BURIALS IN IRELAND BILL.

HC Deb 29 March 1824 vol 10 cc1453-65

Mr. Plunkett

rose to move the order of the day for the second reading of the Burials in Ireland bill. The right hon. and learned gentleman observed, that he would not have brought it forward at that moment, if he had not had some reason to flatter himself, from the general opinion which he had collected from all sides of the House on the measure, that there was no likelihood of any material objection being offered to it, nor of any discussion arising that would be at all calculated to pruduce a protracted debate. The House was already aware of the general scope and object of the bill. It related to the burials, in Ireland, of persons dissenting from the doctrines and discipline of the Established Church, with those forms and ceremonies which were peculiar to the religion professed by them. Every one must feel, that this was a subject of extreme importance, as it related to the moral feelings, passions, and prejudices of the great bulk of the population of Ireland; and they must also perceive, that it was a question of the greatest delicacy, because, as it referred to circumstances which must occur in the precincts of protestant church-yards, it would naturally excite the attention of those who felt an interest in the security of the protestant establishment. He therefore approached the subject with a considerable degree of caution, he would not say of alarm; because the measure had been so maturely considered, and so nicely prepared, with reference to both sides of the question, that while it would make the law easy, as to the burial of dissenters, it would not create any just alarm in the minds of those who were connected with the Established Church. But, when he stated that it was a subject of great difficulty and delicacy, he begged to observe, that it was not on that account that he had taken it out of the hands in which it had been previously placed. Whether he considered the question with a view to its importance, its difficulty, or its delicacy, he knew of no hands better suited to bring it forward effectually than those of his right hon. friend (sir J. Newport). The course which his right hon. friend had taken in the debate relative to Education in Ireland, which occurred a few evenings since—the tone of temper and moderation with which he had introduced that delicate subject, proved clearly, that no man was more fit to conciliate the opinions and sooth the passions of all parties. Still, however, he thought it would be felt, that it was better that this question should be taken up by one who spoke the sentiments of the government of the country, rather than by any individual unconnected with the government. Many reasons could be adduced in support of this position. It was right, in the first place, that the public should know the anxious solicitude which the government entertained, with respect to the welfare of the people of Ireland; and next, it was important that the question should be now brought forward in such a manner as to reconcile all classes to it. This end could be much better attained by the government, than if the measure were introduced by any individual, however respectable.—Having said thus much to excuse the government of the country for entertaining this measure, it would perhaps be expected that he should state some reason for its not having been taken up sooner. Many circumstances existed in Ireland, which would have made it unwise in government to have interfered with a question of this kind at an earlier period. Whatever inconveniencies existed in the actual state of the law—and he admitted those inconveniencies to be many and considerable—yet still it was found that very few of them were of a practical nature. Government, therefore, had not thought it necessary to legislate on theoretical principles, so long as the existing law appeared to work well. But a new state of things had sprung up, and it was now found expedient to make some change in the law. The first thing it was proposed to do was, to repeal the act of the 9th William 3rd cap. 7. He believed, with respect to this point, there was an universal consent on the part of every person concerned. He would now state what the object of the act of William was. It was probably known to most gentlemen in that House, that there were in Ireland a number of abbeys and convents, the sites of places formerly used for religious worship, and vested in ecclesiastical persons. These venerable places were looked on with considerable respect, if not reverence, by all classes of people in Ireland. They had been founded from motives of piety, and though sometimes tenanted by superstition and bigotry, yet it could not be denied, that they were often the abodes of genuine religion and pure charity. From them, in former times, the blessings of hospitality had been disseminated amongst the poor and the needy. Those places had long since been taken out of the possession of the ecclesiastical proprietors, and vested in the several members of the state. But they were still viewed by the people with feelings of respect and veneration. Though no longer used as places of religious worship, they were much resorted to as places of burial not merely for the Roman Catholics of the country, but very frequently for the Protestants; and he felt, that the remains of those ancient edifices were not the least interesting objects of contemplation to those persons who visited Ireland. Looking to the disturbances, religious and political, by which that country had been torn, it was a point on which the mind reposed with some degree of pleasure, when it reflected, that in those cemeteries the Protestant and the Catholic, persons of all ranks and persuasions, were buried in common. However they might have differed in life, in death they were suffered to repose together; and the place of their interment was not made a scene for the display of acrimonious feeling and unseemly asperity. This state of things had prevailed, he believed, more or less, ever since the Reformation. It must seem extraordinary that, under these circumstances, the act of the 9th of William was passed, by which burials in those places were forbidden, as well to Protestants as to Catholics. It seemed extraordinary, when the practice was carried on without offence to any party, that it should have been interfered with by this law. He believed it was not with a view to any direct interference with the rights of sepulture of any religious sect, that the law was enacted, but that it was framed in a spirit of jealousy, which could not bear that any religious feeling should be kept alive with respect to those old places of worship. Certainly, whatever might have been the object of the act, its provisions were opposed to those affections and decencies, with reference to the deceased, which ought always to be respected. The act was framed, but it fell still-born, as all measures must do when opposed to the feelings and sentiments of a country. In no one instance, for a series of years, had the custom which had so long prevailed been interfered with—in no one instance had this obnoxious law been carried into effect. If, then, there was an act on their Statute-book, to enforce which would be considered a crime, and to infringe it would be looked on as a duty, it ought not to be suffered to remain; and one object of the measure now before the House was, to repeal this act. The House would, however, observe, that there was a clause regulating and narrowing that repeal. The reason of this was, that many of those places were diverted from their original purpose, and were possessed by individuals; and care should be taken, that no interference with private property was admitted under this measure; which would be the case, if persons who were not in the habit of using particular places of this description for burying grounds, were suffered to do so now.—He would now, as shortly as he could, apply himself to the more important provisions of this bill, so far as it professed to give the right of burial in Protestant church-yards, according to the religious ceremonies of the parties whose friends were brought there for interment. The noble lord who presided over the government of Ireland, and who had applied himself to this, as well as to every other subject connected with the interests of that country, felt the deepest anxiety for the success of this measure; and he (Mr. P.) knew of no other reason why he now addressed the House, except that, from his constant intercourse with the noble lord, he had the best means of learning his views on the subject. This measure originated with the noble lord, and had received the unanimous sanction of his majesty's government. The two great objects of the bill were these, to secure to dissenters of every denomination the right of interment according to the in own forms and ceremonies, and to take care, at the same time, that nothing was done offensive to the dignity, or subversive of the security, of the Protestant reli- gion.—Before he proceeded further, it was necessary that he should describe what was the state of the Jaw on this subject as it now existed. In the first place, he would endeavour to put the House in possession of what was the situation of the Protestant parson as to the right of burial. Gentlemen, doubtless, knew, that the freehold of the churchyard was vested in the rector. The church-yard was his freehold, and no person could enter it, unless by his leave, without committing a trespass. But, besides the right which belonged to him as the possessor of the soil, he was, as the parson, empowered by law to superintend the mode of granting Christian burial in the church-yard. He was to grant the right of interment; and, by the act of Uniformity, he was to read the burial service of the church of Ireland, as by law established, and no other. He could not, himself, read any other service; neither could he depute any person to read a different service in the churchyard. He could employ another gentleman in orders to read the service of the church of Ireland; but he could not allow any layman, or a member of any other community, to read it. If this law were acted on, and the Protestant clergy were in every instance to insist on reading this service, and going through the rites and ceremonies prescribed by the church of Ireland, it would virtually deprive the great body of the people of the right of interment. Considering what their religious opinions were, such a practice would amount to actual exclusion. He did not mean to argue, whether their feeling on this subject was a right one or not: it was his duty merely to state the fact. The opinions, feelings, and prejudices of the people of Ireland were such, that if the principle were insisted on, it would actually amount to an exclusion from the right of interment of all the Catholics, at least, if not of all the Dissenters.—This was the situation of the law, on one side: now let the House mark what it was on the other. According to the laws of the land, every person had a right to interment in the Protestant church-yard of the parish where he died. His relatives had a right to claim it: but they were entitled to claim it, subject to that right of the Protestant parson which he had just mentioned. But, suppose he performed the rites of the Protestant church, or that he waved their perform- ance, there was no law which, in either case, prohibited the performance of dissenting rites in a Protestant church-yard. There was no law, where the Protestant parson had discharged his functions, or waved them, to prevent Roman Catholic ceremonies from being performed in the church-yard, however ostentatiously celebrated, or however calculated to produce feelings of pain in the mind of the Protestant clergyman There were a number of laws passed in Ireland, after the Reformation, on the subject of the Catholic priests. By those laws, besides inflicting penalties on priests coming from abroad, there were others which also imposed penalties on all priests who were not registered in a regular manner. By the 21st and 22nd of the late king, the greater part of these penalties were removed, under certain restrictions and conditions. One of them was, that the benefit of those acts should not extend to any Catholic priest who officiated in a Protestant church-yard. It was supposed, that under this clause it was a criminal or penal act, for a priest to perform the burial service in a Protestant church-yard; but the supposition was entirely erroneous: it had no other effect than saying, that the Catholic priest who performed the service in a Protestant church-yard, should not have the benefit of that particular law. He was liable to be indicted, not for having performed the service, but for not having duly registered himself under the former act; which he was not required to do, provided he obeyed the restrictions enumerated in the 21st and 22nd of Geo. 3rd. But, whatever might have been the-state of the law on this subject, growing out of the 21st and 22nd of Geo. 3rd, all difficulty was removed, in Ireland, by the law of 1793. By that law, it was not an illegalact for the Catholic priest to officiate. He could not be indicted for it: he could not be prevented from doing it. If the contrary were admitted; if the Protestant clergyman had a right to insist on performing the service of the church of Ireland; it would totally exclude the whole body of Roman Catholics from interment. If the Protestant clergyman chose to come in and perform his service, or if he waved his right to officiate, there was no law to prevent the Catholic priest from exercising his functions. This was the state of the law; and, considering the situation of the parties, it was fraught with all the seeds and elements of discord and dissension. But though such was the fact—though the state of the law was calculated to produce connections and collisions between those opposing parties—it was pleasing to state, that, with very few and rare exceptions, those elements of discord and dissension had not created any of those effects which might have been expected from them. One would, indeed, almost praise this state of the law; since it gave an opportunity to people of all sects, and of all religious opinions, to display feelings the most liberal and charitable. He must say, and he said it with great respect for the parochial clergy, that, until of late years, they "had not, in the smallest degree, interfered with the right of interment in Protestant church-yards. They had forborne to exercise a duty which was imposed on them by the common law of the country, and by the act of Uniformity, because they felt that it would create uneasiness and dissatisfaction. The Catholic clergymen also had conducted themselves in a most exemplary manner. He believed the Catholic body in general were buried without any ceremony; but it was customary, on the interment of Catholics of the better orders, to have, more or less, a sort of service performed by the priest. Sometimes he appeared in the stole, a sort of black robe, and sometimes he officiated in his plain clothes; but he never presumed to offer any thing offensive to the Protestant church. This was the way in which the matter remained, until lately, without any degree of offence being taken by the Protestant clergy. This should be particularly stated; because it proved, that there was not that unmanageable texture in the sentiments of those who held different religious opinions in Ireland, that ought to shut out all hope of accommodation, that ought to lead the House to believe, that it was. impossible to smooth down those religious feelings, the asperity of which had been the bane and curse of Ireland. When matters remained thus—when, on the one hand, there was no interference, and on the other, no offence—he thought it would have been unwise if government had legislated for prospective evils, that perhaps might never have arisen. But, about four or five years back, the performance of religious ceremonies by a Catholic priest, in a Protestant churchyard, was resisted. At the time this took place, such occurrences were extremely unfrequent; and government thought it better to get rid of them by giving conciliatory advice, rather than by exerting the strong hand of authority, or by calling on Parliament to take the business up. In the course of last year, however, the complaints on this subject had greatly increased. Whether the right was more frequently claimed by the Catholic clergy, or contended for in a different degree or manner from what had been customary, he could not say but, a good deal of alarm had certainly been excited. Whether that alarm was just or not, he could not discover; and he believed it would be very difficult to ascertain the fact. If one person were asked, whether the ceremony was the same as was heretofore performed, the answer was in the affirmative; but the next individual of whom inquiry was made would state exactly the reverse. In fact, individuals seemed to be guided rather by their prejudices, than by any desire to elicit the truth. He therefore thought it would be much better to leave the circumstances out of which this alarm had arisen, in the ambiguity in which they were placed at present, than to attempt to explore them. Whatever had been done by the Protestant clergy, was, he felt convinced, performed in the discharge of a conscientious duty. He paid a most ready and willing homage to the forbearance manifested by the great body of the parochial clergy of Ireland; and he was certain, wherever they had recourse to resistance, they were impelled to it, by a sense of duty alone. The government, as he had already observed, were anxious to soothe all differences, by friendly and conciliatory advice; but it at length became necessary to examine, what the real state of the law was on this subject. If the law were clear and plain—if its operation appeared calculated to produce peace and union—then it was right that the people should know it: but, the case was greatly altered when the law carried within itself the elements of hostility; when the concord which had so long prevailed arose^ not from a knowledge of the state of the law, but from an ignorance of it. It would have been productive of the most unpleasant consequences, if it had been boldly stated, "You, the priest, have a right to bury this man—you may enter the church-yard with bell, book, and candle, and perform the service in the most offensive manner possible. "If the priest had the power to exclaim to the Protestant clergyman, "I am doing this by the authority of the government, who have told me what the law is on the subject," it would be the cause of constant feuds. This pernicious knowledge of their rights must end in continual conflicts between the parties; and therefore it was necessary, that the law should not remain in its present situation. Heretofore, the law had not been insisted on—the proceedings of the Catholic clergy had been little interfered with. Had it been otherwise, the Catholics of Ireland would be driven from the tombs of their ancestors. It was not a claim of ambition which they put forward—it was not a political privilege which they demanded. What they contended for was the offspring of those 'feelings of devotion and piety, which were inherent in the nature of man, which were wholly independent of adventitious circumstances. There was no crime so barbarous, no ignorance so profound, no philosophy so arrogant, as to deny the justice of that feeling which was implanted in the nature of man, and which induced him to look with affectionate regret to the spot where the remains of his ancestry were deposited. It was not the creature of philosophy: it was the voice of that; Being, who, when he had doomed us to the grave, inspired our hearts with the confident hope, that our affections and feelings would exist beyond that goal If, however, the Roman Catholic priest were openly told, that he might perform his ceremonies in the most ostentatious manner, such a proceeding would give alarm, and not unjustifiably, to the Protestant. It was therefore necessary that some alteration should be made in the law; and the question was, which was the best mode of dealing with the subject? There were three modes, in which the existing law might be altered. First, it would be possible to give separate burial-grounds to the Roman Catholics and the Protestants; and this idea had, in fact occurred to some Catholics of influence I but he thought, for his own part, and he was convinced the House would go along with him in the feeling, that, of all remedies for the present evil, no other so objectionable could be found. The allotment of separate burial-places would not only, like the giving separate places of education, tend to strengthen the line of demarcation already subsisting between the two religions, and to preclude for ever all hope of that union in heart and poli- tical opinion which every sincere lover of Ireland must hope for, whatever be might think as to its immediate probability, but it would go to outrage the very commonest and yet most sacred feelings of humanity. It would have the effect, the? House would see, in many cases, of separating families as to their place of burial. A husband could not be buried with his wife, a brother near his brother, a father by the side of his son. It would hardly be necessary to say more upon the impracticability of introducing such an arrangement. The next proposition then, he would suppose to be this—to make the right of interment to the dissenter in Ireland an absolute right—to have it a stern and unbending mandate upon the Protestant parson, to admit him to burial, and then to restrict the exercise of this-absolute right, so as to prevent its being used in a manner offensive to the feelings of the Protestant. This plan certainly did not carry, upon the face of it, so much positive unfitness as the former; but still the House would hardly find it to be a wise one, even if it was practicable, which he doubted: for the great difficulty in the way of such a regulation would be, not the unwillingness of the Protestant parson to give up the absolute right, but his disability to do so. By the act of Uniformity, and the canon law of the country, he was bound to perform the rite himself, and could not makeover absolute power to another to do it. This, however, was as the law now stood; the new act authorized the Parson to give the desired permission; but if it was said, that the spirit and the not he may give permission, but he shall give permission, he (Mr. P.) denied the fitness of that course, because the House would be aware, that, even for the admission of a Protestant to burial, there was nothing upon the parson mandatory. The Protestant himself could not be buried without permission from the parson. True, the parson might not withhold his permission, unless upon some satisfactory reason; but, even if he did withhold it wrongfully he could not be indicted, or made liable to a civil action for so doing; he could only be censured in the spiritual might be put, however, in a moment, in which the parson was entitled to refuse. He was not bound to bury a person who died excommunicated; or who had never been baptized; or one who had committed suicide. In fact, he was ge- nerally to judge of the time, the convenience and the fitness of the thing being done; and if the assent was not compulsory in the case of a Protestant, there were additional reasons in abundance why it should not be so in the case of a Roman Catholic. When a dissenting clergyman applied to a Protestant clergyman for permission to bury, the Protestant clergyman was bound to judge, first, whether it were one of the applicant's flock. He must ascertain whether the deceased was really a Roman Catholic or not; because there had been cases, and not very uncommonly, in which that point had been disputed. There were other circumstances to be considered. Who was the applicant, for instance? Was he, as he professed himself, a Protestant clergyman? He might be some mad fanatic Jumper, who had no right to make any such application. All these were matters of which the Protestant clergyman had to judge; and, if an absolute mandate was to be given, they would all be special matters to be provided for. Further specialties would have to be considered—the mode and manner of performing the ceremony, the tapers, and other circumstances of ostentation in the Catholic, which went beyond the modesty of the Protestant Church. But the present bill made arrangements which could hardly fail to satisfy all parties; for, as its avowed intention was, to give the dissenter the benefit of interment according to the rites of his own church, in a Protestant church-yard, the Protestant clergyman could no longer allege the difference of religion as a reason for withholding the permission to bury. He repeated that the present act was one for which the Catholics of Ireland ought to feel most grateful; for it was in fact a charter of toleration, a direct declaration, that every person in Ireland, of whatever religious belief, was entitled to interment according to the rites of his own persuasion. The law, as regarded its effects, was put into the strongest practical shape. The protestant clergyman was to be applied to. If he thought fit to refuse permission, he was bound to state in writing to the applicant, and immediately, the cause of his refusal; and moreover, forthwith to certify the same cause to his ordinary, or the bishop of his diocese, who was to forward it again, without delay, to the lord-lieutenant, or chief government of the country. Thus there Could be no reason to apprehend refusal on the existing ready ground—that of the difference of religion in the party making application; and still less would there be any danger of a light or frivolous objection, because it would be known that that objection was at once to go before authority. And further, with regard to the extent of the act, it was virtually mandatory though not mandatory in terms, for he stated it as a principle of law, and if he was wrong he might be contradicted, that where a public functionary was legally enabled to do certain acts which were for the good of the community, the law which made it lawful for him to do those acts, in fact made it his duty to do them So that, on the one hand, the act was mandatory for the clergyman stood bound, in such a case, to do that which it was lawful for him to do; and on the other hand, it would be observed, that in the provision for the service to be performed, there was no permission for the burial service generally, but specially for the service of the grave—an important point, because, in the Roman Catholic liturgy, the service of the grave—was not the burial service, the burial service involving the most pompous display of the rites of the Catholic religion; and the service of the grave being merely a short prayer and psalm, attended with no parade of ceremony whatever. Still the law, no doubt, as it would stand, might by possibility be abused. He did not deny that it might. It was possible, on the one hand, that a protestant clergyman might, in defiance of consequences, capriciously withhold his permission; and on the other hand, there might cases arise, in which the privilege granted might be taken gross advantage of. But it was not, in his view, the spirit of legislation, to make laws to meet extreme and barely possible cases. He rather preferred, in I all arrangements, to leave such cases to be dealt with as they arose and he had no fear, upon the present question, but that the law would work perfectly well.—With regard to the Protestant establishment, he was not surprised that they should feel some alarm as to the new law at first. It was certainly, up to a Certain point, the introduction of a new right and power; it was giving the Catholic church a right in the church-yard of the Protestant church; but a great deal of this objection vanished when gentlemen considered, that the law in fact only took away a right which the protestant clergyman had never exercised. If it was said that the Protestant parson had only abstained from using his right, because the ceremony performed had been performed in the private house of the Catholic, and not openly, as it would be now, in the Protestant church-yard—this might be said, and the case still would be exactly where it was before; for the very avowal conceded a principle just as strong as that he now contended for. The ceremony was performed in the private house? True; but the Protestant clergyman knew that it was performed there. He hot only knew it, but he must, of necessity, be taken by his own act, to be cognizant of it; because he could never be supposed to be permitting bodies to be interred without any ceremony of christian burial. We could not bear that the Protestant parson had been permitting human bodies to be thrown into the ground like so many dogs; he could only stand justified in his forbearing to perform the rites of christian burialaccording to his own religion, by the knowledge that those rites, according to another form, had been performed already; so that, in fact, he acknowledged that the performance of certain rites, according to the manner of the Catholic faith, gave a body that title to come into his Protestant church-yard, which, without those rites, it could not have had. The act before the House went, in principle, no further than this. There was nothing new in the effect of what it did, the novelty was only in the form. No rational Protestant parson would complain of being permitted by law to wave that right, which he had been all along accustomed to wave, with the law against him in so doing. In the confidence that his measure would satisfy all parties, he should sit down by moving that the bill be read a second time. The bill was then read a second time.