cient drainage or obstruction of inspection (ss. 13, 14). Part of Lands Clauses Act incorporated (a) (s. 15). Recovery of penalties (16). Act not to extend to Scotland (s. 17).

BURIAL GROUNDS.

PUBLIC HEALTH AND LOCAL GOVERNMENT ACTS. For the regulation of Interments in Districts to which the Public Health and Local Government Acts are applied, Local Boards of Health may provide reception houses for the dead, and make Bye-laws with respect to the management of the same, and, on application, make arrangements for the interment of any corpse received therein (11 & 12 Vict. c. 63, s. 81). Interment in any Burial Ground within the District of any Local Board, if dangerous to health, may be prohibited under penalty of 207. (s. 82); and no interment is to take place under any new place of worship in any district to which the Public Health Act has been applied, nor any new Burial Ground not previously authorised by Parliament formed therein, without the consent of the General Board, under penalty of 50%., recoverable by any person in an action of debt (s. 83). But these provisions are practically superseded by the 18 & 19 Vict. c. 128, s. 20, so far as relates to the Local Boards therein mentioned; and the consent of the Secretary of State is now substituted in all cases in which the consent of the General Board was required (24 & 25 Vict. c. 61, s. 14). The Act 21 & 22 Vict. c. 98, s. 49, contains certain provisions purporting to allow a Local Board to act as a Burial Board for part of its District; but the section is practically inoperative. Such Local Board may, however, be constituted the Burial Board within. its District by Order in Council (20 & 21 Vict. c. 81, s. 4). All Local Boards of Health, constituted Burial Boards, may from time to time repair and uphold the fences surrounding any Burial Ground which shall have been discontinued as such within their jurisdiction, or take down such fences and (a) See note, p. 118.

substitute others in lieu thereof (a), and are, from time tʊ time, to take the necessary steps for preventing the desecration of such Burial Grounds, and placing them in a proper sanitary condition; and where such Burial Boards are Local Boards of Health they may from time to time pass Bye-laws for the preservation and regulation of all Burial Grounds within their limits (6), and the expense of carrying this section into execution is to be defrayed out of any rates authorised to be levied

(a) By the 59 Geo. 3, c. 134, s. 39, the Church Building Commissioners may, with consent of two Justices, and on notice given according to 55 Geo. 3, c. 68, alter, repair, pull down and rebuild the walls or fences of any existing burial ground of any parish or chapelry; and may also stop up and discontinue, alter or vary, any entrance or gate leading into any burial ground, and the paths, footways and passages into, through, or over the same, as to them may appear useless, or as they shall think fit.

(b) Any nuisance in the churchyard is properly of ecclesiastical cognizance (Quilter v. Newton, Carth. 152). By the Common Law the parishioners are bound to repair the fence of the churchyard at their own charge (Lind. 253; 2 Inst. 489). By prescription the vicar may be liable to repair the fence, and an indictment will lie for a misdemeanour if any damage be occasioned by neglect (R. v. Reynell, 6 East, 315). If owners of adjoining lands have been used to repair, such is a good custom, and proceedings may be had at Common Law for neglect. By Canon 85, the church wardens are to see to the repair, &c., of the churchyard in manner as accustomed, at the charge of the proper parties. The incumbent may bring his action for any trespass in the churchyard (Bro. Abr. Trespass, 210); so also may his lessee (2 Rol. Abr. 337). Trespass lies for the erector of a tombstone against a person who wrongfully removes it; although the freehold of the churchyard is in the parson, even he has no right to remove the tombstones, the property of which remains in the persons who erected them (Spooner v. Brewster, 3 Bing. 136; Bryan v. Whistler, 8 B. & C. 288). Monuments or buildings of height cannot legally be erected without a faculty from the ordinary (Seager v. Bowle, 1 Add. 541; Bardin v. Calcott, 1 Hagg. Consis. 14). A bequest to churchwardens for keeping certain tombs in repair is void (Rickard v. Robson, 8 Jur. N. S. 665). The Ecclesiastical Court cannot allow any portion of consecrated ground to be converted to secular uses, nor grant a faculty to confirm such appropriation (Harper v. Forbes, 5 Jur. N. S. 275; Rector of Wallbrook v. Parishioners, 2 Robert. 515; Walter v. Montague, 1 Curt. 253); and the Court will compel the restoration of any portion of such ground which has been improperly removed (Jarret v. Steel, 3 Phillim. 167; Knapp v. Parishioners of Willesden, 2 Robert. 364; Campbell v. Parishioners of Paddington, Id. 588); but the Court will grant a faculty for the erection of schools in a churchyard in certain cases (The Rector of St. George v. Stewart, 2 Str. 1126), and especially if the ground be closed under the Burial Acts (Russell v. Parish of St. Botolph, 5 Jur. N. S. 300).

by any Local Board constituted a Burial Board (24 & 25 Vict. c. 61, s. 21).

THE BURIAL ACTS (a).

Under the general Statutes for the regulation of Burial Grounds, it is provided as follows:

As to Old Burial Grounds.-Her Majesty, in Council, on

(a) The whole of the Burial Acts having been printed in a separate work (the "Laws Relating to Burials") by the author, it has not been thought necessary to repeat them in the appendix to this volume.

During the twelve years since the passing of the first Burial Act in 1852, a great sanitary revolution, as regards the burial of the dead, has quietly taken place in this country. Within this period, some four hundred local Burial Boards have been constituted, and there is scarcely a market town of any consequence which has not already provided, or is now engaged in providing, adequate means for the decent interment of its dead beyond the dwellings of the living. During these twelve years, also, about five hundred Orders in Council have been issued, by which near four thousand old burial grounds, belonging to religious professors of all denominations, have been either closed or placed under regulation. Perhaps the majority of these consisted of mere scraps of ground wedged in, as it were, between densely inhabited districts; each church or chapel being surrounded with its own precinct of corruption. In the new cemeteries, which are commodious and well drained, sufficient space is provided for all sects and all ranks, uniting thus, after the petty contentions and distinctions of life are over, "all sorts and conditions of men" into one common fold. Not surcharged burial grounds alone, but the use of vaults under places of worship, have been discontinued under these Acts. Accordingly, in the Metropolis only, nearly one hundred church vaults--each, for the most part, occupying the entire space beneath the building-have been thoroughly disinfected and permanently built up. An interesting illustration of the cordial manner with which this great social reform has been received by the ratepayers of England, is afforded by the fact that a sum exceeding 1,400,000l. has been already raised for the provision of the parochial cemeteries in question.

The interment of the dead beneath and around churches has been called a "distinctive feature of Christian burial;" but the persons who make this assertion forget that burial in the time of Christ was extramural. The Widow of Nain was following her son out of the city. Lazarus was interred in a cave beyond Bethany. The demoniac at Gadara, dwelling among the tombs near the coast, met Jesus as he approached towards the town; and the Holy Sepulchre was in a garden outside Jerusalem. So far from condemning this custom, our Saviour, in one of his strongest figures, would seem to indicate an approval of it: the hypocritical Pharisees were compared to "whited sepulchres-full of dead men's bones and all uncleanness." The truth is, that we owe the introduction of "Church burial" to the superstitious observances of the dark ages.

the representation of the Secretary of State (a) (certain forms having been complied with), may Order the discontinuance of burials in any Burial Ground in England and Wales (16 & 17 Vict. c. 134, s. 1), or for preventing vaults or places of burial from becoming dangerous to the public health (b) (20 & 21 Vict. c. 81, s. 23; 22 Vict. c. 1, s. 1) (c). Such Order cannot prevent burial in any Cemeteries that may have been established under the special authority of Parliament (d) (16 & 17 Vict. c. 134, s. 5), but may establish regulations in respect of all burials in common graves in such

(a) All complaints, or applications for the closing of existing burial grounds, for extension of time, for the alteration of Orders in Council or regulations, should be addressed to the Secretary of State, Home Office, Whitehall.

(b) In vault burial the separate entombment of coffins with the use of charcoal is frequently resorted to, thus preventiug the escape of offensive effluvia on re-opening the vault for future interment. A kind of charcoal well adapted for this purpose, which is made from saw-dust, and, therefore, sufficiently powdered for use, is produced in some chemical manufactories at a moderate price.

(c) An Order of her Majesty in Council, by virtue of this section, will, it is presumed, justify all acts done under it, including the removal of bodies interred without a faculty or any other authority.

(d) In R. v. Manchester (Justices) it appeared that St. George's Church, Hulme, in Manchester, with a churchyard adjoining, was established and provided under the Church Building Acts, and under stat. 13 & 14 Vict. c. 41, it was constituted a parish and rectory. By an Order in Council, under the 16 & 17 Vict. c. 134, it was ordered inter alia, that after 1st June, 1855, no more than one body should be buried in any grave in St. George's Churchyard, Hulme, in Manchester. The rector disputed the validity of this order, and assisted at the burial of two bodies in one grave after the time specified. The rector maintained that, as his rectory was not an ancient parish with a churchyard established at Common Law, the churchyard there is within the letter of the exception in sect. 5 of the 16 & 17 Vict. c. 134. Lord Campbell, C. J. "The question very properly submitted to us in this case, turns upon the validity of the Order in Council, dated 21st May, 1855; and this depends entirely upon whether this churchyard comes within the exception contained in the statute as being a cemetery established under the authority of any Act of Parliament.' In one sense, the churchyard was established under the authority of an Act of Parliament. But we do not think that this construction is to be put upon the words as used in the exceptive clause. We attach little weight to the argument that the word 'cemetery ' only is to be found in the exception relied upon, without the words 'burial ground' being added, as the word 'cemetery,' both in its original meaning

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Cemeteries (20 & 21 Vict. c. 81, s. 10). Any Order in Council may be amended or repealed by any subsequent order (18 & 19 Vict. c. 128, s. 1). Any person assisting at any burial in violation of such Order is guilty of a misdemeanour (16 & 17 Vict. c. 134, s. 3), and liable to a penalty of 101. (a)

and as commonly used, is quite sufficient to comprehend all Christian burial grounds. Looking, however, to the object of the legislature and the enactments of the statute 15 and 16 Vict. c. 85, a statute in pari materiâ, we do not think that, when the laws concerning the burial of the dead which had been enacted for the Metropolis were to be extended to the rest of England, there was any intention to prevent the Queen in Council and the Secretary of State from making orders respecting the cemeteries attached to district churches beyond the limits of the Metropolis. Section 7 of statute 15 & 16 Vict. c. 85, excepts from the provisions of that Act cemeteries mentioned in the Schedule (B). This schedule does not contain any of the Church Building Acts, and is confined to Acts for establishing cemeteries within the Metropolitan District by cemetery companies (during the argument appropriately designated 'commercial cemeteries'), leaving all burying grounds attached to district churches established under the Church Building Acts within the extensive area of the Metropolis, comprehending large portions of the counties of Middlesex, Surrey, and Kent, subject to the Orders of the Queen in Council and the Secretary of State, to be made with a view to the public health. No reason can be assigned why the Queen in Council and the Secretary of State should not have the same power over a district churchyard at Manchester, as over a district churchyard at Bethnal Green. In truth, these churchyards in parochial districts, established under the Church Building Acts (with respect to the purposes and policy of the Interment Acts), are not to be distinguished from churchyards belonging to parishes which have existed from time immemorial. We therefore think, that a more limited construction ought to be put upon the words any cemetry established under the authority of any Act of Parlia ment' than was contended for in the argument. The exception seems to contemplate only cemeteries established by authority of a special Act, such as those enumerated in Schedule (B) to statute 15 & 16 Vict. c. 85, as Kensal Green, and other commercial cemeteries.' Ccnsequently the Order is valid " (5 Ell. & Bl. 702; 2 Jur. N. S. 182; 25 L. J. M. C. 45).

(a) The term "misdemeanour" is applied to offences for which no particular name has been provided by law, and may be punished by fine and imprison. ment. Any crime less than a felony is called a misdemeanour. It is presumed, that though there may be a choice of punishments, both would not be enforced. As to recovery of this latter penalty, see note, p. 55.

The 58 Geo. 3, c. 45, s. 80, imposes a penalty of 50l. on any person ordering or causing the making of any grave (vaults of a certain description excepted) within twenty feet of the external walls of any church erected under the provisions of that Act. This penalty is recoverable before any two Justices, by distress and sale, one-half to be paid to the informer, and the other to the use of the poor.