1911 Encyclopædia Britannica/Burial and Burial Acts

BURIAL and BURIAL ACTS (in O. Eng. byrgels, whence byriels, wrongly taken as a plural, and so Mid. Eng. buryel, from O. Eng. byrgan, properly to protect, cover, to bury). The main lines of the law of burial in England may be stated very shortly. Every person has the right to be buried in the churchyard or burial ground of the parish where he dies, with the exception of executed felons, who are buried in the precincts of the prison or in a place appointed by the home office. At common law the person under whose roof a death takes place has a duty to provide for the body being carried to the grave decently covered; and the executors or legal representatives of the deceased are bound to bury or dispose of the body in a manner becoming the estate of the deceased, according to their discretion, and they are not bound to fulfil the wishes he may have expressed in this respect. The disposal must be such as will not expose the body to violation, or offend the feelings or endanger the health of the living; and cremation under proper restrictions is allowable. In the case of paupers dying in a parish house, or shipwrecked persons whose bodies are cast ashore, the overseers or guardians are responsible for their burial; and in the case of suicides the coroner has a similar duty. The expenses of burial are payable out of the deceased’s estate in priority to all other debts. A husband liable for the maintenance of his wife is liable for her funeral expenses; the parents for those of their children, if they have the means of paying. Legislation has principally affected (1) places of burial, (2) mode of burial, (3) fees for burial, and (4) disinterment.

1. The overcrowded state of churchyards and burial grounds gradually led to the passing of a group of statutes known as the Burial Acts, extending from 1852 up to 1900. By these acts a general system was set up, the aim of which was to remedy the existing deficiencies of accommodation by providing new burial grounds and closing old ones which should be dangerous to health, and to establish a central authority, the home office (now for most purposes the Local Government Board) to superintend all burial grounds with a view to the protection of the public health and the maintenance of public decency in burials. The Local Government Board thus has the power to obtain by order in council the closing of any burial ground it thinks fit, while its consent is necessary to the opening of any new burial ground; and it also has power to direct inspection of any burial ground or cemetery, and to regulate burials in common graves in statutory cemeteries and to compel persons in charge of vaults or places of burial to take steps necessary for preventing their becoming dangerous or injurious to health. The vestry of any parish, whether a common-law or ecclesiastical one, was thus authorized to provide itself with a new burial ground, if its existing one was no longer available; such ground might be wholly or partly consecrated, and chapels might be provided for the performance of burial service. The ground was put under the management of a burial board, consisting of ratepayers elected by the vestry, and the consecrated portion of it took the place of the churchyard in all respects. Disused churchyards and burial grounds in the metropolis may be used as open spaces for recreation, and only buildings for religious purposes can be built on them (1881, 1884, 1887). The Local Government Act 1894 introduced a change into the government of burial grounds (consequent on the general change made in parochial government) by transferring, or allowing to be transferred, the powers, duties, property and liabilities of the burial boards in urban districts to the district councils, and in rural parishes to the parish councils and parish meetings; and by allowing rural parishes to adopt the Burials Acts, and provide and manage new burial grounds by the parish council, or a burial board elected by the parish meeting.

2. The mode of burial is a matter of ecclesiastical cognizance; in the case of churchyards and elsewhere it is in the discretion of the owners of the burial ground. The Local Government Board now makes regulations for burials in burial grounds provided under the Burial Acts; for cemeteries provided under the Public Health Act 1879. Private cemeteries and burial grounds make their own regulations. Burial may now take place either with or without a religious service in consecrated ground. Before 1880 no body could be buried in consecrated ground except with the service of the Church, which the incumbent of the parish or a person authorized by him was bound to perform; but the canons and prayer-book refused the use of the office for excommunicated persons, majori excommunicatione, for some grievous and notorious crime, and no person able to testify of his repentance, unbaptized persons, and persons against whom a verdict of felo de se had been found. But by the Burial Laws Amendment Act 1880, the bodies of persons entitled to be buried in parochial burial grounds, whether churchyards or graveyards, may be buried there, on proper notice being given to the minister, without the performance of the service of the Church of England, and either without any religious service or with a Christian and orderly religious service at the grave, which may be conducted by any person invited to do so by the person in charge of the funeral. Clergymen of the Church of England are also by the act allowed, but are not obliged, to use the burial service in any unconsecrated burial ground or cemetery, or building therein, in any case in which it could be used in consecrated ground. In cases where it may not be so used, and where such is the wish of those in charge of the service, the clergy may use a form of service approved by the bishop without being liable to any ecclesiastical or temporal penalty. Except as altered by this act, it is still the law that “the Church knows no such indecency as putting a body into consecrated ground without the service being at the same time performed”; and nothing in the act authorizes the use of the service on the burial of a felo de se, which, however, may take place in any way allowed by the act of 1880. The proper performance of the burial office is provided for by the Public Worship Regulation Act 1874. Statutory provision is made by the criminal law in this act for the preservation of order in burial grounds and protection of funeral services.

3. Fees are now payable by custom or under statutory powers on all burials. In a churchyard the parson must perform the office of burial for parishioners, even if the customary fee is denied, and it is doubtful who is liable to pay it. The custom must be immemorial and invariable. If not disputed, its payment can be enforced in the ecclesiastical court; if disputed, its validity must be tried by a temporal court. A special contract for the payment of an annual fee in the case of a non-parishioner can be enforced in the latter court. In the case of paupers and shipwrecked persons the fees are payable by the parish. In other parochial burial grounds and cemeteries the duties and rights to fees of the incumbents, clerks and sextons of the parishes for which the ground has been provided are the same as in burials in the churchyard. Burial authorities may fix the fees payable in such grounds, subject to the approval of the home secretary; but the fees for services rendered by ministers of religion and sextons must be the same in the consecrated as in the unconsecrated part of the burial ground, and no incumbent of a parish or a clerk may receive any fee upon burials except for services rendered by them (act of 1900). On burials under the act of 1880 the same fees are payable as if the burial had taken place with the service of the Church.

4. A corpse is not the subject of property, nor capable of holding property. If interred in consecrated ground, it is under the protection of the ecclesiastical court; if in unconsecrated, it is under that of the temporal court. In the former case it is an ecclesiastical offence, and in either case it is a misdemeanour, to disinter or remove it without proper authority, whatever the motive for such an act may be. Such proper authority is (1) a faculty from the ordinary, where it is to be removed from one consecrated place of burial to another, and this is often done on sanitary grounds or to meet the wishes of relatives, and has been done for secular purposes, e.g. widening a thoroughfare, by allowing part of the burial ground (disused) to be thrown into it; but it has been refused where the object was to cremate the remains, or to transfer them from a churchyard to a Roman Catholic burial ground; (2) a licence from the home secretary, where it is desired to transfer remains from one unconsecrated place of burial to another; (3) by order of the coroner, in cases of suspected crime. There has been considerable discussion as to the boundary line of jurisdiction between (1) and (2), and whether the disinterment of a body from consecrated ground for purposes of identification falls within, (1) only or within both (1) and (2); and an attempt by the ecclesiastical court to enforce a penalty for that purpose without a licence has been prohibited by the temporal court.

See also Churchyard; and, for methods of disposal of the dead, Cemetery; Cremation, and Funeral Rites.

Authorities.—Baker, Law of Burials (6th ed. by Thomas, London, 1898); Phillimore, Ecclestastical Law (2nd ed., London, 1895); Cripps, Law of Church and Clergy (6th ed., London, 1886).  (G. G. P.*)