Opinions of eminent civi

lians as to the right of burial.

undoubtedly to be sparingly granted, since there can be no absolute claim of that kind." In Littlewood v. Williams (b), Gibbs, C. J., said, "The counsel for the defendant has been thundering anathemas against the churchwardens, who even with the assent of the vicar shall permit the bodies of strangers to be deposited in their churchyard. If it could be shown that other parishioners sustained actual inconvenience, it might be different; but if there is not that circumstance, the churchwardens have the discretion lodged in them to judge of the probability of it. On the evidence it does not appear that the vicar has ever interfered to prevent the burial of strangers here; on the contrary, he has buried all who have been brought, but he claims the whole burial fee." (This was the parish of Hendon, in Middlesex.)

A very eminent civilian (the late Dr. Harris) gave the following opinion when consulted upon this subject:"I apprehend the churchyard of a parish belongs in different ways both to the minister and the churchwardens; for I take the soil or surface to belong in general to the minister, and the interior part to the parishioners for burial; and consequently I think that no foreigner or outdweller ought to be buried in the churchyard of the parish mentioned in this case (unless when a traveller or accidental comer happens to die there), without the consent both of the minister and the churchwardens. Neither do I apprehend that the friend or representative of any parishioner can have a right to claim, on the part of the deceased, more ground than may be sufficient for his burial, for the usual and ordinary allowance; and that if a larger portion of ground should be expected, an application ought to be made to the minister and the churchwardens; and that if a vault should be wanted by the friends of a deceased When a faculty person, whether foreigner or parishioner, an application ought to be made to the Bishop's Court for a faculty, to be obtained. which is never granted without decreeing and causing public notice to be given to the parishioners of what is intended to be done. I need not now add, that the Rev. Mr. L. has acted unwarrantably if he persuaded Mr. F. that no other authority than that of the minister was necessary. The process, however, should be taken out against Mr. F. (the stranger who erected the vault) if it is the wish of the churchwardens, either to oblige him to reinstate the churchyard, or to apply for a faculty to confirm what has been done; and the method of proceeding

is necessary,

and how it is

(b) 6 Taunt. 277.

should, I apprehend, be by articles, charging him with having removed the remains of deceased persons, and having dug and bricked a vault of such and such dimensions, without a faculty, &c. As to the neglect of reading prayers on parliamentary holidays and other days according to the custom of the church, the proceedings should be by articles, and the rector may also be articled against at the same time, for having given leave to make vaults in the churchyard, and having assumed the power and office of the ordinary, by assuring the persons who applied to him, that no other authority than his own was requisite. "GEO. HARRIS.

Doctors Commons, 13th Jan. 1780.”

So in one of the MS. opinions of the senior Dr. Swabey: "Though the clergyman only has the right of permitting a burial in the church, yet the churchwardens may have a fee for repairing the pavement. The clergyman cannot refuse to bury anybody dying in the parish, which is of right the proper cemetery for their reception, though he may claim his ordinary fee." 1805.

But where a parishioner dies in his journey, or other- Parishioner wise, out of the parish, perhaps it may be otherwise: as it dying out of seems to be, where there is a family vault or burying place in the church, or chancel, or aisle thereof (c).

parish.

SECT. 2.-The Acts for Cemeteries and Burial Grounds.

By 10 & 11 Vict. c. 65, which is entitled " An Act for consolidating in one Act certain Provisions usually contained in Acts authorizing the making of Cemeteries," the following provisions are made as to burials of members of the church in such cemeteries.

Sect. 23. "The bishop of the diocese in which the ceme- A part of tery is situated may, on the application of the company, cemetery to be set apart and consecrate any portion of the cemetery set apart for the consecrated for burial of the dead according to the rites of the established burial of memchurch, if he be satisfied with the title of the company to such portion, and thinks fit to consecrate such portion; church.

(c) And it was holden by Dr. Lushington that a clergyman will be punished for refusing to perform divine service over the body of a member of a family which is deposited in a private

family vault; even though the
member, being a married woman,
has ceased to be a parishioner.
Nevill v. Baker, Arches Court,
Nov. 22, 1862.

bers of established

Consecrated ground to be defined.

A chapel in connexion

with the esta

and the part which is so consecrated shall be used only for burials according to the rites of the established church."

Sect. 24. "The company shall define by suitable marks the consecrated and unconsecrated portions of the cemetery."

Sect. 25. "The company shall build, within the consecrated part of the cemetery, and according to a plan apblished church proved of by the bishop of the diocese, a chapel for the performance of the burial service according to the rites of the established church."

to be constructed.

Bodies when

interred not to without lawful

be removed

authority.

Burials in the consecrated portion to be registered by

Sect. 26. "No body buried in the consecrated part of the cemetery shall be removed from its place of burial without the like authority as is by law required for the removal of any body buried in the churchyard belonging to a parish church.'

By sect. 27-31, the company have power to appoint chaplains (c).

Sect. 32. All burials in the consecrated part of the cemetery shall be registered in register books to be provided by the company, and kept for that purpose by the chaplain. the chaplain, according to the laws in force by which registers are required to be kept by the rectors, vicars, or curates of parishes or ecclesiastical districts in England; and such register books, or copies or extracts therefrom, shall be received in all courts in evidence of such burials; and copies or transcripts thereof shall be from time to time sent to the registrar of the ecclesiastical court of the bishop of the diocese in which the cemetery is situated, to be kept with the copies of the other register books of the parishes within his diocese."

Registers to be

subject to the regulations of 6 & 7 Will. 4,

c. 86, as to searches, &c.

Bishop to

Sect. 33. "The said register books, so far as respects searches to be made therein, and copies and extracts to be taken therefrom, shall be subject to the same regulations as are provided by 6 & 7 Will. 4, c. 86, so far as such regulations relate to register books of burials kept by any rector, vicar, or curate.

By sect. 34 the company may appoint and remove a clerk. Sect. 51. "The bishop of the diocese in which the have power to cemetery is situated, and all persons acting under his authority, shall have the same right and power to object to the placing, and to and procure the removal of any monumental inscription within the consecrated part of the cemetery as he by law has to object to or procure the removal of any monumental inscription in any church or chapel of the established church, or the burial ground

object to monumental inscriptions in consecrated part of cemetery.

(c) Vide supra, pp. 618, 619.

belonging to such church or chapel or any other consecrated ground" (d).

By 15 & 16 Vict. c. 85, provision is made for closing burial grounds in the metropolis in certain cases, as follows:

tary of state,

order discon

Sect. 2. "In case it appear to the Queen in council, On representaupon the representation of one of the secretaries of state, that tion of secrefor the protection of the public health burials in any part or her Majesty in parts of the metropolis, or in any burial grounds or places council may of burial in the metropolis, should be wholly discontinued, tinuance of or should be discontinued subject to any exception or burials in any qualification, it shall be lawful for her Majesty, by and part of the with the advice of her privy council, to order that, after a metropolis. time mentioned in the order, burials in such part or parts of the metropolis or in such burial grounds or places of burial shall be discontinued wholly, or subject to any exceptions or qualifications mentioned in such order, and so from time to time as circumstances may require; provided that notice of such representation, and of the time when it shall please her Majesty to order the same to be taken into consideration by the privy council, shall be published in the London Gazette, and shall be affixed on the doors of the churches or chapels of the parishes in which any burial grounds or places of burial affected by such representation shall be situate, or on some other conspicuous places within the part or parts of the metropolis affected by such representation, one calendar month, or where any order made under The Nuisances Removal and Diseases Prevention Act, 1848' (e), directing the provisions of that act for the prevention of epidemic, endemic, and contagious diseases to be put in force, is in force within such part or parts, then seven days at the least before such representation is so considered: provided always, that no such representation shall be made in relation to the burial ground of any parish until ten days' previous notice of the intention to make such representation shall have been given to the incumbent and the vestry clerk of such parish."

council for

Sect. 4. "It shall not be lawful, after the time men- Burial not to tioned in any such order in council for the discontinuance take place of burials, to bury the dead in any church, chapel, church- after order in yard, or burial place, or elsewhere, within the part or parts discontinuof the metropolis or in the burial grounds or places of ance. burial (as the case may be) in which burials have by any such order been ordered to be discontinued, except as in this act or in such order excepted; and every person who

(d) So 15 & 16 Vict. c. 85, s. 38.

(e) 11 & 12 Vict. c. 123.

Restriction as to place of burial of inhabitants of parishes the

whereof are

closed.

shall, after such time as aforesaid, bury any body, or in anywise act or assist in the burial of any body, contrary to this enactment, shall be guilty of a misdemeanor."

Sect. 5. "After the time from which burials in any place of burial of any parish are required under this act to be discontinued, the body of any parishioner or inhabitant of such parish shall not be buried in any burial ground burial grounds within the metropolis belonging to any other parish within the metropolis, save where the body of any of the family or relatives of such parishioner or inhabitant has been interred in such burial ground, and the relatives or other persons having the care and direction of the funeral signify a desire that on that account the body of such parishioner or inhabitant should be there interred (such burial ground not being a burial ground in which burials have been ordered to be discontinued under this act), and save as herein otherwise provided; and every person having the care or control of any burial ground who knowingly authorizes or permits any burial therein contrary to this enactment shall be guilty of a misdemeanor."

Saving of certain rights to bury in vaults, &c.

Saving as to

Sect. 6. "Notwithstanding any such order in council, where by virtue of any faculty legally granted, or by usage or otherwise, there is at the time of the passing of this act any right of interment in or under any church or chapel affected by such order, or in any vault of any such church or chapel, or of any churchyard or burial ground affected by such order, and where any exclusive right of interment in any such burial ground has been purchased or acquired before the passing of this act, it shall be lawful for one of the secretaries of state from time to time, on application being made to him, and on being satisfied that the exercise of such right will not be injurious to health, to grant licence for the exercise of such right during such time and subject to such conditions and restrictions as such secretary of state may think fit, but such licence shall not prejudice or in anywise affect the authority of the ordinary or of any other person who, if this act had not been passed, might have prohibited or controlled interment under such right, nor dispense with any consent which would have been required, nor otherwise give to such right any greater force or effect than the same would have had if this act had not been passed."

Sect. 8. "Nothing in this act contained shall extend to St. Paul's Ca- prevent_the_interment in the cathedral church of St. Paul's, London, or in the collegiate church of St. Peter's, Westminster, of the body of any person where her Ma

thedral and Westminster Abbey.