HC Deb 22 July 1857 vol 147 cc224-34

Order for Committee read.

House in Committee.


proposed a Clause to prevent removal of bodies from burialgrounds, save under faculty, without the order of the Secretary of State.

Clause added to the Bill.


said, he rose to propose a clause to settle the difficulties which had arisen as to the consecration of burial-grounds, with reference to the separation of consecrated from unconsecrated ground. In most cases the matter had been amicably settled, but in two or three instances bishops had exacted conditions not required by the majority of the episcopal bench. In one instance there was a case pending in a court of law upon the subject, the right rev. Prelate requiring a very marked, visible, and substantial separation between the portions of the ground allotted to churchmen and dissenters. Nor was this a singular case of the kind; for in another case the demand of the bishop was not only unreasonable, but utterly illegal, and the right rev. Prelate actually refused to obey the law, requiring a condition for consecration which the law did not authorise him to demand, viz. that a conveyance to and fro should be provided for the officiating clergyman. The result was that persons were obliged to bury relatives in unconsecrated ground. The Government had been pressed to make a provision against the recurrence of these difficulties. No doubt this was treading on delicate ground; but, on the whole, he thought the interference proposed was reasonable, because rendered necessary by the refusal of some of the bishops to obey the law. The Burial Acts to a great degree threw on the Burial Board the duty of superintending the preparation of burial-grounds; and the grievance was, that members of the Church of England were prevented by those difficulties from availing themselves of the right of burial in consecrated ground, to which by law they were entitled. Certainly there had not been many cases, but there had arisen one or two instances of difficulty: it would form an inconvenience for which it was necessary to provide a legislative remedy; and the clause proposed provided that when the Secretary of State had approved of a burial-ground, the incumbent of the parish or his curate might bury in it before consecration, without being liable to spiritual censures. The clause had been submitted to very high ecclesiastical authority, and had been approved of. Clause (In any Burial Ground provided under the powers of the Acts hereinbefore recited, or this Act respecting which one of Her Majesty's Principal Secretaries of State shall have certified that the necessary provisions have been complied with, it shall be lawful for the incumbent of such parish, or his curate, or such duly qualified person as such incumbent may authorise, to bury in such Burial Ground).

Brought up, and read 1°.


appealed to the hon. Gentleman not to press a clause which was open to the gravest objections. The hon. Gentleman had admitted that; the clause was of an extraordinary character and required an extraordinary justification. The hon. Gentleman, however, had mentioned only two cases, admitting that in almost every instance the difficulties had been adjusted by the good sense of the parties. The case in which the bishop had appeared unreasonable with respect to the character of the separation was before the Courts of law, and if the Courts of law could not deal with it efficiently the Government would have no difficulty in framing a provision by which the controversy might be brought to a conclusion. He granted that it was a serious matter, where the bishop was determined to disobey the law, and refused to consecrate until provision was made for carrying the incumbent to and fro between his residence and the burial-ground; but, although bishops were very high personages, they were under statutory obligations, and those obligations might be enforced. This clause did a great deal too much, and a great deal too little. It did too little, because it did not provide a remedy for the grievance of which complaint was made. The grievance was, that members of the Church could not obtain burial in consecrated ground, while the clause would merely enable the incumbent to bury them in unconsecrated ground. Besides, the incumbent, notwithstanding that the clause permitted him, might decline to bury in unconsecrated ground, and the bodies of members of the Church of England would remain unburied, or be buried in the same defective manner as at present. It did too much, because it abolished the whole force and effect of the Act of Uniformity, upon which our ecclesiastical system was based. The incumbent, who could not now officiate in unconsecrated ground, might officiate or not as he pleased. The bishop could not proceed against him. He would be removed from the operation of the ecclesiastical law, and might bury with the English office, or with extempore prayers, or with the rite of the Roman Catholic church. It would be placing in the hands of the clergy the power to create anarchy, so far as the rite of burial was concerned, simply because a particular bishop had refused to do his duty, and had made a demand which was unreasonable and absurd. Some other bishop might make unreasonable demands with regard to the office of baptism, and by virtue of this precedent a clause might be passed allowing the clergy to baptize as they pleased. The passing such a clause would have the effect of emancipating, if it might be so called, the clergy from canonical obedience and from the observance of the Act of Uniformity. The prelate who had made the demand for the conveyance of incumbents was known for his high character, his talents, and his experience, and if a little time were given for consideration, no doubt the dispute would be brought to an amicable settlement. He could not admit that a case for legislation of some kind might have arisen; but if it had, the remedy proposed was ineffective on the one hand and objectionable on the other. There was one other point to which he wished to advert before he sat down. Not very long ago a memorial or petition was presented in another place from 3,000 or 4,000 clergymen, complaining of the hardship of being compelled to read the burial-service over persons who had not led a Christian life or died a Christian death. It was admitted that there was some hard-ship in the compulsion, but it was thought unadvisable to give the clergy the uncontrolled discretion whether they would perform the burial-service or not, according to their own standard of sanctity in life or rectitude in doctrine. This clause would introduce a system in which it would be open to the incumbent to stand at the gate of the burial-ground, to call upon the persons who brought the body to be buried to testify to the life, opinions, and belief of the deceased, and then to make his decision whether he would bury or not. He was quite sure the clause was introduced with motives and purposes entirely different, and that it was never intended to raise the difficulties to which he had referred.


said, that the refusal of the bishop alluded to had taken place in the district which he had the honour to represent. Time for consideration had been given to the right reverend Prelate in question, but there was no prospect of an amicable settlement. The ground was about a mile from the town on one side, while the incumbent had built for himself a house about two miles distant on the other. Under these circumstances the bishop refused to consecrate, unless a conveyance to and fro for the incumbent was provided. The State arbitrarily forbad the use of the old burial-grounds, and when the parishioners bought a new one the bishop refused to consecrate unless an arbitary requirement was complied with. The case therefore stood thus:—The rich were compelled to bury their relatives at a distance, in outlying districts, and the poor to go to the cemetery, a dissenting minister reading the service over the body. That was a practical difficulty, and, in his opinion, was practically dealt with by the clause proposed. He (Mr. Dillwyn) had suggested a much stronger remedy, but was willing to accept the one proposed by the Government.


said, he had no doubt of the excellent motives which had suggested the clause, but he hoped the hon. Gentleman the Under Secretary would seriously consider the objections made to it, as it would be unwise on account of a particular grievance to legislate in a manner that would lead to still greater inconveniences. The provision would be ineffectual for the purpose for which it had been framed, as it did not at all apply to the consecration of burial-grounds. Both the cases put were infractions of the law; but he could not believe that it was necessary to legislate at all, for he thought that, upon being made acquainted with what had passed during the present discussion, the right rev. Prelate who had been referred to would see that he had been acting against the law, and the state of matters which was now complained of would not long continue. If even the grievance were not terminated, a proper remedy should be applied, not in the indirect manner proposed by the clause, but by giving greater facilities for enforcement of the law. The clause, if passed, would, if compulsory, place incumbents in the position of failing in their canonical obedience, and, if permissive only, it would place it in the power of an individual clergyman to exercise his own discretion as to the burial of any of his parishioners. He hoped the clause would not be pressed, but that the interval between this and the next Session of Parliament would be employed to remove the grievance which it was intended to remedy.


said, he hoped the hon. Gentleman the Under Secretary of State would persevere with the clause. The demands of right rev. Prelates had grown to such a height as to become positive scandals. It was strange that whenever any measure of liberality was proposed the friends of the Church declared it was dangerous to the safety of that institution. He belonged to a Church which was never in danger; but no concession for the sake of producing harmony in the community could ever be suggested without exciting this cuckoo cry that the Church of the right hon. Gentleman (Mr. Gladstone) was in danger. The right hon. Gentleman had alluded to a grievance which had been complained of in the Church for centuries, against which 3,000 of its ministers had protested—that of requiring the stereo-typed burial-service to be read over every man, no matter what his life had been or what his death, thus compelling clergymen to be the propagators of falsehood and deceit. The bishops would reform themselves just so far as the House would compel them to do so and no more, and he welcomed this clause as the beginning of a system of check upon them which he hoped would be carried further.


remarked that he thought the clause was inadequate to the evil complained of, and he hoped it would be withdrawn.


said, he also would recommend the withdrawal of the clause, and recommended the hon. Member for Sheffield (Mr. Hadfield) to speak with a little more charity of the acts of ministers of a Church to which he did not belong. The reading of the burial-service over the body of a person of bad reputation was not, as the hon. Member described it, a falsehood, but was simply the expression of a hope that the Almighty would pardon the sins which the deceased had committed in this world. With regard to the difficulties which had been experienced in the division of burial-grounds, he thought it would be much easier to define a certain portion of ground fur consecration than to permit a judicial discretion to individual clergymen.


said, he should support the clause, but wished, as a Dissenter, to protest against the tone in which the lion. Member for Sheffield had spoken of right rev. Prelates whose opinions, however different to his own, he could not doubt were sincere and conscientious. He hoped the clause would be adopted, as it was only permissive, and would, lie believed, lead to the restoration of a good understanding between the parties in the case that had been referred to.


said, it was precisely the permissive character of the clause that he objected to, because it would be conferring upon individual clergymen the power of deciding upon the character of those whom they were called upon to bury. Those clergy who felt their canonical obedience most strongly, would not avail themselves of the clause; those who did not so feel the canonical obedience would avail themselves of it, and the Church would be divided into two parties, of which those who felt their canonical obedience most strongly, would be the most unpopular. The unpopular man would lose his fees, and thus the conscientious man would suffer, while the less unselfish clergy, man would get the benefit of them. The difficulty could be more simply met than by such a clause as the present, involving as it did such great consequences, and introduced at the end of a Session, and in a thin House, when it could not be fairly discussed. It would be far better to wait till the Swansea case was decided, than to give a fluctuating power to persons varying in their opinions and talents so much as did the clergy of the Church of England. The difficulty of the enclosure, which had already been before a Committee in another place, might be met by the purchase of a railing at an almost infinitessimal price. This was the common-sense view of the question. The Swansea difficulty was a quarrel arising from the hot blood of both parties, which might soon be remedied by proper interposition.


said, that he was glad that no charge of rashness had been brought against him for proposing this clause; but on the contrary the right hon. Gentleman had admitted the facts on which he founded the clause. The fact was that in two instances, in consequence of errors of judgment on the part of right rev. Prelates, the inhabitants of certain parishes were deprived of their common-law right to be buried in consecrated ground. Surely it could not be said that Parliament was powerless to meet that evil. The objection to the clause was, first, that it did not meet the evil; and secondly, that it was of so anomalous a character as to break down ecclesiastical barriers in such a way, that no one knew what mischief would ensue. As to the first, he had said, that he hoped that the sense of Parliament being communicated to the right reverend Prelates, would be sufficient to check the scandal—for scandal it was—and to stop the evil; in its birth. He was happy to say that in most cases the proposals of the Burial Board had been met by the bishops in a conciliatory spirit; but this was not always the case, and the question was whether there was sufficient ground for legislative interference. If they thought that they could do without it, let them adopt other means; but, for himself, he thought the exigency sufficiently grave to warrant their acceding to this moderate proposition. It was true that it was not altogether an adequate remedy, but he trusted that it would be enough to work upon the good feelings of those right reverend Prelates now disposed to question the law, so as to put a stop to these unseemly disputes. It was true, that incumbents might refuse to avail themselves of these provisions; but if that happened, or if the episcopal authorities evinced a determination to throw difficulties in the way of carrying out the law, then it would be time hereafter to ask the House for more stringent powers. The course that was proposed of granting permissive powers to clergymen was not unknown, for it was only in the last Session that an Act was passed permitting the celebration of Divine Service in unconsecrated edifices. He might fairly shelter himself under that Act, when he was accused of producing a measure which would subvert the laws of the Church, and introduce a flood of evils of an unknown character.


said, that there was a common-law right to call upon a clergyman to bury, which he feared the clause was calculated to take away. He also objected to the clause for the reasons which had been so ably stated by the right hon. Member for the Oxford University. He was afraid that it would open a wide door to the introduction of forms and ceremonies of an objectionable, and it might be ridiculous character. He would suggest that the clause should be withdrawn, believing that, after what had passed, those right rev. Prelates, to whom such frequent reference had been made, would see the necessity of bowing to the opinion of Parliament.


said, that the present state of uncertainty as to the law, had given rise to serious differences in the county he represented, and on that ground, as well as on the more general grounds, he objected to postpone legislation on this subject. He also wished to call attention to the fact that the clause conferred objectionable powers upon the incumbent, while it gave no right to the parishioners. He did not believe, however, that many clergymen would avail themselves of the measure. He believed that the scruple of the Bishops referred to was untenable, although the matter admitted of a doubt. The Under Secretary, he thought, ought to have confined himself to a declaratory clause, setting forth that it should not be requisite to erect a fence between the consecrated and unconsecrated portions of burial-grounds. He hoped the clause would be withdrawn; if not, he would move that the Chairman report progress in order that the Government might have an opportunity of reconsidering the matter.


said, he must describe this as a most shabby Motion. The clause, he said, had been much discussed, and he hoped the Committee would come to a decision upon it.


said, he would withdraw his Motion, seeing that the feeling of the Committee was against it.


remarked, that one party had been left entirely out of view in the discussion which had taken place—namely, the members of the Church. The clause contained no provision securing to them what they required—consecrated ground; but he hoped that when a burial-ground was certified to be in a certain condition means would be provided for compelling the bishop to consecrate it. As the clause stood it seemed to him that, because the captain refused to do what they wanted, they were going to set his soldiers against him, and so bring about a state of anarchy. He trusted that the clause would be withdrawn with a view to the introduction of another, defining what a burial-ground should be, and compelling the bishop to consecrate it. Under the present clause it would be in the power of an incumbent to go into the unconsecrated portion of a burial-ground even when a consecrated portion existed.

The Committee divided:—Motion made and Question put, "That the Clause be read 2°." Ayes 108; Noes 69: Majority 39.


said, he would move the insertion of words compelling the bishop to consecrate any burial-ground respecting which one of the Secretaries of State had certified that the necessary provisions had been complied with.


said, he should oppose the Amendment, as opposed to the spirit of the clause. It was an exaltation of legal over ecclesiastical authority to which he could not give his consent.

Amendment withdrawn.

Mr. MASSEY moved the insertion after "the incumbent of such parish" of the words "if he sees fit," with the view of rendering the clause permissive, not compulsory.


said, he supposed that the intention of the hon. Gentleman was simply to authorize a clergyman to bury in unconsecrated ground, but he believed that this clause would go much further—it would, in fact, exempt incumbents of parishes quoad the burial-office used in unconsecrated ground from all the restraints of ecclesiastical law. He begged to ask the hon. Gentleman whether he meant to introduce a proviso to the effect that clergymen officiating in unconsecrated ground should remain subject to the law of the Church with respect to the burial-service?


replied, that in his opinion it would be extremely injudicious, to use no stronger word—to prescribe what burial-service an incumbent should use in the event of his availing himself of the clause. He took it for granted that the officiating clergyman would use the burial-service of the Church.


observed, that the Committee were at length getting a little light upon this matter. He did not think they knew before that it was intended to give the clergyman an option, not only as to burial in unconsecrated ground, but as to the nature of the service he was to use. If it pleased him to follow the usage of the Dissenters or of the Roman Catholic Church, he would be able to do so, pleading the authority of an Act of Parliament.


said, that after the statement of the Under Secretary, he saw nothing to prevent a clergyman from getting possession of a plot of ground, having it certified, and then officiating at burials either without any habiliments at all, or tricked out with excessive, and perhaps ridiculous, pomp. Such a man, indeed, if he were of an energetic and original turn of mind, might found a sepulchral seat of his own.


was understood to give notice that on a future occasion he would propose the insertion of words restricting the clergyman to the use of the burial-office of the Church.

Amendment agreed to.

On the motion of Mr. DILLWYN, the following words were added to the end of the clause—"prior to the consecration thereof."

Clause as amended ordered to stand part of the Bill.


intimated that upon the bringing up of the Report he would move either Amendments upon the clause, or its rejection altogether.


said, he should now propose a new clause to the effect that the unconsecrated part of any burial-ground which shall have been sanctioned by the Secretary of State, and respecting which the Secretary of State shall have certified that the necessary provisions have been complied with, shall immediately, upon being so certified, be deemed a part of the burial-ground of the parish or parishes for which the same has been provided.


said, he considered the clause unnecessary, its object was secured by the existing law.

Motion by leave withdrawn.


said, he begged to move to insert the following clause:— That it shall not be lawful for any bishop, previous to or as a condition for consecration, to require the production of, or to examine into, the title deeds concerning the purchase and conveyance of any burial-ground; nor shall any sum exceeding the sum of,£ be allowed in payment of the fees charged for the deed of consecration, and any other charges and expenses connected therewith. The object of the clause was to remedy an inconvenience which had been most seriously felt in the diocese of Exeter, and to prevent the public from being any longer made the victims of bishop-made law.


observed that he thought the clause was quite out of place in such a Bill.


said, he also should oppose the clause. Nothing could be more reasonable than that a bishop should see the title deeds of any burial-ground he was called to consecrate; and with respect to the consecration fees, that was a question which could not be disposed of on an occasion like the present.

Clause negatived.

Preamble agreed to.

House resumed. Bill reported; as amended to be considered on Monday next, and to be printed.