the incumbent and churchwardens. The form is as follows: "We declare the piece of land, &c., coloured on this plan to be the burial place of G. H., the giver of the land added to the churchyard of his heirs and assigns" (s. 9). This memorandum operates as an exclusive right in perpetuity in the land which is the real estate of the giver, but it does not give the right to bury the body of any person not entitled to be buried in consecrated ground, and the bishop has the usual power of procuring the removal of any objectionable monumental inscription (s. 10). Such reserved piece of land can only be closed under a separate order in council (s. 11). A right of burial but not a freehold estate may also be granted under the Burial Act, 1852, s. 33, subject to such restrictions as the burial board think proper (a). All existing churchyards are deemed to have been, and all new ones must be, consecrated. This ceremony must be performed by the bishop (b). Additions to churchyards may be consecrated in a less formal way under the above-mentioned Acts of 1867 and 1868. When consecrated it cannot be unconsecrated except by Act of Parliament (c); and, therefore, formerly a faculty could not be obtained to convert a churchyard into a public garden, though the construction of footpaths in it for the convenience of parishioners, the planting of it with trees and flowers, the erection of gates and other minor alterations could be thus authorized (d). But now under the provisions of the Open Spaces Acts, 1877, 1881, 1887 and 1890, which apply to England, Wales, and Ireland, burial grounds may be made available for recreation grounds, provided that no sports or games shall be allowed unless the bishop (as to consecrated ground), or the body from whom the control is acquired (as to unconsecrated ground), shall expressly sanction such use thereof, and then conditions may be specified as to the extent or manner of such use. For these (a) McGough v. Lancaster (1888), 21 Q. B. D. 323; and see Ashby v. Harris (1868), L. R. 3 C. P. 523; Matthews v. Jeffrey (1880), 6 Q. B. D. 290. (b) See PARISH CHURCH. (e) Queen v. Twiss (1869), L. R. 4 Q. B. 412. (d) Re St. George (1876), 1 P. D. 311. purposes any tombstone, or monument, may be removed from a disused burial ground after three months' notice has been given. Such notice must be by advertisements in newspapers, and on the door of the church, to the vestry clerk, and by post to near relatives. In the case of consecrated ground no faculty can be applied for until the expiration of one month after the appearance of the last of such advertisements, and the matter is then left entirely in the bishop's discretion (e). No building can be erected upon a disused burial ground except for the purpose of enlarging a church, chapel, meeting house, or other place of worship, unless a faculty was obtained before 14th August, 1884, or the burial ground had been actually sold under an Act of Parliament prior to that date (f). The ecclesiastical commissioners have power, with the consent of two justices, to alter or stop up paths and entrances in churchyards which may appear to them to be useless (g). Closing. Under the Burial Acts, 1852 to 1871, burials may be discontinued in any part of the metropolis, or in any city or town, or within any other limits, either wholly or subject to qualifications, but in order to close the burial grounds of Jews, Quakers, or private persons, they must be expressly mentioned (); and outside of the metropolis the consent of the Secretary of State must be obtained on each occasion. Private rights of interment (in family vaults, &c.) may be exercised, notwithstanding the order, by leave of the Secretary of State, unless the burial is prejudicial to health (i). The order itself frequently reserves the rights of parishioners (k). The Acts do not extend to certain cemeteries (7), nor to St. Paul's or Westminster Abbey (m). Notice is given in the "London Gazette," and posted on the (e) 50 & 51 Vict. c. 32, ss. 2 and 3. (f) 47 & 48 Vict. c. 72; Trustees of St. Saviours (1886), 31 Ch. D. 412. (g) 59 Geo. 3, c. 134, s. 39. (h) 15 & 16 Vict. c. 85, ss. 2, 3; 16 & 17 Vict. c. 134, s. 17; Slattery v. Naylor (1888), 13 App. Cas. 446. 168. (7) 16 & 17 Vict. c. 134, s. 6. doors of churches one month before the matter is taken into consideration by the Privy Council. Persons burying after the order is made are guilty of a misdemeanour. New Burial Ground. In lieu of the closed burial ground a new one may be purchased, and a burial board formed for the purpose. In the metropolis, such new burial ground must not be within two miles thereof (n). It must be divided into two parts, consecrated and unconsecrated, subject to the approval of the Secretary of State; and if a chapel is built for churchmen, a chapel must also be built for dissenters, or the chapel must be used jointly. The consecrated part of the burial ground is to be deemed the burial ground of the parish or parishes for which it is provided, and the incumbent, sexton, and clerk must perform the same duties, and have the same rights as to fees, &c. (o), and the parishioners generally have the same rights as to sepulture as in the old churchyard; but the vestry or burial board, with the consent of the bishop, can revise the fees or substitute a fixed payment (p). Where there is one burial ground for two or more parishes, such arrangements as to burials and fees as may be approved by the majority or one-half of the incumbents, shall be confirmed by the bishop and be binding on all the incumbents (q); but if the parishes have been divided under 6 & 7 Vict. c. 37, the burial board has a right to apportion the burial fees between them (r). If the bishop refuses to consecrate the burial ground, an appeal lies to the archbishop; but when the Secretary of State has certified that the necessary provisions have been complied with, the incumbent may bury, prior to the decision of the bishop or archbishop as to consecration (s). Where a burial ground has (n) Ibid. ss. 9 et seq. for details; ss. 10-42 and 44, 50-52 apply to all England by 16 & 17 Vict. c. 134, s. 7. See also all the Burial Acts, 1852-1871, and the Public Health Acts, 1875 and 1879, with all of which the Cemeteries Clauses Act, 1847, is incorporated. (0) Burial Board v. Thompson (1871), L. P. 6 C. P. 445; Rector of St. (p) 15 & 16 Vict. c. 85, s. 37. (r) White v. Burial Board for Norwood (1885), 16 Q. B. D. 58. (s) 20 & 21 Vict. c. 81, ss. 12, 13. been provided under the Church Building Acts, provisions are made for its transfer to the burial board (t). Cemeteries may be provided by companies or private individuals. A local authority also can accept land and money for a cemetery, and acquire, construct, or maintain one (u). Although a new cemetery may come within 100 yards of a house, no burial can take place within that limit (~), and the distance is to be measured from the walls of the dwellinghouse, not from its curtilage (y). By the Cemetery Clauses Act, 1847, which may be incorporated into any special cemetery Act, a portion of the cemetery may be consecrated by the bishop, if he is satisfied with the title of the company, and the company must build a chapel within such consecrated portion according to a plan approved by the bishop, and appoint a chaplain (≈). There are special provisions for burial grounds for lunatics under the Lunacy Act, 1890. Fees for erection of tombstones in churchyards depend on custom; in some parishes there is a fee payable to the parish as well as to the incumbent. In one case, the sum of eight guineas is mentioned as the fee for a flat stone (a). In cemeteries and burial grounds there are, generally, fixed rules on the subject. The fees payable to the bishop's officials on the consecration of a burial ground amount to 107. 10s.; for particulars, see FEES. CHURCH DISCIPLINE ACT, 1840. Under this Act any man may be a complainant, no matter where resident, and no matter whether churchman or not (b), and may proceed against any clerk in holy orders with respect to any offence against the laws ecclesiastical or any scandal or evil report (t) 20 & 21 Vict. c. 81, s. 7. (u) Public Health Acts, 1875 and 1879. (x) 18 & 19 Vict. c. 128, s. 9; Cowley v. Byas (1877), 5 Ch. D. 944. (y) Wright v. Wallasey (1887), 18 Q. B. D. 783. (z) 10 & 11 Vict. c. 65, ss. 11, 23 et seq. And see CEMETERY CHAPLAIN. (a) Bordin v. Calcott (1789), 1 Hag. Cons. 17. (b) Per Lord Penzance, Julius v. Bishop of Oxford (1880), 5 App. Cas. 234. as having offended against the said laws (sect. 3); a conviction for forgery is such an offence (c); but where the offence is a criminal one of a very grave character, it ought not to be investigated by an Ecclesiastical Court until the clergyman has been tried and convicted by a criminal court of competent jurisdiction (d). The procedure is to apply to the bishop to issue a commission of inquiry, and it has been held by the House of Lords that it is in the absolute discretion of the bishop whether he will issue such commission or not (e). The bishop must give the accused party fourteen days' notice of his intention to issue the commission, with an intimation of the nature of the accusation. The commission, if issued, consists of five persons, one of whom must be the bishop's vicar general, or an archdeacon or a rural dean within the diocese (sect. 3). The commissioners or any three of them then inquire and report to the bishop, who is empowered, with the consent of all parties, to pronounce sentence without further proceedings (sect. 6), otherwise, if the commissioners report that there is sufficient primâ facie ground, proceedings may be instituted and articles filed (sects. 7, 8, 9), and the case will be tried before the bishop (or his commissary (sect. 12)) and three assessors (sect. 11), unless the case is sent by letters of request (q. v.) to the court of appeal of the province (ƒ) (sect. 13). Pending suit, the bishop may inhibit the accused party from performing the services of the church, but in such case, the accused party, if an incumbent, may nominate a substitute to be approved by the bishop, who may assign to him the stipend required by law for the curacy of the church, and provide for the payment of it by sequestration, if necessary (sect. 14). An appeal (2. v.) lies to the provincial court of appeal and thence to the Queen in Council. The proceedings must be commenced (i. e., citation served on accused to appear (c) Hussey v. Radcliffe (1859), 5 Jur. N. S. 1014. (d) Re A. B. (1886), 11 P. D. 56. supra. (f) See Rules of the Chancery Court of York, 1885 and 1886, 11 P. D. 183. And see ARCHES and APPEAL. |