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1862. The QUEEN
registering thereof, and to all ecclesiastical fees, oblations or offerings, shall apply to such separate and distinct parishes and District parishes so made as aforesaid” &c. Sect. 33 enables the Commissioners to accept sites for building churches and providing churchyards for new District parishes. These sections shew that the division of the parish applies to burials as well as other purposes more strictly ecclesiastical. [Cockburn C. J. I never heard that a parishioner was denied his right to burial in the old parish burial ground because he resided in a new District parish. Crompton J. Would a house having a faculty for a pew in the old parish church lose it when, by the division of the parish, it ceased to be in the old parish?] A prescription for such a pew would no longer be good. [Cockburn C. J. Is not burial a secular as well as an ecclesiastical right? The Legislature treats it as a secular matter, because it gives to the vestry the power of determining whether a new burial ground shall be provided. Mellor J. The sanitary objects contemplated by the Burial Acts to a great extent supersede the ecclesiastical. Crompton J. Burial cannot be called wholly an ecclesiastical matter when a wall or fence is erected between the consecrated and the unconsecrated parts of the burial ground, the one for members of the church and the other for dissenters.] The definition of the word “parish”in sect. 52 of stat. 15 & 16 Vict. c. 85. does not exclude a parish which does not separately maintain its own poor ; Regina v. The Sudbury Burial Board (a). [Crompton J. The test of how the money for the expences of the joint burial ground could be raised was not applied in that case: if it had, the result might have been different.
(a) E. B. & E. 264.
Blackburn J. In that case the Court said that the words "shall mean” in sect. 52 were to be read as “shall extend so as to include.”] Sect. 23 enables the vestries of several parishes to provide a burial ground for the common use of their parishes, and to have one joint Burial Board: if it was wished to have a common burial ground for the three ecclesiastical parishes or districts into which the old parish has been divided, proceedings for that purpose should have been taken under that section. [Cockburn C. J. That section applies where independent parishes concur.] It could not have been the intention of the Legislature that there should be a burial ground for the whole parish and a burial ground for each ecclesiastical parish or district. [Cockburn C. J. We must take it that there was a common burial ground for the whole parish; and that neither of the ecclesiastical parishes or districts has a Burial Board or separate burial ground,—de non apparentibus et non existentibus eadem est ratio.] By stat. 20 & 21 Vict. c. 81. s. 5., " the vestry, or meeting in the nature of a vestry, of any parish, new parish, township, or other district not separately maintaining its own poor, and which has had no separate burial ground, may appoint a Burial Board.” [Cockburn C. J. But you must go the length of saying that this power given to the minor parish created under stat. 58 G. 3. c. 45. ousts the power of the common-law parish. Suppose that, under the powers of stats. 15 & 16 Vict. c. 85. and 16 & 17 Vict. c. 134., the original parish had appointed a Burial Board, and had raised money for the purpose of establishing a new burial ground, and charged it on the poor rates of the whole parish, how can one of the component parts, when formed
into a new parish or ecclesiastical district, release 1862. itself from the obligation of contributing to defray THE QUEEN the common expences ?] By sect. 5 of stat. 20 & 21 Overseers of Vict. c. 81. it is provided that, when the new parish has appointed a Burial Board, “all the powers of any other vestry or meeting and Burial Board, if any, shall then cease and determine," so far as relates to such new parish. [Cockburn C. J. The new parish can only avail itself of that provision if it has appointed a Burial Board before the entire parish has exercised its right of appointing a Burial Board. The assent of one of the Secretaries of State was made necessary by stat. 23 & 24 Vict. c. 64. s. 4. for the purpose of meeting this inconvenience.]
Kinglake Serjt., in reply.—Stat. 20 & 21 Vict. c. 81. s. 5., at any rate, does not apply until the new ecclesiastical parish or district has acted under it. Stat. 58 G. 3. c. 45. s. 24., which enacts that the new Districts shall be separate and distinct District parishes for ecclesiastical purposes, mentioned burials amongst those purposes solely because the mode of burial is matter of ecclesiastical cognizance; 1 Burn. Eccl. Law, by Phillimore, p. 262, 9th ed. (He was then stopped.]
COCKBURN C. J. We are all agreed that this return is bad, and that our judgment ought to be for the Crown.
In the first place it is important to see how the case would have stood if stat. 15 & 16 Vict c. 85., which was passed for the metropolis but was extended to the rest of England by stat. 16 & 17 Vict. c. 134., had stood alone. By sect. 10 a meeting of the vestry of the parish is to be convened for the purpose of determining whether a burial ground shall be provided for the parish ; and,
1862. if they resolve that a burial ground shall be provided,
sect. 11 requires them to appoint a Burial Board, and Overseers of
the following sections give that Board the necessary Walcot. powers,—among others, that of providing and laying out
a burial ground, and of charging the price on the poor rates of the entire parish, to be repaid in a given number of years, and of charging the annual expences on those rates. There is no reference in the Act to parts of an entire common-law parish, into which it may have been divided for ecclesiastical purposes under stat. 58 G. 3. c. 45., or other Church Building Acts; and by the interpretation clause, sect. 52, “ Parish' shall mean every place having separate overseers of the poor, and separately maintaining its own poor.” The whole scheme of the statute is to throw the expence of burial upon the poor rates of those parishes which may avail themselves of its provisions. There is no provision for ecclesiastical parishes into which a common-law parish may have been divided ; and, inasmuch as the expences of the burial ground are to be defrayed out of the poor rates of each parish maintaining its own poor, it is plain that an ecclesiastical parish, as distinguished from the aggregate parish maintaining its own poor, has no means of meeting those expences. But it cannot be supposed that when the Legislature gave power to Her Majesty in council, upon the representation of one of the principal Secretaries of State, to close places hitherto used for burial, and enabled parishes to provide new places of burial, they could have intended to deprive ecclesiastical parishes of the right to bury in the new burial ground. Therefore it is only consistent with common sense and reason to construe the word “parish," in sect. 10 of stat. 15 & 16 Vict. c. 85., in the largest sense, as embracing the whole parish, into however
many parishes or districts it may be divided for eccle. 1862. siastical purposes, but united for the purpose of main- The Queen taining the poor. If, therefore, the question depended on on stat. 15 & 16 Vict. c. 85. alone, I should have no difficulty in saying that the appointment of a Burial Board for the whole parish was a proper exercise of the powers vested in the vestry of the parish by that statute.
Subsequent statutes confirm this view.
The first is stat. 18 & 19 Vict. c. 128. The 12th and 13th sections, which introduce an exception, to a certain extent, from the former statute, by enabling the vestry, of a “parish, township, or other district not separately maintaining its own poor, which has heretofore had a separate burial ground,” to appoint a Burial Board for itself; and where one of these, which does not separately maintain its own poor, but forms part of a parish maintaining its own poor, has a separate Burial Board, the provisions of the former Act with reference to expences are applicable to it. This shews that, but for that provision, the smaller parish or district would not have been a parish within stat. 15 & 16 Vict. c. 85.
Then, by stat. 20 & 21 Vict. c. 81. s. 5., the Legislature extends the power of appointing a Burial Board to a "parish, new parish, township, or other district not separately maintaining its own poor, and which has had no separate burial ground;" and the Burial Board, when appointed, may exercise all the powers given by the former statutes, which includes the power of charging the expences upon the poor rates; and then follows this remarkable proviso, that as soon as that appointment has been made “all the powers of any other vestry or meeting and Burial Board, if any, shall then cease and determine, so far as relates to such parish, new parish, township, or district.” It is unnecessary to decide,