HC Deb 04 August 1857 vol 147 cc997-1008

Order for considerations, as amended, read,

Several Clauses added.


said, that he rose to propose a clause with relation to private burial-grounds, the owners of which had an intention of letting them out on building leases, thus causing a frightful desecration. With a view to prevent this, he would move to insert the following clause:— That it shall and may be lawful for the vestry of any parish, in which any burial-ground closed by Order in Council, may be situate, and which does not belong to such parish, by resolution of the vestry, at a meeting called for that purpose, to purchase such burial-ground, and from the time of such purchase such burial-ground shall belong to such parish, and be subject to all the conditions affecting the burial-grounds of the parish in which the same is situate. That all the clauses and provisions contained in the Lands Clauses Consolidation Act, for the purchasing and taking of lands, and also all the provisions of the Burial Acts, for the borrowing of money, shall respectively be deemed and taken to be incorporated in this Act with respect to such burial-grounds.

Clause agreed to, and added to the Bill.


said, that, in the absence of the hon. and learned Member for Hertfordshire (Mr. Puller) he had to move the insertion of the following clause; and, in so doing, he might observe that he thought, it a very moderate way of getting rid of the differences that, at present, existed in this respect:— It shall not be necessary to erect or maintain any sort of wall or fence between the consecrated and the unconsecrated portions of any burial-ground provided under the hereinbefore recited Acts and this Act or any of them. Provided always that in the case of any burial-ground where there shall be no such wall or fence, it shall be the duty of the Burial Board having the care of such burial-ground to place, and from time to time to repair and renew, such boundary-marks of stone or iron as may be sufficient to show the boundaries of such consecrated and unconsecrated portions, respectively.

Clause agreed to and added to the Bill.


said, that in the absence of his hon. Colleague (Sir W. Heathcote), he rose to move the following Clause:— If, upon the application in writing by any Burial Board, to the Bishop of the diocese, for the consecration of a burial-ground, declared in such writing to be in a fit and proper condition for the purpose of interment according to the rites of the United Church of England and Ireland, the said bishop shall refuse to consecrate the same, it shall be lawful for such Burial Board to appeal from such refusal to the Archbishop of the province, who shall decide the matter in dispute; and if the said archbishop shall decide that the said burial-ground is in a fit and proper condition, as aforesaid, and ought to be consecrated, such decision shall be communicated in writing by the archbishop to the bishop aforesaid; and if, after such communication, the said bishop shall not, within one calendar month, consecrate the said burial-ground, the said archbishop shall, under his hand and seal, license the same for the interment of bodies according to the rites of the United Church of England and Ireland; and the licence of the said archbishop, so granted as aforesaid, shall, until such burial-ground be consecrated, operate to make lawful the use of the same as if it had been consecrated. He might, perhaps, on account of the eminence of the person concerned, be allowed to take that opportunity of referring to words which were supposed to have fallen from him—though he thought they were not the words that did fall from him— during a former debate on this subject, and which had given pain to an individual who, from his office and his personal qualities, was equally entitled to respect. He alluded to the Bishop of St. David's. Owing to some misapprehension, which must necessarily occur in the abbreviated reports of discussions in Committee, he (Mr. Gladstone) was supposed to have made himself responsible for a statement that the Bishop of St. David's had declined to obey the law, and that he ought to be coerced into obedience. He was sure the House must be aware that he never could have been guilty of such an act of rashness. He was totally unacquainted with the circumstances of the Swansea case; but, in commenting upon the observations of the hon. Under Secretary for the Home Department (Mr. Massey), and knowing nothing whatever of the law or the facts, he said, that if the law and the facts were as they were represented by the organ of the Government, and the case was one which justified interference, it appeared to him that, if a bishop disobeyed the law, such bishop ought, like everybody else, to be made to obey the law. The principle of our Constitution was, that the law was above every one; it was above the Sovereign, it was above the House of Lords, and it was above the House of Commons. The law was the only absolute supremacy acknowledged in this country, and however high any functionary might be, if he did not obey the law he ought to be made to obey it. As to giving any opinion that the bishop had disobeyed the law, he (Mr. Gladstone) stated, at the time, that he could conceive nothing more improbable; but it was his duty to accept a statement he could not controvert, and of the merits of which he could not judge. The Bishop of St. David's was, both upon personal and official grounds, entitled to the highest respect, and he (Mr. Gladstone) did not believe there was any man in the country who would give more ready submission to the law, or who would, with a more resolute determination, fulfil all the duties of a loyal subject as well as of a bishop of the Church, than the right rev. Prelate.


(who was imperfectly heard) said, that when this Bill was last under discussion, in proposing a clause of a somewhat anomalous character, which was censured by his right hon. Friend (Mr. Gladstone), and was, doubtless, open to a good deal of criticism, he stated, in justification of the course he pursued, that, in his opinion—which concurred with that of many other persons—some of the bishops had put an unreasonable construction upon the clause in the existing Burials Act, which enabled them to exercise a discretion with regard to the consecration of new burial-grounds. He stated that he thought that discretion had not, in some case, been properly exercised, and he, therefore, deemed it his duty to propose a clause which would partially remedy the grievance resulting from the refusal of bishops to consecrate burial-grounds. He also stated that one bishop had refused to consecrate a cemetery upon grounds which were utterly untenable in law, and that statement he now repeated, distinctly and advisedly. The right rev. Prelate was, however, mistaken in supposing that the clause was framed specially with reference to his case. It was framed with reference to all the cases of difficulty which had arisen, and which might hereafter arise, and he (Mr. Massey) merely alluded to the extreme case of the Bishop of St. David's as an illustration of the necessity of the clause. It would be irregular for him to refer to the mode which the right rev. Prelate had adopted of contesting the propriety of the clause, and disputing the grounds upon which it was recommended; but he (Mr. Massey) felt it due to his own character to state that he had not misled the House, that he had not suppressed facts, and that he was not ignorant of the circumstances of the right rev. Prelate's case. He had forborne to mention the right rev. Prelate's name, because he regarded his conduct as so utterly unjustifiable in point of law that he was not desirous to connect such disobedience to the law with the name of a dignitary of the Church, who, as the right hon. Gentleman (Mr. Gladstone) justly said, possessed many claims to respect; but he stated that that right rev. Prelate had refused to consecrate a burial-ground in his diocese, on the ground that the Burial Board refused to provide for the conveyance of the incumbent to the cemetery. He (Mr. Massey) maintained that that was not a sufficient reason to warrant the Bishop in withholding the rite of consecration, and his opinion was founded upon the express words of the 15 & 16 Vict. c. 85, sec. 30, which provided that burial-grounds might be consecrated by the bishop of the diocese, when the same should appear to him to be in fit and proper condition for the purpose. The criterion for the exercise of the bishop's ministerial duty was, therefore, the condition of the ground. The construction which the Bishop thought fit to put upon the clause was, however, that he was entitled to demand from the Burial Board the performance of an agreement which was entirely voluntary on their part, and to which no man of common sense could suppose that the section of the Burial Act was applicable. He (Mr. Massey) had spoken upon the authority of papers which were upon the table of the House—namely, the correspondence which had taken place between the Bishop, the Burial Board, and the Secretary of State. The Bishop was informed by the Burial Board that it was the unanimous opinion of their committee that they had not the power of providing a conveyance for the incumbent. A few days afterwards, the Board very respectfully required the Bishop to consecrate the ground, suggesting at the same time, that a licence for the use of the ground would be sufficient. To that application the Bishop replied that he must decline either to consecrate or to license the burial-ground until the committee of the Burial Board reconsidered their determination, which he believed they had adopted upon a totally erroneous view of the circumstances of the case. The Burial Board then consulted an able counsel, who said, distinctly, that the Bishop had no right to exact such a condition as that upon which he insisted. This was communicated to the Bishop, who renewed his proposition in another form, requiring the Burial Board to enter into a contract with him to commute the fees of the incumbent for a fixed sum. It was quite competent for the Bishop, the Incumbent, and the Burial Board, to enter into an arrangement of that nature; but such an arrangement was entirely permissive, and the refusal of its acceptance did not justify the Bishop in withholding the rite of consecration. It was upon that ground, alone, that the negotiation was pending. The negotiation was not completed, and it did not appear to him that it ever would be completed. On this ground, however, the Bishop had, for six months, arbitrarily withheld consecration from a cemetery which members of the Church of England had provided. He (Mr. Massey) maintained that the position assumed by the Bishop was wholly untenable in law, and that he had no right to withhold consecration unless he was satisfied that the ground of the cemetery was not in such a state as would justify the performance of the rite. But, supposing there had been any reason for withholding the rite of consecration, why did not the Bishop adopt the modified course of granting a licence? The Bishop had not granted a licence; and he (Mr. Massey) said, advisedly and distinctly, that, owing to the illegal and unjustifiable conduct of the Bishop, the inhabitants of a very large district, comprising some 40,000 persons, had for a period of six months been subjected to great inconvenience and expense. He (Mr. Massey) did not mean to say that bishops, who had required certain things to be done in burial-grounds, had not acted strictly within the letter of the law, but he did say advisedly that the conduct of the Bishop of St. David's in withholding the rite of consecration, and refusing even a temporary licence, for the reason he had alleged, was utterly illegal, and in derogation of the rights of persons who were no parties whatever to the arrangement he was desirous of effecting. It was most distressing to him to refer to a dignitary of the Church, and one, too, who was entitled to high respect, in what might appear terms of censure; but he believed that the right rev. Prelate to whom he had alluded had violated the law, and still continued to violate the law. He (Mr. Massey) would only add that he would readily assent to the clause proposed by the right hon. Member for the University of Oxford.


said, he was very unwilling to prolong the debate, but he wished to make a few observations upon matters which were in some degree personal to himself. So long ago as last Friday, a statement appeared in the columns of The Times newspaper, under the high authority of the Bishop of St. David's, which impugned his veracity, and accused him of concealing facts from the House. He would not have troubled the House on the subject if an opportunity had been afforded him of answering those imputations in the paper in which they appeared—The Times. The statement caught his eye at his club. He was very much engaged all that day, but on Friday night he wrote an answer explanatory of the facts, and he sent that letter on Friday night to the Editor of The Times, requesting its insertion. He sent the letter by messenger on Friday night from the House, but up to the present day space had not been vouchsafed him The Times to reply to the letter of the bishop impugning his character. He was the more surprised at this as his letter was dated the 31st of July, and was sent on that day, and he saw this morning in The Times a letter from the Bishop of St. David's, dated from Abergwilly Palace, South Wales, on the 1st of August; so that he could only suppose that the columns of The Times were open to right rev. Prelates, and were closed to humble individuals like himself. He thought he had some reason to complain of this, as the question was one involving his character for veracity. He felt that, after the able statement of the hon. Gentleman (Mr. Massey), it was unnecessary for him to occupy much of the time of the House in replying to the charge, or the implied charge, made against him by the right rev. Prelate. Every one who had read the letter of the right rev. Prelate was aware that he professed to suppose that he (Mr. Dillwyn) had been very much misreported; but, although the ipsissima verba he used were not given in the paper, the abstract of his speech was on the whole a very fair one, and he did not wish to complain of it. The words he actually used, however, would not bear the precise interpretation put upon them. The Bishop of St. David's said in his letter— I observed, Sir, that I believe the report of the debate in the Times to be substantially correct, with one remarkable exception. I allude to the speech attributed to Mr. Dillwyn, the Member for Swansea. Mr. Dillwyn was of course fully aware of all the main facts which I have stated, and particularly of the recent proceedings in the Swansea town-council with regard to the question of compensation to the vicar. It is, therefore, in the strictest sense of the adverb, morally impossible that in his place in the House of Commons he can have said, as he is reported to have done, that 'time for consideration had been given to the right rev. Prelate in question, and there was no prospect of an amicable settlement.' Now, he (Mr. Dillwyn) had not exactly intended to convey the impression that there was no prospect of an amicable settlement; but he did say, and he intended to say, that full time for consideration had been given to the right rev. Prelate, and that no amicable settlement had been effected. He (Mr. Dillwyn) was quite prepared to hold to that statement, and to maintain that the settlement of which the right rev. Prelate spoke in his letter as having been partially made had not been carried out, and that it was very doubtful whether the matter would be settled by the town-council of Swansea. He found from the Swansea Journal of the 11th of July, that a long discussion had taken place in the town-council respecting the vicar's fees; it was suggested that £100 a year should be awarded, but a leading member of the council objected to that amount, and proposed £75 a year. It appeared also that a claim for compensation had been put in by the parish clerk. The subject was again brought before the town council on the 25th of July, when it was urged that the proposed arrrangement with the vicar required much consideration; and it was recommended that the discussion should be postponed until the next meeting. He (Mr. Dillwyn) had heard from various correspondents that it was very doubtful whether any settlement would be arrived at between the board and the vicar, because although many parishioners who were members of the Church of England, were, anxious that such settlement should be effected, a very strong and angry feeling had been excited by the conduct of the Bishop and the incumbent. He would say, however, that the Bishop had no right to complain, for if he considered the question virtually settled, why had he not consecrated or licensed this burial-ground? For six months past the inhabitants of Swansea had been deprived of consecrated ground for interments, to which, as the Under Secretary of State had said, they had a legal right, because the Bishop chose to exercise his power illegally in order to drive the town into a compromise with the vicar. He (Mr. Dillwyn) thought the Bishop had no ground for impugning his conduct as he had done in his letter. At the same time he (Mr. Dillwyn) must express his sincere regret that he should have in any degree come into collision with a right rev. Prelate whom he had the honour of knowing, and for whom he entertained great respect. He would, however, repeat, that he did not believe any settlement-at all events, any amicable settlement—was likely to be arrived at between the Burial Board of Swansea and the vicar.


said, that as the hon. Gentleman (Mr. Massey) had repeatedly and emphatically asserted that the Bishop of St. David's had acted in flagrant violation of the law, he begged to ask whether the law was not strong enough to vindicate itself? Was it not a great grievance and wrong that a right rev. Prelate of known ability, who was highly and generally respected, should be charged by an hon. Gentleman in an official position with breaking the law, without having the opportunity of that fair trial to which the meanest man in this country was entitled?


said, he should support the clause, in the hope that it would have the effect of putting a stop to the scandalous proceedings which had occurred with respect to burial-grounds. Was it not a scandal that a prelate of the Church of England, who was warned that he was violating the law of the land, should set an example of disregarding that law? He (Mr. Hadfield) would like to know why the hon. Member for Swansea (Mr. Dillwyn) had not advised his constituents to apply to the Court of Queen's Bench for a mandamus, in order to compel the right rev. Prelate to do his duty. The fact was, it was high time the prelates were taught that so long as they received the pay of the State, they were the servants of the State, and must do the bidding of the State; and if they wanted freedom of conscience let them leave the Church and come over to those who agreed with them.


observed, that he thought these episcopal controversies most unseemly, and ought to be put a stop to. If these matters were not arranged amicably, he believed it would be necessary to impose upon the Bishops the obligation to consecrate the burial-grounds upon a, certificate from the Home Secretary that the ground was in a fit state for consecration.


said, he concurred in thinking that there was some laches on the part of the inhabitants of Swansea in not bringing the case before the Court; but this would involve great expense. In the diocese which had the misfortune to be presided over by the Bishop of Exeter, these most painful scenes were constantly taking place, so that lay members of the Church had been in some instances obliged to bury the dead; and what was remarkable, Tories of the old-fashioned school were as indignant as Dissenters in reference to the conduct of the Bishop. He approved of the clause, as reminding the Bishops, however they might lord it over the clergy, they were themselves subject to higher powers, and would not be allowed to treat the authority of the Archbishops with contempt. The clause ought to be useful as a matter of discipline, besides putting an end to the scandal.


observed that he objected to the clause. Why had not Parliament the courage to pass a direct Act for the purpose? He thought the clause in direct variance with the constitution of the Church, as the effect of it would be to call on the clergy to disobey their Bishops. He thought they were not justified in doing by indirect means what they ought to do by direct means. They ought to exercise the same authority over the Bishops as the clergy.


said, that he differed from the hon. Member. He thought it quite in accordance with the constitution of the Church that there should be an appeal to the Archbishop, who might take a calm and dispassionate view of the matter. He thought that it was doubtful under the new Act whether the Bishop would be compelled to consecrate; but he thought that the rich parish of Swansea ought to have brought the matter before the Court, and there have had it settled.

Clause agreed to.


then moved several Clauses, the object of which were to transfer the power of making regulations for burial-grounds from the Secretary of State for the Home Department to the Burial Boards. He complained of the indecent and illegal interference of the Secretary of State with the details of the burial-grounds—an interference to which he had no right, and which had given great offence in different parts of the country. In such, matters the Burial Boards ought to have their own way. He did not, however, object to Government interference in cemeteries which were purely commercial speculations, and had no representative Burial Boards.


said, that he could agree in the statement of the hon. Member for Worcestershire, that the power given to the Secretary of State had given dissatisfaction. In many cases he had been importuned to make regulations for public decency, which had been omitted by the negligence of the local authorities. The arrangement had had the most beneficial effect, and it would be most unwise to disturb it for the purpose of endowing the Burial Boards with an unlimited authority. The power given to the Secretary of State was to supervise and assist the local authorities; in some instances he had been compelled to supply their shortcomings, but usually the local authorities were desirous of obtaining his advice and support. It was most desirable that there should be uniformity amongst the various Boards throughout the country, and the experience of the last eight years had shown the beneficial operation of the existing law. For these reasons he felt called upon to oppose the whole of the Resolutions of the hon. Gentleman.


opposed the Resolution. He could not consent to take away all control from the Secretary of State. The Burial Boards had the power of making their own by-laws, which was all that could be reasonably or beneficially granted.


said, he also could not support the proposed clause. He thought, however, that the rules under which the Secretary of State acted should be modified. He strongly objected to the Secretary of State having the discretionary power of interference at his pleasure, and hoped that in a future Session the undefined power of the Secretary of State would be properly regulated by being embodied in a code. They could not undertake at present to provide for those objects by these clauses, as it ought to be done by a general Bill.

Clauses negatived.

Clause 9.


said, he felt compelled to renew his protest against the clause. His hon. and learned Friend had admitted, when he introduced the Bill that this was a very objectionable clause, but that it was intended to meet a chronic state of disagreement between the Burial Boards and the Bishop. But the clause only acted when the incumbent of the parish went against the Bishop. It could not apply in cases where the incumbent and the Bishop were on the same side. This was an authority given by Parliament to prevent unseemly disputes which depended upon the humour of the incumbent whether it should be effectual or not. The object was already attained by the authorisation of an appeal to the Archbishop, which was a regular remedy in place of an irregular one. It was said that the clause was only intended to operate while the Archbishop was deciding. But the Archbishop could not take above a day or two to ascertain whether the burial-ground was in a fit state for consecration or not. This clause was a useless authorisation to the inferior clergy to act upon their own private opinion. He felt convinced that it was impossible that such a clause should become law.


said, that the clause had already been discussed and decided upon by a large majority. It was, therefore, not in his power to abandon the clause. Ho did not agree that a matter of reference to the Archbishop could be decided in such a summary manner. Complaints had often reached Government of the delay of opening cemeteries in consequence of disputes between the authorities and the Bishop. The Archbishop has many engagements—he has both parties to hear—he might order a Commission, and he would certainly be very cautious of overruling the opinion of a suffragan bishop. So far from the appeal being a speedy remedy, it would be the cause of great delay. He only asked that during that delay the incumbents might be permitted to give Christian burial to their parishioners.


said, that there was no question before the House.


said, that he had originally objected to the clause and still did so, as it tended to bring the authorities of Church and State into collision, and he would therefore move its rejection for the purpose of raising the question.


said, it was assumed that the Archbishop would overrule the Bishop, and the clause was intended to apply in the meantime. But the effect of the clause in the event of the Archbishop agreeing with the Bishop, would be, the incumbent would go on burying in defiance of both.


said, that the clause was intended to allow burials to take place while legal disputes were going on. It was necessary to provide against injury to the public health while the disputes were going on in public courts. He thought, moreover, that if the Archbishop set himself against the wisdom of that House the more need for the clause. There ought not to be any superstitious value attached to the rite of consecration when so many of England's best-loved lay in unconsecrated ground.

Question "That Clause 9 stand part of the Bill;" put and agreed to.

Bill to be read 3° To-morrow.