situated, it shall be lawful for the giver of may be such land to reserve the exclusive right in perpetuity of burial donor. and of placing monuments and gravestones in a part of the land so added not exceeding one-sixth of the whole of the said land, and the part in which such exclusive right is reserved shall be shown and coloured on the plan endorsed on the instrument declaring or recording the consecration of the land added to the churchyard; and a memorandum, in the form 'given in the act,' shall be written on the said instrument and signed by the incumbent and churchwardens of the parish or ecclesiastical district in which the same is situated"; and . . . "the memorandum so signed shall, after such land shall have been declared to have been consecrated, operate as an exclusive right in perpetuity in the land therein referred to, and the expenses of preparing and executing such memorandum shall be borne by the person by whom the reservation is made." same condi land. Sect. 10. "The exclusive right of burial and of placing Such reserved monuments and gravestones as aforesaid shall be considered portion to be to be the real estate of the giver, his heirs and assigns, and subject to no body shall be buried or monument or gravestone placed tions as other in the land in which such rights have been granted, except consecrated by consent of the owner thereof for the time being, but no such reservation shall give the right to bury the body of any person not entitled to be buried in consecrated ground; and the bishop of the diocese, and all persons acting under his authority, shall have the same right and powers to object to the placing and to procure the removal of any monumental inscription within the ground so reserved as he has to object to or procure the removal of any monumental inscription in any consecrated ground: Provided always, that the consent of the of State. owner for the time being shall not be required for the burial of a deceased owner or of a wife or widow of any deceased owner who has been buried or shall be about to be buried in such ground." As to closing Sect. 11. "Such reserved portion shall not be included in any by Secretary Order in Council under the Burial Acts for closing the churchyard to which it belongs, but it may be closed under a separate Order founded on a special report that the ground is in such a state as to render any further interments therein prejudicial to the public." Service need not be performed on In the case of Rugg v. Kingsmill, already referred to (r), it was laid down that the ordinary cannot compel an incumbent unconsecrated by ecclesiastical censure to perform the burial service on the unconsecrated ground in which the only entrance to a particular vault is to be found. ground. No reverter of consecrated ground. 42 & 43 Vict. c. 31. Cemeteries made by sanitary authorities. In the case of Campbell v. The Mayor and Corporation of Liverpool (s), by an act of Will. III., certain land belonging to the parish of Liverpool was set apart and dedicated to the use of a burial ground, and by the sentence of consecration the corporation renounced all right to the land; and it appeared that in 1854 the ground was closed against burials by an order in council. In 1866 the corporation, being authorized to take a portion of the burial ground under the Liverpool Improvement Act, served upon the rector, ordinary, and patron of the parish, the usual notice to treat, and upon a reference to arbitration a sum of money was awarded for compensation; but the corporation subsequently refused to pay, upon the ground that the fee simple of the land reverted to the corporation upon its being closed against burials, and the use for which it was dedicated having come to an end :-it was holden, however, that by the act of parliament, followed by the sentence of consecration, the land was dedicated for ever to the use of a burial ground, and there was no reverter of the fee to the corporation; and that, if necessary, the court would presume a conveyance of the legal estate by the corporation. A further provision for the supply of public burying grounds has been made by Mr. Martin's Act (42 & 43 Vict. c. 31). This act, which is to be construed with the Public Health Act, 1875 (38 & 39 Vict. c. 55), called “the principal act," and with the Cemeteries Clauses Act, 1847 (10 & 11 Vict. c. 65), provides as follows by sect. 2: "(1.) The provisions of the principal act, as to a place for the reception of the dead before interment, in the principal act called a mortuary, shall extend to a place for the interment of the dead, in this act called a cemetery; and the purposes of the principal act shall include the acquisition, construction, and maintenance of a cemetery. "(2.) A local authority may acquire, construct, and maintain a cemetery either wholly or partly within or without their dis (r) L. R. 2 P. C. p. 59. Vide (8) L. R. 9 Eq. p. 579. supra, p. 652. trict, subject as to works without their district for the purpose of a cemetery to the provisions of the principal act as to sewage works by a local authority without their district. (3.) A local authority may accept a donation of land for the purpose of a cemetery, and a donation of money or other property for enabling them to acquire, construct, or maintain a cemetery." The local authority means the sanitary authority, rural or urban. The clause in the principal act as to mortuaries is sect. 141. Cemeteries By sect. 258 of the Lunacy Act, 1890 (53 & 54 Vict. c. 5): 53 & 54 Vict. "(1.) The visiting committee of an asylum, with the consent of c. 5. the local authority by whom they are appointed and of a secre- made for tary of state, may provide for the burial of lunatics dying in the lunatic asyla. asylum and of the officers and servants belonging thereto 66 66 (a) By appropriating any land already belonging to them or acquiring any land, not exceeding in either case two acres, for enlarging an existing burial ground or for providing a new burial ground: (b) By agreeing with any corporation, or persons, or body of persons willing to provide for the burial of such lunatics and other persons as aforesaid. "(2.) The committee may procure the consecration of a new or enlarged burial ground, and in the case of a new burial ground, may provide for the appointment of a chaplain therein. (3.) The incumbent of the parish in which a new or enlarged burial ground provided by a visiting committee is situate, shall not be entitled to any fee for the interment of any person buried therein by direction of the committee." SECT. 3.-Service of Burial. be hindered In the case of Reg. v. Fox (t), it was held that a gaoler might Whether not detain the body of one dying in his custody for fees or other burial may expenses. It was at one time a vulgar error that a body might for debt. be seized by creditors. This was not the law, even when it was customary to imprison for debt. traitors. In 1745, a remarkable case happened after the rebel assizes at As to burial Carlisle, where some of the rebels died after their attainder, and of attainted before execution. The question was, whether they should be admitted to Christian burial? And the then lord bishop of the diocese requested the opinion of a very learned gentleman; who made the following remarks and extracts for his lordship's consideration: "It is certain, that after execution, the bodies being at the (t) 2 Q. B. p. 246; S. C. nom. In the Matter of the Bailiff of Wakefield, 1 G. & D. p. 556. |