Commons Sitting of 8 August 1855

MINUTE.
PUBLIC BILL.—3° Burials.

BURIALS BILL.
Order for Third Reading read.
Bill read 3°.
VISCOUNT EBRINGTONsaid, he wished to call the attention of the House to the inconvenience caused by the diversity of the arrangements required by different bishops as the condition of consecrating burial-grounds. It was his intention to move the addition of a clause providing that it should not be necessary for the burial board of any parish to do more than prove that a requisite line of demarcation had been made between the parts intended for the interment of members of the Church of England and others, and that no proceedings should be instituted against any minister of the Church of England on account of his having officiated at the interment in such ground after it had been approved

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by the Secretary of State, and before its consecration. He would in furtherance of his views adduce a case in point. The burial-ground of Torrington, which remained unconsecrated to that moment, because the Bishop required a four-foot wall between the Dissenters' burial-ground and the part appropriated to the members of the Church of England, and refused to consecrate, though even an iron railing or a sunk fence was offered by the burial board of that town.
Clauses brought up and read the first time.
MR. FERGUSONsaid, he could mention that a similar case occurred in Carlisle, where consecration was refused because the division proposed was a foot-path.
SIR GEORGE GREYsaid, the clause had been fully discussed on the Motion of the hon. Member for Carlisle (Mr. Ferguson), and the objection had been admitted by the Committee. There had been cases, no doubt, where a wall was insisted on by the Bishop as a condition of consecration; but the clause did not affect the provisions of the Bill, because if the ground remained unconsecrated the clergy could demand no fees for interments. He did not think the clause would effect the object in view, as a discretionary power should be left to the Bishop in the matter of consecration. It was, no doubt, most undesirable that those distinctions should exist; but the mode of separation required by the Act could not be decided by the clause of the noble Lord.
MR. HENLEYsaid, the clause would only make "confusion worse confounded," and he would not envy the Secretary of State his employment in the recess, should it pass, that of inquiring into the fitting fence and boundaries of all the church-yards in England. He (Mr. Henley) did not see what difference could arise on the subject of fences, as all that was requisite was that the distinction demanded by law should be permanently preserved; and whatever fence effected that object was, in his opinion, the best for the purpose.
SIR HENRY WILLOUGHBYsaid, he thought the question of boundary ought to be left altogether to the burial board. He did not agree with the clause.
MR. W. J. FOXsaid, he did not see why, as all met in the grave, there should be any attempt to make a distinction between the dead. The adoption of the clause would show the feeling of the House against such obstructive demarcation; and he (Mr.
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Fox) should, therefore, support it, irrespective of all considerations of ecclesiastical convenience.
MR. APSLEY PELLATTsaid, he should support the clause. The Home Office would only have to interpose in a few cases. In some places there was so strong a feeling against consecration as almost amounted to ridicule. The Dissenters would have no objection, however, to all grave yards being consecrated, if their ministers were permitted to read service over their dead. As it was, some clergymen of the Church of England objected to the body of a Dissenter being carried over consecrated ground.
MR. WIGRAMsaid, all consecrated burial-grounds were open to Dissenters; the only difference being that the Dissenters required their own ministers to pray over them. He (Mr. Wigram) was, however, of opinion that so long as there was an Established Church it was only right that the authorised officers of that Church should perform the authorised service for the dead. The separation was required for the sake of decency.
MR. J. G. PHILLIMOREsaid, he should support the clause. The distinction was not made for the sake of decency, but for the sake of intolerance.
THE ATTORNEY GENERALsaid, he would willingly agree to the clause, if it effected the object it had in view; but as it would not do so he could not support it.
MR. HADFIELDsaid, the clause was a very modest one. If a better could be introduced hon. Members ought to introduce it, and thereby put an end to ecclesiastical vagaries, such as the House had heard stated. He hoped the clause would be pressed to a division.
MR. BARROWsaid, he could not vote for the clause, because he thought it would give offence to a large portion of the community to legalise the quasi consecration of burial-grounds. He agreed that division should be made as inexpensive as possible.
MR. BELLsaid, he should support the clause, for in reality the grievance was a Churchman's, and not a Dissenter's grievance.
MR. SPOONERsaid, that he could not agree to the clause as proposed by the noble Lord, but would assent to a clause giving to the burial boards (subject to the approval of the Secretary of State) the power of deciding whether the consecrated

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portion of the burial-ground was adequately fenced off from the unconsecrated ground.
VISCOUNT EBRINGTONsaid, the really important part of the clause was that which enacted that no clergyman of the Church of England should he liable to prosecution for performing the funeral service in unconsecrated ground. He would, with the permission of the House, move that portion of the clause alone.
SIR GEORGE GREYsaid, that the difficulty would not be met by the proposition of the hon. Member for North Warwickshire (Mr. Spooner), for the burial board had now the power of deciding whether the ground was sufficiently divided, but the Bishop might still refuse to consecrate, and the noble Lord admitted that he could not be forced to do so.
VISCOUNT EBRINGTONsaid, that as part of the clause was objected to on one ground and part on another, he would press the whole.
MR. MALINSsaid, he objected to giving a power to the Secretary of State to override the authority of the Bishop) which, so long as there was an Established and Episcopal Church in England, ought to be maintained. There was a very strong feeling among a large class of persons with regard to burial in consecrated ground, and although personally he had no feeling on the subject himself, and had no desire to carry what was called intolerance beyond the grave, he should vote against the clause.
Motion made and Question put, "That the said Clause be now read a Second Time."
The House divided:—Ayes 26; Noes 29: Majority 3.
Bill passed.

CRIMINAL JUSTICE BILL— ADJOURNED DEBATE (SECOND NIGHT).
Order read, for resuming adjourned debate on Question [6th August], "That the Clause (Appeal 7 & 8 Geo. IV. c. 29, s. 72) be now read a second time."
Question again proposed, "That the said Clause be now read a second time."
Debate resumed.
Question put, and negatived.
MR. M'MAHONsaid, he should, in lieu of the clause that had just been negatived, move to substitute the following clause—
"And, for the discouragement of frivolous and vexatious informations and prosecutions under this Act, be it enacted, that it shall be lawful for any justices or court of petty sessions before
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whom any case under this Act is tried, to award costs to the defendant, with an allowance for his loss of time in case of acquittal, to be paid by the prosecutor; and also, if it shall appear to such justices or court that the charge was made from a malicious, vexatious, or frivolous motive, it shall be lawful for such justices or court to award to defendant such further sum of money, not exceeding 20 1., as to such justices or court shall seem fit, to be paid by such prosecutor as a compensation for the injury done, and in default of payment such costs and allowances and compensations may be levied by distress and sale of the prosecutor's goods."
Clause brought up, and read a first time.
THE ATTORNEY GENERALsaid, he must oppose the clause, considering that it was most objectionable, and introducing a principle utterly unknown to the law of England.
MR. WATSONsaid, he considered the tendency of such a clause would be to introduce an injurious element into the administration of the law, though he would admit that the question as to the propriety of compensating prisoners in cases of malicious or vexatious prosecutions was well worthy of consideration at some future period. He further thought that the principle on which the Bill itself was founded was bad; and that, although we were much indebted to the magistracy for the zealous and conscientious manner in which they discharged their duties, the country could scarcely have confidence in them as competent persons to be intrusted with summary jurisdiction in criminal cases.
MR. HENLEYsaid, he agreed to a certain extent that the Bill was an anomalous one; but considering the evil it was intended to meet, he was of opinion that it was a wise and judicious one. As to the clause proposed, he thought it would be of the greatest injury to the prisoner.
Motion made, and Question, "That the Clause be now read a second time," put, and negatived.
MR. M'MAHONsaid, he should now move in Clause 3 to leave out, "or larceny as a clerk or servant, or embezzlement, or obtaining property by false pretences, or attempting to obtain property by false pretences." By the clause, as it at present stood, power was given to magistrates at petty sessions to adjudicate in cases for which at present the punishment was transportation for life, a power which the quarter sessions did not possess; and he thought they ought not to have the power in the cases to which his Amendment applied.
THE ATTORNEY GENERALsaid,

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there was a large proportion of persons who at sessions and assizes pleaded guilty, and who might have done the same thing before the magistrates, and thus they underwent a long unnecessary imprisonment. He hoped the clause would be allowed to remain, though he could not help acknowledging that there were some inconveniences attending it. With regard to the Amendment, it often happened that though in law the offences of embezzlement, or larceny by a servant, or obtaining money under false pretences, were committed, yet the amounts might be very trifling, and it was well, therefore, that the magistrates in such cases should have summary jurisdiction.
MR. WATSONsaid, he should support the Amendment. The clause was opposed to the general object of the Bill. Besides, magistrates were already empowered to try in cases of larceny to the amount of 5s., and why should they not be allowed to take a plea of guilty?
MR. BAINESsaid, he was of opinion that the objections of the hon. and learned Member for Wexford (Mr. M 'Mahon) were to a certain extent well founded. In very clear and trifling cases he thought they ought not to subject the prisoner to a long imprisonment before trial, but they ought to give summary jurisdiction to the magistrates in such cases. But he thought the offence of embezzlement ought to be omitted from the clause. The case which was now occupying so much attention was, as he understood, a charge of embezzlement by bankers of securities. It was quite clear that was a case that ought not to be tried by a magistrate. Then, with regard to the next offence named—false pretences, the distinction was sometimes very fine, and he thought it better that that should be omitted. But he thought it desirable to retain the power in eases of larceny by servants, and also in cases of obtaining property from masters. Take the case of female servants. It often happened that a female servant was had up for having in her possession a small amount of property belonging to her master, and he had often thought it a cruel thing that there was no summary power in such cases, but that the girl was sent to prison, where she remained some time, before trial, and the consequence was that the poor girl was too generally ruined. He thought, if they allowed summary jurisdiction in such cases, they would do substantial justice, which was at they could accomplish; and, after all, in a matter of this nature, the consideration
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with him was, how they could attain the greatest amount of good with the least amount of evil.
MR. BARROWsaid, he should be sorry to see the clause altogether struck out. If the punishment were limited to three months, it would prevent the Magistrates adjudicating in serious cases.
MR. HENLEYsaid, he trusted that the Government would consent to omit a clause which would only have the effect of placing the magistrates In an invidious position.
Amendment, by leave, withdraw.
Bill passed.

CRIME AND OUTRAGE (IRELAND) ACT.
Order for Committee read.
House in Committee.
MR. HORSMANsaid, the Government were willing to yield to a suggestion made by hon. Gentlemen opposite, and to limit the continuance of the Bill to the 1st of July next, instead of the 31st of August.
COLONEL DUNNEsaid, the Act had never been really applicable to any portion of Ireland. It was imposed upon districts in which no outrage bad ever been committed. To pass year after year a strong measure of that kind was not the way to prevent disorder in Ireland.
The House resumed.
Bill reported, with Amendments.

LEASES AND SALES OF SETTLED ESTATES BILL.
[Progress, 6th August.] Order for Committee read.
House in Committee.
Clauses 1 to 19 inclusive, agreed to.
Clause 20.
MR. WHITESIDEsaid, he should move the omission of the clause. He wished to know whether it was consistent with justice, that in the event of an application being made to the Lords, and assented to by them, the present Bill Should never operate with respect to that application, if, by some accident the assent of the Commons had not been obtained to it? There would be neither sense nor reason in such an enactment, which would imply that Parliament could not trust the Court of Chancery, to which it gave great powers in other cases, to judge whether in a particular instance it ought not, on facts which had satisfied the House of Lords, to consider the matter. It was impossible to comprehend that principle. He did not mean to say that there should be an appeal

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from Parliament to the Court of Chancery, but Parliament meant an Act of Parliament, and not the resolution or decision of a single House of Parliament. The clause was aimed at a particular individual—Sir Thomas Maryon Wilson; and it was intended to prevent the Court of Chancery ever hereafter considering the merits of his application. A more miserable thing for Parliament to do he could not conceive.
MR. WINN KNIGHTsaid, that Sir Thomas Wilson's application had nothing whatever to do with Hampstead Heath, but had reference to some grass fields in the neighbourhood of the Finchley Road; and there was no reason why that land should not be built on, except the interest of some neighbouring proprietors. There was no justice in such a clause as the present, excluding a particular individual from the benefit of the Bill.
THE SOLICITOR GENERALsaid, Sir Thomas Wilson's Bill was rejected in consequence of a report from the Judges to the effect that what he proposed to do was inconsistent with family settlements. If the Bill had been refused on the ground that the inclosure of his own land would interfere with Hampstead Heath, then the refusal would have been most unjust; but he thought that the principle on which the present clause was founded was correct. He, however, agreed that, where an application to Parliament only failed through an accident, then the Court of Chancery should not be prevented from considering the case, and he should, therefore, propose that the clause should be amended so as to confine its application to cases where Parliament, after exercising its judgment, had refused the application.
MR. HENLEYsaid, that some of those family settlements endured for forty years, and that a proposition made at one period during that term might be objectionable, and yet at another period, under altered circumstances, very proper and deserving of consideration. He consequently thought that the clause should be so altered as to allow an application to the Court of Chancery after the lapse of a certain time.
MR. SPOONERsaid, he was opposed to the first part of the clause, but trusted that the latter part, requiring the publicity of applications, would be retained.
MR. MALINSsaid, he thought the Court of Chancery might be safely entrusted to exercise a jurisdiction in the matter. The clause was directed against Sir Thomas Wilson, and if he should apply
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to the Court of Chancery the refusal of the House of Lords would be an important element in the case, and no doubt would be duly considered by the Judge. He did not see why the case of Sir Thomas Wilson should be distinguished from all other cases. He was the mere tenant for life, not having the leasing powers which were usually found in every properly-drawn settlement. He, therefore, protested against such an exceptional species of legislation, and should vote for the omission of the clause.
MR. I. BUTTsaid, he thought that the Court of Chancery ought not to have the power of overriding the decision of Parliament, which would be the effect of the Bill. If the clause was struck out, upon the application of Sir Thomas Wilson to have the benefit of the Bill, no one could appear before the Judge in Equity to oppose on behalf of the public; the application to do so would fail, for nobody could have a locus standi. Thus the matter could be got through sub silentio.
SIR JOHN SHELLEYsaid, he should support the clause, as he thought the Court of Chancery ought not to have the power of adjudicating upon a subject with respect to which the Houses of Parliament had expressed an opinion.
MR. WATSONsaid, he would suggest that the clause should be amended by limiting the prohibition to cases in which Bills had been rejected by Parliament on "public grounds." As it stood at present the clause was most objectionable.
THE SOLICITOR GENERALsaid, that, as to divide the Committee in its present state would only lead to an adjournment, by which the other business on the paper would be thrown over, it would be better to report progress.
The House resumed.
Committee report progress.
The House adjourned at a quarter before Six o'clock.