I

does not dispense with the necessity for such a licence to legalise exhumation, or with any statutory restrictions upon the disinterment of the dead (R. v. Tristram (No. 2), [1899] 80 L. T. 414). Faculties for disinterment have been granted, upon letters of request from the President of the Probate Division addressed to the Ecclesiastical Court, requesting it in aid of justice, as supplying material evidence on issues raised in a pending probate action, to allow the exhumation and inspection of the body of the testator, buried thirty-four years before. The Ecclesiastical Court, however, cannot enforce such a faculty by making an order upon the custodians of the consecrated ground where the body lies to comply with it, as a faculty is only permissive (Druce v. Young, [1899] P. 84, 108, 109n.).

Exhumation without the licence of a Secretary of State is an indictable misdemeanor (R. v. Kenyon, 1901; Arch. Cr. Pl., 23rd ed., p. 1208, and see R. v. Sharpe, 1857, 26 L. J. M. C. 47).

Place of Burial.-As already stated, the usual place for interment was the parish churchyard or other consecrated ground, and the obligation of the clergy to officiate is limited to burials in consecrated ground. But interment in other places and by rites other than those of the Church of England has long been lawful. Certain religious bodies, eg. the Quakers, and Jews, and Roman Catholics, established their own burial-grounds. With the progress of time the older churchyards and burial-grounds became over full to the danger of public health, and in towns could not readily be extended by purchase of adjacent land. Under these circumstances it has become necessary to provide by statute for the creation of burial-grounds or cemeteries by private enterprise or by public authorities.

The statute law as to cemeteries, etc., is complex and greatly needs consolidation. The Acts are numerous, the later amending and partially repealing prior enactments, and they have been greatly modified by changes in the system of local government. They fall into two groups: (1) the Cemeteries Clauses Act, 1847, 10 & 11 Vict. c. 65, intended to regulate the conditions under which parliamentary powers should thereafter be given to individuals or companies for the establishment of cemeteries as matters of business; the whole or part of which has been incorporated in many special Acts; (2) the Burial Acts, 1852 to 1900,1 intended to provide for burial where the parish churchyard or other burial-places have become insufficient. Many of the clauses in these Acts are similar in wording to those of the Cemeteries Act, but they are seldom identical; (3) the Public Health Interments Act, 1879, as amended by the Burial Acts, 1900.

The chief objects of the Burial Acts and the Act of 1879 are-(a) to give the State large powers to control places of burial; (b) to provide for the closing of burial-grounds which are crowded or situate in unsuitable places; (c) to create public bodies responsible for the provision and proper management of burial grounds sufficient for the needs of their districts.

(a) The Department of State responsible for places in use for burial,

1 They are fourteen in number: 1852, 15 & 16 Vict. c. 85; 1853, 16 & 17 Vict. c. 134; 1854, 17 & 18 Vict. c. 87; 1855, 18 & 19 Vict. c. 178; 1857, 20 & 21 Vict. cc. 35, 81; 1859, 22 Vict. c. 1; 1860, 23 & 24 Vict. c. 64; 1862, 25 & 26 Vict. c. 100; 1871, 34 & 35 Vict. c. 33; 1880, 42 & 43 Vict. c. 41; 1881, 44 & 45 Vict. c. 2; 1885, 48 & 49 Vict. c. 21; and 1900, 63 & 64 Vict. c. 15. It is said that over 120 statutes touch upon the question of burial.-Brooke Little on Burials, 3rd ed., pref.

and for securing new places of burial, is the Local Government Board, which, under the Act of 1900 (secs. 4, 6), has taken over the powers and duties of the Home Office with respect to the following matters:Discontinuance of burials in existing burial-grounds, saving by leave, existing rights of interment and opening of new burial-grounds, and regulation of burial-grounds provided under the Acts (1852 and 1853 Acts); provision of new burial-grounds, fixing of fees, and inspection of burial-grounds, and allowing unused unconsecrated ground belonging to a burial board to be let (1851 Act); appointment of burial boards for parishes, united or divided for ecclesiastical purposes, one or more of which have separate burial-grounds of their own (1855, 1857, 1860 and 1871 Acts); regulating burials in common graves in cemeteries established by local Acts, issuing and enforcing Orders in Council to prevent vaults or places of burial becoming dangerous to health, and allowing unused unconsecrated burial-grounds vested in trustees or burial authorities to be let or sold (1857, 1859 and 1900 Acts).

The Secretary of State (Home Office) is still the authority to license exhumation (1857, s. 25), and to deal with controversies as to the consecration of burial-grounds or the building of chapels therein, and as to the fees or compensation of ministers of religion, etc. (1900, s. 5).

(b) The closing of burial-grounds and the discontinuance of burials in churches and chapels is effected by Order in Council (1852, s. 2, 1853, s. 1), as are the direction of measures to prevent vaults or burialplaces from becoming dangerous or injurious to health (1857, s. 23), and the appointment of town councils as burial boards (1854, ss. 1, 2).

The Privy Council may order burials to cease wholly or partially in any existing burial-ground, and may prohibit the opening of a new burial-ground, without the approval of the Home Secretary, within any named limits (1853, s. 1; 1900, s. 4). Burial-grounds belonging to Quakers, Jews, or non-parochial grounds which are private property are not affected, unless expressly named in the order (ibid. s. 2; see also 30 & 31 Vict. c. 133, s. 9).

The very numerous orders closing burial-grounds are gazetted, and information as to the burial-grounds dealt with is given in the Index to the Statutory Rules and Orders (ed. 1904), p. 67, and in the subsequent annual volumes of Statutory Rules and Orders. As to the restrictions on building on closed or disused burial-grounds, see OPEN SPACES.

With regard to consecrated burial-grounds, the Ecclesiastical Courts have held that by faculty part of a churchyard, if disused or closed, can be devoted to secular purposes, such as widening a public street or making flights of steps and entrances to business premises (St. Bene Sherehog and St. Nicholas Acons, [1893] P. 66n.; St. Nicholas Cole Abbey, [1893] P. 58; St. Botolph's Case, [1892] P. 161 (all London); St. Nicholas, Leicester, v. Langton (Peterborough), [1899] P. 19, 31; Hove St. Andrews (Chichester), [1895] P. 228n.; In re Bideford Parish, [1900] P. 314 (Arches Court), where Sir Arthur Charles pointed out that the statements in Campbell v. Paddington and R. v. Twiss are only dicta; as opposed to Plumstead Burial-Ground Case (Rochester), 1895, P. 225 (unused ground)). As to the power to allow building, or "enlarging a church, chapel, meeting-house, or other place of worship," under sec. 3 of the Disused Burial-Grounds Act, 1884, on a disused churchyard, see St. Botolph's, Aldersgate Without, [1900] P. 69; St. James the Less, Bethnal Green, [1899] P. 55; Holy Trinity, Stepney, 1902, 18 T. L. R. 789. As

to the meaning of "disused burial-ground," see Eccles. Comm. v. New City of London Brew. Co., [1895] 1 Ch. 702; A.-G. v. Trustees of London Parochial Charities, [1896] 1 Ch. 541; Re Ponsford and Newport District School Board, 1894, 1 Ch. 454; In re Bosworth and Gravesend Corporation, [1905] 2 K. B. 426; and London County Council v. Dundas, [1904] P. 1. The fact of a disused churchyard in the Metropolis being an "open space" does not prevent the authority which has control over it from preventing adjoining owners from acquiring rights of light, etc., over the space (Paddington Borough Council v. Attorney-General, 1906, A. C. 1).

To bury in a closed burial-ground is a punishable offence (1853, s. 6; 1855, s. 2; 1900, s. 4).

Burial Authorities.-The burial authorities existing under the Burials Acts and the Act of 1879 include (i.) burial boards; (ii.) councils, committees, or other authorities having the powers and duties of a burial board; (iii.) local authorities which maintain a cemetery under the Act of 1879, or under any local Act (1888, s. 11).

The first Burial Act of 1852 (15 & 16 Vict. c. 85) applied only to London, but it was extended in 1853 to all parishes in England (16 & 17 Vict. c. 134). The scheme of the Acts, which are "adoptive," is to provide for the appointment of burial boards (1) for any separate parish, township, or district (1852, s. 10; 1855, s. 12; 1857, c. 81, s. 5); or (2) for two or more places united for ecclesiastical purposes, none of which separately maintains its own poor, or has a separate burial-ground (1855, c. 128, s. 11; 1857, c. 81, s. 9); or (3) with the sanction of the Local Government Board for parishes united or divided for ecclesiastical purposes, although there is already a separate burial-ground for one or more of such parishes or divisions (1855, s. 11; 1857, c. 81, s. 9; 1860, s. 4). Parishes may agree to form a joint burial board (1852, s. 23). The machinery for the adoption of the Acts originally involved a meeting and resolution of the vestry of each parish concerned. In a rural parish the question of adopting the Burial Acts is now determined by the parish meeting, and no longer by the Vestry Local Government Act, 1894, s. 5 (1), (3). The procedure for adoption is regulated by directions of December 1895.

Where the Acts were in force in a rural parish when the Local Government Act of 1894 came into operation, the powers, duties, and liabilities of a burial board acting for the whole parish passed to the parish council (s. 7), and the powers may be exercised by a committee appointed by that council, including persons not members of the council (s. 53 (1)). In parishes having no council a board must be elected, unless the county council allows the meeting to act as the board (s. 19, subs. 10).

Where the Acts were in force only in part of a rural parish, the County Burial Board or the parish meeting may transfer the powers, duties, etc., of such board to the parish council: the county council, on the application of a parish council, may alter the boundaries of burial boards existing on the day when the Local Government Act, 1890, came into operation.

In urban districts, a term which includes the district of a municipal borough, the council of the district may resolve to take over the powers, duties and liabilities of any burial board existing for the whole or part of the district: and the Burial Acts cannot be adopted for such districts without the approval of the Council (1894, s. 62). Where an

urban council takes over a burial board under this section, the expenses of maintaining the burial-ground are payable out of the poor-rate, and not out of the general district rate (R. v. Connah's Quay Overseers, [1901] 2 K. B. 174).

Vestry meetings can still be held for the adoption of the Burial Acts for any poor law parish or ecclesiastical parish within an urban district in accordance with directions issued by the Home Office in December 1895.

Besides these provisions, (a) the town council in a municipal borough, in which all or any of the burial-grounds have been closed by Order in Council, may on petition be constituted the burial board (17 & 18 Vict. c. 87):

(b) Urban district councils which were formerly local boards of health, acting as or created boards under a local Act, have all the powers of a burial board (18 & 19 Vict. c. 128, s. 20): and

(c) The district councils in other urban districts in which any burial-ground has been closed by Order in Council, and for which no burial board has been appointed, may on petition be constituted the burial board for the district by Order in Council (20 & 21 Vict. c. 81, s. 4).

Under the Public Health (Interments) Act, 1879 (as amended by the Act of 1900, s. 9), a town council, an urban district council, and a rural district council have power to provide cemeteries for the burial of the dead, as well as mortuaries for their reception, and the Local Government Board can require them to take this course.

In the county of London all burial boards have ceased to exist, and their powers, duties, and liabilities have passed to the Metropolitan borough council for the borough for the whole or part of which they acted. The necessary adjustments consequent on changes of area were made by Order in Council under the London Government Act, 1899, 62 & 63 Vict. c. 14, s. 4; and see St. R. & O. (ed. 1904), vol. viii. tit. "London County," p. 28.

The Act of 1852 provides for the numbers and meetings of the burial boards and the appointment of their officers, auditors, etc.

The

It is the duty of the burial authority (when established under the Burial Acts) to provide a cemetery for the parish or parishes for which it is appointed to act, either within or without the limits of the parish (1852, s. 25). For this purpose it may purchase land (but not compulsorily) (ibid. s. 29), and may acquire an existing cemetery (ibid. s. 26; Ward v. Mayor, etc., of Portsmouth, 1898, 2 Ch. 191), or a burial-ground provided under the Church Building Acts (1857, c. 81, s. 7). cemetery so provided is to be divided into two parts-one part to be consecrated according to the rites of the Church of England, and one to be left unconsecrated (1853, s. 7). The authority may also provide a mortuary for the reception of bodies before interment (1852, s. 42) (see MORTUARY). The expenses are chargeable on the poor-rate of the parish or parishes for which the cemetery is provided (s. 19), but the authority is empowered to charge fees (1855, s. 27); any surplus income, after defraying all proper outgoings, is to be applied in relief of the poor-rate (1852, s. 22).

The sexton of a parish has a right to enter a burial-ground, and perform his duties, without the sanction of the burial board, and to toll the bell in the chapel at burial, as part of the burial rites of the Church of England (Burial Board of St. Margaret's, Rochester, v. Thompson, 1871, L. R. 6 C. P. 445).

By the Act of 1900 the consecration of part of the burial-ground is provided for (s. 1). The burial authority is not obliged to build a chapel either for the consecrated or unconsecrated portions, but may do so for either; and must do so for any denomination which requests it to provide a chapel for funeral services according to the rites of that denomination on the ground appropriated to their use, and which tenders or secures the reasonable cost (s. 2). Every burial authority must submit to the Secretary of State a table of fees to be received for services rendered by ministers of religion or sextons, and no other fees can be recovered by incumbents or clerks in burial-grounds belonging to a burial authority, saving existing rights for not more than fifteen years (s. 3). See Williams v. Briton Ferry Burial Board, [1905] 2 K. B. 465. In Young v. Joint Burials Committee for Parishes of Kingston-on-Thames, Surbiton, etc., [1906] 1 K. B. 338, the incumbent of the parish failed to recover fees for the erection of monuments on land acquired before the commencement of the Act but not used for burials till after that date. The Secretary of State may order inquiries into any of these matters. The obligation of incumbents to perform funeral services for their parishioners in burial-grounds provided under the Burial Acts is extended to burial-grounds provided under the Public Health (Interments) Act, 1879.

The length of notice of intention to bury in a burial-ground maintained by a burial authority is no longer fixed at forty-eight hours, as in the Act of 1880, but at such time and to such person as the burial authority may direct (Burial Act, 1900, s. 8).

No new burial-ground not "already" in 1855 used as or appropriated for a cemetery, may be used for burial within the distance of 100 yards from any dwelling-house, measured from the walls of the dwelling-house (Wright v. Wallasey L. B., 1887, 18 Q. B. D. 783), except with the written consent of the owner, lessee, or occupier of such house (1855, s. 9). These words do not prohibit the appropriation for a cemetery of ground within the prescribed distance from a house, but only the use for burial of such part as may be within it (Lord Cowley v. Byas, 1877, 5 Ch. D. 944). In many instances, however, houses have, after the construction of a cemetery, been built close to it; and in such cases the burial authority may be restrained by injunction from permitting burials within 100 yards of such houses (Godder v. Hythe Burial Board, [1906] 2 Ch. 270).

Burial-Ground, Offences in.-1. It is felony to steal, or to rip, cut, sever, or break with intent to steal anything made of metal fixed in any burial-ground. The punishment on conviction is penal servitude from three to five years, or imprisonment with or without hard labour for not over two years. The offender may, if a male under sixteen, also be whipped (R. v. Jones, Dears. & B. C. C. 555; 2 Russ. on Crimes, 6th ed., 225); or the Court may, instead of imposing any of these punishments, bind the offender over to keep the peace and be of good behaviour (24 & 25 Vict. c. 96, ss. 4, 31, 117; 54 & 55 Vict. c. 69, s. 1). It is also a misdemeanor unlawfully and maliciously to destroy or damage any statue, monument, or other memorial of the dead, or other ornament or work of art in a churchyard or burial-ground. The offender may be sentenced to imprisonment with or without hard labour for six months, and, if a male under sixteen, may be whipped (24 & 25 Vict. c. 97, s. 39). These offences are triable at Quarter Sessions (5 & 6 Vict. c. 38, s. 1).

2. Under sec. 7 of the Burials Act, 1880, 43 & 44 Vict. c. 41 (Osborne