'^> m • itfe* I L I B R.AR.Y OF THL U N IVERSITY or ILLINOIS m /u THE NEW BURIALS ACT. WHAT IT DOES, AND WHAT IT DOES NOT DO, CONTAINING A SHOET SUMMARY OP THE PROVISIONS OP THE ACT AND THE TEXT OP THE ACT ITSELP. BY THE REV. ALFRED T. LEE, LL.D., SECRETARY OF THE CHURCH DEFENCE INSTITUTION. LONDON: THE CHURCH DEFENCE INSTITUTION, 9, BRIDGE STREET, WESTMINSTER. ]880. With the Compliments of the Secretary oJ The Church Defence Institution. St. Stephen's Palace Chambers^ 9, Bridge Street, TVestminster, S. W. THE NEW BUBIALS ACT. Now that the Burials Bill has become law, it is of essen- tial importance that both Clergy and Laity should with the least possible delay have placed before them the nature of its provisions, so that they may understand what it does and what it does not accomplish. So many misapprehen- sions have prevailed on this head that we believe a short and definite account of the Act will be acceptable to many. First, then, let it be fully understood that the Incumbent Present posi- of the parish as regards his legal rights m the Lliurcliyara ^g^t. remains in exactly the same position as he was before. He possesses entire control over it ; the freehold is vested in him ; he can determine the part of the Churchyard in which each corpse is to be buried, and has the right of objection to any inscription proposed to be placed over the grave.* No rights of the Incumbent are abrogated by the Act, but New rights certain new rights bestowed upon others are created by it. ^he Act. Before the passing of the Act no deceased persons (with certain exceptions, specified in the rubric) could be buried in consecrated ground without the service of the Church of * " Monuments or tombstones cannot strictly be placed in churcliyards without the consent of the Ordinary, but the Ordinary usually reposes confidence in the Minister to do what is proper." (Lord Stowell, in Maidman v. Malpas, 1 Hogg. Cony. 207.) A Forty-eight hours' notice of intended burial to be given to In- cumbent. England being read over tlieir remains. Now anyone, Churchman or Nonconformist, who wishes to have his relatives or friends buried in such ground without any- religious service, or with any other Christian and orderly service than that of the Church of England, can do so. To effect this, it is needful that the person in charge of the funeral of a deceased person shall give 48 hours' notice to the Incumbent of the parish, or to any person authorised by him to receive such notice, that it is intended to bury such deceased person within the Churchyard or graveyard of such parish, without the performance of the burial ser- vice of the Church of England. The notice must be in writing, and plainly signed with the name, and stating the address, of the person giving it. (Clause 1.) This notice, a form of which is given below,* states the day and hour of the proposed burial. If the Incumbent does not object to the day or hour mentioned in the notice, he has only to indicate the spot in the graveyard where the deceased person is to be buried, and the interment will take place at the time specified, with * SCHEDULE (A). Notice of Burial. I , of , being the relative [o7' friend, or legal representative, as the case may he, describing the relation, if a relative'] having the charge of or being responsible for the burial of JL. -ff., of ,v7hodiedat in the parish of , on the day of , do hereby give you notice that it is intended by me that the body of the said A. B. shall be buried within the \)iere describe the churchyard or graveyard in which the body is to be buried,'] on the day of at the hour of , without the performance, in the manner prescribed by law, of the service for the burial of the dead according to the rites of the Church of England, and I give this notice pursuant to the "Burial Laws Amendment Act, 1880." To the Rector [or, as the case may be,] such " Christian and orderly " rites as the person in charge of the funeral may think fit. If the Incumbent objects to the time mentioned in the Course if notice for the funeral because it is " inconvenient on ac- objects to count of some other service having been previously to the *^^^®' receipt of such notice appointed to take place in such Churchyard or graveyard, or the Church or Chapel con- nected therewith" the Incumbent (unless otherwise mutually arranged), within 24 hours after receipt of the notice, must signify in writing, "to be delivered to, or left at the ad- dress or usual place of abode of the person from whom such notice has been received, or at the house where the de- ceased person is lying," at which hour of the day men- tioned in the notice, or the day following, the funeral shall take place, and the burial must take place *' at the hour so appointed or mutually arranged." (Clause 3.) From April 1st to October 1st burials must take place Hours of 1 -ir^'i • ^ n ' ^ ' 1 burial, between 10 m the morning and 6 in the evening; and from October 1st to April 1st between 10 in the morning and 3 in the afternoon, "unless it shall be otherwise mutually arranged." It will thus be seen that the Incumbent has no occasion Powers of . , , . . , . , Incumbent to communicate with the person giving the notice unless to time of he objects to the hour mentioned for the funeral. It is ^^^^^ • probable that when mutual good-will exists between the parties concerned little or no difficulty will arise under this head, but if an intrusion into the graveyard should be attempted at a time inconvenient to the Incumbent in con- sequence of any Divine Service in Church appointed for that hour, or any other funeral service in the Churchyard already appointed for that time, the Incumbent, under this Act, has absolute power to fix the hour on that day, or the day following on which the funeral mentioned in this notice a2 Character of service at such funerals. Minors and women may officiate. Services to he decent and orderly. Obstructors guilty of amis- demeanour. Unchristian addresses at funerals for- bidden. shall take place, and the person in charge of the funeral must see that the burial takes place at the hour so ap- pointed. The Act allows as wide a scope as possible to the charac- ter of the services that may be used at these Nonconformist burials. There may be no service at the grave or at the house of the deceased. There may be service at the house and not at the grave. Service may be held at the grave with forms of prayer, or with extempore prayers; hymns, addresses, portions of Scripture, exhortations may also be used. Tlie only limitation is that the service at the grave shall be a religious service, and that it shall be " Christian and orderly." The word "Christian" bein^ declared *' to include every religious service used by any Church, denomination, or person professing to be Christian." (Clause 6.) There is nothing in the Act to prevent a woman officiat- ing at a funeral. Neither is there any limit of age pre- scribed. A. boy or girl of immature years has as much right to officiate under the Act as the most grave and learned divine. But the services under the Act, " whether with or with- out a religious service," must be conducted ^' in a decent and orderly manner," and " any riotous, violent, or inde- cent behaviour," — whatever that, when interpreted by lawful authority, may mean — *' shall be guilty of a misde- meanour." Any one, Churchman or Nonconformist, " wilfully ob- structing such burial, or any such service as aforesaid thereat," is to be liable to the same penalty. Certain limitations are also placed on the character of the address allowed to be delivered at such funerals. Any person delivering an address '* not being part of or inci- dental to a religious service permitted by this Act, and not otherwise permitted by any lawful authority, or who shall, under colour of any religious service or otherwise, in any such churchyard or graveyard, wilfully endeavour to bring into contempt or obloquy the Christian religion^ or the belief or worship of any church or denomination of Christians, or the members or any minister of any sucli church or denomination, or any other person, shall be guilty of a misdemeanour." (Clause 7.) All pow^ers and authorities now possessed by law, by the Securities for Incumbent and Churchwardens for preserving order, or served. preventing disorderly conduct at Church of England fune- rals, are extended to Nonconformist burials under this Act. The person in charge of a funeral under this Act is Registration , . of burials. bound on the day oi the funeral or " the next day there- after " to send to the Incumbent or other officiating minister in charge of the parish a certificate of burial according to the prescribed form given below.* The Incumbent or official minister upon receipt of such certificate is bound to enter such burial '' in the register of burial of such parish or dis- trict," but the entry, instead of stating by whom the cere- mony of burial was performed, will state the name of the person by whom the notice of the funeral has been served under this Act. The name therefore of the person in charge of the funeral and not of the person officiating will appear in the parish register. * SCHEDULE (B.) I , of , the person having the charge of {or being responsible for) the burial of the deceased do hereby certify that on the day of A.B. of aged was buried in the churchyard [or graveyard] of the parish \_or district] of To the Rector \ov, as the case may be'] of Not to register duly such burial, a mis- demeanour. Clergyman may use burial service in unconsecrated ground. Any clergy- man may officiate on such occasions. Alternative services. Over whom they may be used. If the Incumbent upon receiving such certificate shall " refuse or neglect duly to enter such burial in such register " he will be guilty of a misdemeanour. Under this Act the Clergy are empowered to use the service of the Church of England for the burial of the dead " in any unconsecrated burial-ground or cemetery," and to officiate if they like in the Chapel thereon. It is pro- bable that the occasions on which this new power will be exercised will be few. It is not desired by the Clergy generally, but may be used by them when a member of the Church is to be buried by the side of a Nonconformist re- lative already interred in unconsecrated ground. If the person in charge of the funeral of a deceased per- son wishes him to be buried in unconsecrated ground with the rites of the Church of England, he may have those rites performed " by any minister of the said Church who may be willing to perform the same." (Clause 12.) As is well known, the Convocation Clause, as it is commonly called, with its accompanying Schedule, which was in the original Bill as introduced by Lord Selborne in the House of Lords, has been so altered in the House of Commons and the Schedule omitted, as to be no longer entitled to that name. The clause as altered really bestows more liberty on the Clergy than it did in its original form — whilst the hardly justifiable appeal to the authority of Convocation has disappeared. The Church Service for the Burial of the Dead cannot be used (1) " For any that die unbaptized, or excommuni- cate, or have laid violent hands on themselves," and (2) It must be used over all who die baptized, whatever their course of life may have been. The new clause permits the use of a service sanctioned by the Ordinary over any of those mentioned in (1) at the option of the Clergyman; and also over any mentioned in (2) '* at the request of the relative, friend, or legal repre- sentative having the charge of the funeral of the deceased." (Clause 13.) The new Service must consist of prayers taken from the Of what they Book of Common Prayer and portions of Holy Scripture, ^^^ ^°^^^^ ' and it is probable that the Ordinary will in most cases sanction the use of such a service as has already been pro- posed for this purpose by Convocation. No new rights are conferred on the Clergy as to officiating at burials, save as it is expressly provided in the Act. No authority which they do not possess by the existing law is therefore given to the Clergy to officiate out of their own parishes. The Act extends to the Channel Islands, but not to Scot- land, or Ireland, or the Isle of Man. Its short title is *' The Burial Laws Amendment Act 1880." From the above short summary of the provisions of the Act it will be seen, that its chief enactment is that lay mi- nistration, in the eye of the law, will henceforth be sanc- tioned at the side of the grave, and that the services to be there held under the Act are confined to- no particular form or person. Nonconformity is not recognised in the Act as such. It takes for granted that there are certain persons who object to be buried, as Christians for many cen- turies have been content to be buried, according to the old accepted service, and it provides the means of burial with their own services to all those who have the parochial right of burial. It is especially to be observed that it gives no rights in this matter to non-parishioners, and therefore the Incumbent will be fully justified in refusing permission to 10 any non-parishioner to be buried in the Churchyard with any of the services permitted under the Act. Much has been said from time to time as to the effects of the passing of this Bill on the Establishment of the Church. It has been stated that Nonconformists, having obtained admission into our Churchyards, will at once claim admission into our Churches. This may prove to be quite true, and it is undoubted that the most vehement partisans of the change have openly pushed it forward with this as their ultimate aim. But our present object is not to refute their preposterous claims, but to let Churchmen understand their true position under this new statute and thereby certify them of the rights of which they are still possessed. So long as the Burials question was in debate it was the duty of Churchmen to raise a warning voice — to point to the manifest tendencies, and to unmask the real intentions of their adversaries. Now that Parliament has unhappily created a new condition of things, it is equally the duty of the Church to realise how much has been left to it, no less than what has been wrested from it. The Act does not interfere with the ownership of pro- perty in the Churchyard. It does not interfere with the legal rights of the Incumbent save as to restricting his power to forbid funerals in the Churchyard unaccompanied with the service of the Church of England. It however leaves him in the full exercise of the rights of control in all matters essential to the promotion of order and decency within the precincts of the Churchyard. In conclusion, however ungrateful to the feelings of many Churchmen the provisions of this Act may be, however great a grievance it may appear to be in the eyes of many. 11 it is earnestly to be hoped that now, notwithstanding many earnest protests, it has become law. Churchmen of all classes, whether Clergy or Laity, will submit, with patient dignity, to this unwelcome enactment, and not gratify their enemies by an unseemly and unavailing oppo- sition unworthy alike of their duty as Christians and their position as law-abiding Englishmen. 12 AN ACT To amend the Burial Laws. A.D. 1880. After passing 3f Act notice may be given that burial will take place in churchyard or graveyard without the rites of the Church of England. WHEREAS it is expedient to amend the Law of Burial in England and the Channel Islands : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, as follows: 1 . After the passing of this Act any relative, friend, or legal representative having the charge of or being responsible for the burial of a deceased person may give forty-eight hours' notice in writing, indorsed on the outside " Notice of Burial," to, or leave, or cause the same to be left, at the usual place of abode of the rector, vicar, or other incumbent, or in his absence the officiating minister in charge of any parish or ecclesiastical district or place, or any person appointed by him to receive such notice, that it is intended that such deceased person shall be buried within the churchyard or graveyard of such parish or ecclesiastical district or place without the performance, in the manner prescribed by law, of the service for the burial of the dead according to the rites of the Church of England, and after receiving such notice no rector, vicar, incumbent, or officiating minister shall be liable to any censure or penalty, ecclesiastical or civil, for permitting any such burial as aforesaid. Such notice shall be in writing, plainly signed with the name and stating the address of the person giving it, and shall be in the form or to the effect of Schedule (A.) annexed to this Act. 13 The word "graveyard" in this Act shall include any burial A.D. 1880. ground or cemetery vested in any burial board, or provided under any Act relating to the burial of the dead, in which the parishioners or inhabitants of any parish or ecclesiastical district have rights of burial ; and in the case of any such burial ground or cemetery, if a chaplain is appointed to perform the burial service of the Church of England therein, notice under this Act shall be addressed to such chaplain, but the same shall be given to or left at the office of the clerk of the burial board, if any, in whom any such burial ground or cemetery may be vested : Provided also, That it shall be lawful for the proprietors or directors of any proprietary cemetery or burial ground to make such bye-laws or regulations as may be necessary for enabling .any burial to take place therein in accordance with the provisions of this Act, any enactment to the contrary notwith- standing. 2. Such notice, in the case of any poor person deceased. Paupers, whom the guardians of any parish or union are required or authorised by law to bury, may be given to the rector, vicar, or other incumbent in manner aforesaid, and also to the master of any workhouse in which such poor person may have died, or otherwise to the said guardians, by the husband, wife, or next of kin of such poor person, who, for the purposes of this Act, shall be deemed to be the person having the charge of the burial of such deceased poor person ; and in any such case it shall be the duty of the said guardians to permit the body of such deceased person to be buried in the manner provided by this Act. 3. Such notice shall state the day and hour when such burial Time of burial , . .1 ,. , , 1 , . to be stated, is proposed to take place, and, m case the time so stated be m- subject to convenient on account of some other service having been, ^^a^i^tio^- previously to the receipt of such notice, appointed to take place in such churchyard or graveyard, or the church or chapel con- nected therewith, or on account of any bye-laws or regulations lawfully in force in any graveyard limiting the times at which 14 A.D. 1880. burials may take place in such graveyard, the person receiving the notice shall, unless some other day or time shall be mutually arranged within twenty-four hours from the time of giving or leaving such notice, signify in writing, to be delivered to or left at the address or usual place of abode of the person from whom such notice has been received, or at the house where the deceased person is lying, at which hour of the day named in the notice, or (if, in case of burial in a churchyard, such day shall be a Sunday, Good Friday, or Christmas Day) of the day next following, such burial shall take place; and it shall be lawful for the burial to take place, and it shall take place, at the hour so appointed or mutually arranged, and in other respects in accordance with the notice : Provided, That unless it shall be otherwise mutually arranged, the time of such burial shall be between the hours of ten o'clock in the forenoon and six o'clock in the afternoon if the burial be between the first day of April and the first day of October, and between the hours of ten o'clock in the forenoon and three o'clock in the afternoon if the burial be between the first day of October and the first day of April : Provided also, That no such burial shall take place in any churchyard on Sunday, or on Good Friday or Christmas Day, if any such day being proposed by the notice shall be objected to in writing for a reason assigned by the person re- ceiving such notice. Burial to take 4. When no such intimation of change of hour is sent to the place accord- p^j-gon fj-oni whom the notice has been received, or left at the house where the deceased person is lying, the burial shall take place in accordance with and at the time specified in such notice. Regulations 5. All regulations as to the position and making of the grave and lees. which would be in force in such churchyard or graveyard in the case of persons interred therein with the service of the Church of England shall be in force as to burials under this Act ; and any person who, if the burial had taken place with the service 15 of the Church of England, would have been entitled by law to a.D. 1880. receive any fee, shall be entitled, in case of a burial under this Act, to receive the like fee in respect thereof. 6. At any burial under this Act all persons shall have free ^"th^o^.^J^^^i^^® access to the churchyard or graveyard in which the same shall out religious sGrvicc take place. The burial may take place, at the option of the person so having the charge of or being responsible for the same as aforesaid, either without any religious service, or with such Christian and orderly religious service at the grave, as such person shall think fit ; and any person or persons who shall be thereunto invited, or be authorised by the person having the charge of or being responsible for such burial, may conduct such service or take part in any religious act thereat. The words ** Christian service " in this section shall include every religious service used by any church, denomination, or person professing to be Christian. 7. All burials under this Act, whether with or without a re- Burials to be ligious service, shall be conducted in a decent and orderly man- ^ ^q^q^^ and ner ; and every person guilty of any riotous, violent, or indecent orderly man- behaviour at any burial under this Act, or wilfully obstructing out obstruc- such burial or any such service as aforesaid thereat, or who ^°"" shall, in any such churchyard or graveyard as aforesaid, deliver any address, not being part of or incidental to a religious ser- vice permitted by this Act, and not otherwise permitted by any lawful authority, or who shall, under colour of any religious service or otherwise, in any such churchyard or graveyard, wil- fully endeavour to bring into contempt or obloquy the Christian religion, or the belief or worship of any church or denomination of Christians, or the members or any minister of any such church or denomination, or any other person, shall be guilty of a mis- demeanour. 8. All powers and authorities now existing by law for the Powers for preservation of order, and for the prevention and punishment of disorder. disorderly behaviour in any churchyard or graveyard may be 16 A.D. 1880. Act not to give right of burial where no pre- vious right existed. Burials under Act to be registered. Order of coroner or certificate of registrar to be exercised in any case of burial under this Act in the same manner and by the same persons as if the same had been a burial according to the rites of the Church of England. 9. Nothing in this Act shall authorise the burial of any per- son in any place where such person would have had no right of interment if this Act had not passed, or without performance of any express condition on which, by the terms of any trust deed, auy right of interment in any burial ground vested in trustees under such trust deed (not being the churchyard or graveyard, or part of the churchyard or graveyard, of the parish or ecclesiastical district in which the same is situate) may have been granted. 10. When any burial has taken place under this Act the per- son so having the charge of or being responsible for such burial as aforesaid shall, on the day thereof, or the next day there- after, transmit a certificate of such burial, in the form or to the effect of Schedule (B) annexed to this Act, to the rector, vicar, incumbent, or other officiating minister in charge of the parish or district in which the churchyard or graveyard is situate or to which it belongs, or in the case of any burial ground or cemetery vested in any burial board to the person required by law to keep the register of burials in such burial ground or cemetery, who shall thereupon enter such burial in the register of burials of such parish or district, or of such burial ground or cemetery, and such entry shall form part thereof. Such entry, instead of stating by whom the ceremony of burial was performed, shall state by whom the same has been certified under this Act. Any person who shall wilfully make any false statement in such cer- tificate, and any rector, vicar, or minister, or other such person as aforesaid, receiving such certificate, who shall refuse or neglect duly to enter such burial in such register as aforesaid, shall be guilty of a misdemeanour. 11. Every order of a coroner or certificate of a registrar given under the provisions of section seventeen of the Births and Deaths Registration Act, 1874, shall, in the case of a burial I 17 under that Act, be delivered to the relative, friend, or legal A.D. 1880. representative of the deceased, having the charge of or being delivered to responsible for the burial, instead of beino* delivered to the felative, &c., ^ ^ ... instead or to person who buries or performs any funeral or religious service person who for the burial of the body of the deceased ; and any person to '^^^^^• whom such order or certijficate shall have been given by the coroner or registrar who fails so to deliver or cause to be delivered the same shall be liable to a penalty not exceeding forty shillings, and any such relative, friend, or legal repre- sentative so having charge of or being responsible for the burial of the body of any person buried under this Act as aforesaid, as to which no order or certificate under the same section of the said Act shall have been delivered to him, shall, within seven days after the burial, give notice thereof in writing to the registrar, and if he fail so to do shall be liable to a penalty not exceeding ten pounds. 12. No minister in holy orders of the Church of England Liberty to shall be subject to any censure or penalty for officiating with service of the service prescribed by law for the burial of the dead Church of . . . England m according to the rites of the said church in any unconsecrated unconsecrated burial ground or cemetery or in any building thereon, or part of S^^^^ a burial ground or cemetery, in any case in which he might have lawfully used the same service if such burial ground or cemetery or part of a burial ground or cemetery had been consecrated. The relative, friend, or legal representative having charge of or being responsible for the burial of any deceased person who had a right of interment in any such unconsecrated ground vested in any burial board, or provided under any Act relating to the burial of the dead, shall be entitled, if he think fit, to have such burial performed therein according to the rights of the Church of England by any minister of the said Church who may be willing to perform the same. 13. From and after the passing of this Act, it shall be lawful j^elief of for any minister in holy orders of the Church of England autho- pf^^-^/^^f rised to perform the burial service, in any case where the office England from 18 A.D. 1880. penalties in certain cases. Saving as to ministers of Church of England. Application of Act. Short title of Act. for the burial of the dead according to the rights of the Church of England may not be used, and in any other case at the request of the relative, friend, or legal representative having the charge of or being responsible for the burial of the deceased, to use at the burial such service, consisting of prayers taken from the Book of Common Prayer and portions of Holy Scripture, as may be prescribed or approved of by the Ordinary without being subject to any ecclesiastical or other censure or penalty. 14. Save as in this Act expressly provided as to ministers of the Church of England, nothing herein contained shall autho- rise or enable any such minister who shall not have become a declared member of any other Church or denomination, or have executed a deed of relinquishment under the " Clerical Dis- abilities Act, 1870," to do any act which he would not by law have been authorised or enabled to do if this Act had not passed, or to exempt him from any censure or penalty in respect thereof. 15. This Act shall extend to the Channel Islands, but shall not apply to Scotland or to Ireland. 16. This Act may be cited as " The Burial Laws Amendment Act, 1880." 19 SCHEDULES TO WHICH THIS ACT REFERS, Schedule (A.) Notice oj Burial. I , of , being the relative \_or friend, or legal representative, as the case may he, describing the relation if a relative,'] having the charge of or being responsible for the burial of ^. ^., of , who died at , in the parish of , on the day of do hereby give yon notice that it is intended by me that the body of the said A. B. shall be buried within the [here describe the churchyard or graveyard in which the body is to be buried, ~\ on the day of , at the hour of , without the performance in the manner prescribed by law of the service for the burial of the dead according to the rites of the Church of England, and I give this notice pursuant to the " Burial Laws Amendment Act, 1880." To the Rector \_or, as the case may be,] of Schedule (B.) I , of , the person having the charge of (or being responsible for) the burial of the deceased, do hereby certify that on the day of , A. B. of , aged , was buried in the churchyard [or graveyard] of the parish [or district] of To the Rector [or, as the case may be,] of i 11 WMj '¥W't, m M^ >% .^- ^>^f> •*i*| "ki ^s d; ^: m^ '^v ^'t'*/ tirfc:. ,«ra^M| '<;■ -i-ai.