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Majesty in

council may

order discontinuance of

part of the

metropolis.

any part or parts of the Metropolis, or in any burial grounds or places of burial in the Metropolis, should be wholly discontinued, or should be discontinued subject to any exception or qualificaburials in any tion, it shall be lawful for her Majesty, by and with the advice of her Privy Council, to order that, after a 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. . . . 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" (f).

Burial not to take place after order in council for discontinu

ance.

Restriction as to place

of burial of

any

Sect. 4. "It shall not be lawful, after the time mentioned in such order in council for the discontinuance of burials, to bury the dead in any church, chapel, churchyard, or burial place, or elsewhere, within the part or parts of the Metropolis or in the burial grounds or places of 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 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" (g). Sect. 5. "After the time from which burials in any place of burial of any parish are required under this act to be disconinhabitants of tinued, the body of any parishioner or inhabitant of such parish shall not be buried in any burial ground 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

parishes the burial grounds whereof are closed.

(f) See Reg. v. St. Mary, Islington, 25 Q. B. D. p. 523.

(g) This section does not prohibit the burial of cremated ashes under

a church closed for burials by an Order in Council; In re Kem, Čonsistory of London, July 13, 1894.

burial therein contrary to this enactment shall be guilty of a misdemeanor.

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to bury in vaults, &c.

Sect. 6. "Notwithstanding any such order in council, where Saving of by virtue of any faculty legally granted, or by usage or other- certain rights wise, 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 her Majesty's Principal 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."

Cathedral and

Sect. 8. "Nothing in this act contained shall extend to Saving as to prevent the interment in the cathedral church of St. Paul's, St. Paul's London, or in the collegiate church of St. Peter's, Westminster, Westminster of the body of any person where her Majesty, by any writing Abbey. under her Royal Sign Manual, shall signify her pleasure that the body be so interred."

This act was amended and extended to other cities and towns 16 & 17 Vict. by 16 & 17 Vict. c. 134, ss. 1, 3, 4, 5, 6 (h). c. 134.

vices of the

By the original act, 15 & 16 Vict. c. 85, the burial boards 15 & 16 Vict. constituted by it were to have power (by section 30) "to lay out c. 85. and embellish any burial ground provided by such board in such Burial board may lay out manner as may be fitting and proper, and to build on any land to ground and be purchased or appropriated for a burial ground under this act, build chapel and according to a plan to be approved of by the bishop of the for the serdiocese, a chapel for the performance of the burial service accord church. ing to the rites of the United Church of England and Ireland; and such burial ground may be consecrated by the bishop of the diocese, when the same shall appear to him to be in a fit and proper condition, for the purposes of interment according to the rites of the United Church: Provided always, that in providing any burial ground such board shall set apart a portion thereof which shall not be so consecrated as aforesaid, and may build

this does not mean cemeteries estab-
lished under the Church Building
Acts; Reg. v. Justices of Manchester,
5 E. & B. p. 702.

(h) By sect. 5 of 16 & 17 Vict. c. 134, "cemeteries established under the authority of any act of parliament" are excluded from its operation. It has been holden, that

Burial ground

to be the

burial ground of the parish

or parishes for which it is provided.

16 & 17 Vict. c. 134.

Burial board,

building chapel for use

of Church, to build one also for Nonconformists.

thereon a suitable chapel or chapels for the performance of funeral service."

And by section 32, "From and after the consecration as aforesaid of any burial ground provided under this act (except any portion thereof intended not to be so consecrated), or where all or any part of such burial ground, by reason of the same having been already consecrated, shall not require to be consecrated, then from and after such time as the bishop of the diocese shall appoint, such burial ground shall be deemed the burial ground of the parish for which the same is provided; and where the same is provided for two or more parishes such burial ground shall be in law as if such parishes were one parish, and as if such burial ground were the burial ground of such one parish; and every incumbent or minister of the parish or of each of the parishes (as the case may be) for which such burial ground is provided shall, by himself and his curate, or such duly qualified persons as such incumbent or minister may authorize, perform the duties and have the same rights and authorities for the performance of religious service in the burial in such burial ground, or in the consecrated portion thereof, of the remains of parishioners or inhabitants of the parish of which he is such incumbent or minister, and shall be entitled to receive the same fees in respect of such burials which he has previously enjoyed and received; and the clerk and sexton of such parish or of each of such parishes shall (when necessary) perform and exercise the same duties and functions in respect of the burial of the remains of parishioners or inhabitants of the parish of which he is clerk or sexton in such burial ground or the consecrated portion thereof, and shall be entitled to receive the same fees on such burials, as he has previously performed and exercised and received, as if such burial ground were the burial ground of the respective parish of such incumbent or minister, clerk and sexton respectively; and the parishioners or inhabitants of such parish or of each of such parishes shall have the same rights of sepulture in such burial ground as they respectively would have had in the burial ground or burial grounds in and for their respective parish, subject nevertheless to the provisions herein contained" (i).

But according to 16 & 17 Vict. c. 134, s. 7, it is provided, that "In all cases in which any burial board shall provide a new burial ground under the said act of the last session of Parliament or under this act, that new burial ground shall be divided into consecrated and unconsecrated parts in such proportions, and the unconsecrated part thereof shall be allotted in such manner and in such portions as may be sanctioned by one of her Majesty's Principal Secretaries of State; and when any burial board shall by virtue of section 30 of the said act build on any

(i) This section is, so far as it relates to fees, repealed, as to the

city of London, by 20 & 21 Vict. c. 35.

burial ground provided by such board a chapel for the performance of the burial service according to the rites of the church of England, . . . . they shall also build, on the portion of such ground set apart for burials otherwise than according to the rites of the said church, such chapel accommodation for the performance of burial service by persons not being members of the said church as may be approved of by one of her Majesty's Principal Secretaries of State."

deems it

By 18 & 19 Vict. c. 128, s. 14, reciting that, "Doubts have 18 & 19 Vict. arisen whether in all cases in which any burial board shall build in c. 128. any burial ground provided by such board a chapel for the burial Except when Secretary of service according to the rites of the. ... Church of England, State, on resuch burial board is not also bound by law to build a chapel or presentation chapels upon the unconsecrated part of such burial ground for of vestry, the performance of burial service for persons not being members unnecessary. of the said Church:" it is enacted, that "In any such case as aforesaid where it shall appear to one of her Majesty's Principal Secretaries of State, upon the representation of a majority of the vestry of any parish, consisting of not less than three-fourths of the members of the same, that the building of a chapel upon the unconsecrated part of any such burial ground for the use of persons not being members of the said Church is undesirable and unnecessary, it shall be lawful for the Secretary of State, if he shall think fit, to signify his opinion to that effect to the burial board of the parish, and the said burial board shall thereupon be relieved from all obligation to build the same: Provided always, that the Secretary of State shall not signify his opinion as aforesaid, unless it be shown to his satisfaction that notice of the intention to propose to such vestry to make such representation was given in manner required by law for notices of vestry meetings, and of the special purposes thereof."

incumbent.

Referring back to sect. 32 of 15 & 16 Vict. c. 85, it has been Duty of decided that the burial board has no duty to give the incumbent Board to or minister notice, so that he may perform the burial service and earn the fee; but the board must not (except under the conditions admitted by 43 & 44 Vict. c. 41 (k)) knowingly allow service to be performed in the consecrated part of the ground (at any rate over parishioners of any of the parishes for which it is formed) except by or under the permission of the incumbent (1).

any

c. 81.

consecrate

By 20 & 21 Vict. c. 81, s. 6, "Where the guardians of any 20 & 21 Vict. parish or union are or shall hereafter become possessed of land suitable to the purposes of a burial ground, and the Poor Ordinary may Law Board shall consent to the same being appropriated to the land belongreception of the dead bodies of any poor persons whom such ing to a parish guardians shall be authorized or required by law to bury, it shall for burial of be lawful for the ordinary of the diocese wherein such land shall poor persons. be situated, if he see fit, to consecrate the whole or a part of such

(k) Vide infra, sect. 9.

Headingley cum Burley, (1892) 1 Q.

(1) Wood v. Burial Board of B. p. 713.

Transfer of

land for burial purposes, and after consecration the guardians may lawfully direct any such dead body as aforesaid to be buried therein; and the land so consecrated shall not thenceforth be used for any other purposes than for burials according to the rites of the.... Church of England, . . . . and shall be kept in decent order; and the fences thereof, and any building, or other erection therein or adjoining thereto used for the performance of the burial service, shall be maintained in good repair by the guardians out of the common fund of such parish or union: Provided nevertheless, that the guardians shall not be authorized to direct the body of any poor person to be buried in such grounds who, or whose husband, wife, or next of kin, shall, by letter addressed to the master of the workhouse or otherwise, have expressly desired burial to take place elsewhere."

Sect. 7. "Where a burial ground has been provided for any burial ground parish under any of the acts commonly referred to or known as provided under Church the Church Building Acts, and the same has been consecrated, Building Acts and any money expended in providing such burial ground has

to burial

board.

As to separa

been borrowed, on the security of the church rates, it shall be lawful for the incumbent of the parish, with the consent of the ordinary and the burial board of such parish, or of any borough or district in which such parish is wholly or in part comprised, by instrument in writing under the hands and seals of such incumbent and ordinary, and under the seal of the said burial board, to declare that, in consideration of the payment of the debt by the said burial board, or of such sum as shall be mutually agreed upon, with the consent of the persons, signified in writing under their hands, to whom two-thirds of such debt is due, the said burial ground shall be vested in and be under the care and management of such burial board, and thereupon the same shall be vested in and be under the care and management of such board, and shall be subject to the provisions of the herein before recited acts and this act applicable to a consecrated burial ground or the consecrated part of any burial ground provided by any burial board: and any money borrowed as aforesaid and remaining owing, and the interest due and to become due thereon, and all costs and expenses occasioned by the nonpayment thereof, or incurred in providing such burial ground, and then remaining unpaid, shall be charged on and paid out of such rates or fund as under the said last-mentioned acts and this act would be chargeable with the expense of providing a burial ground by such board, and such declaration as aforesaid shall be registered in the registry of the diocese; and such board may, with the approval of the vestry, enlarge such burial ground by the addition of ground to be used for burials otherwise than according to the rites of the church of England, and to be used subject to the provisions of the acts herein recited and of this act in respect to the unconsecrated portions of burial grounds."

Sect. 11. "It shall not be necessary to erect or maintain any

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