§ SIR ALEXANDER GORDON
, in rising to call attention to the subject of Ecclesiastical and Mortuary Fees; and to move for aSelect Committee to inquire into the Law which authorizes the demanding of Mortuary Fees, and into the Ecclesiastical Fees levied by Ministers of Religion upon the occasion of Burials and the erection of Monuments in Cemeteries and Parish Church yards; and to report to the House whether any legislation is desirable with a view to their regulation or reduction,said, the subject was not one which he should desire to approach, if it could be avoided, and, indeed, few cared to do so. He brought it forward in no spirit of hostility to the Established Church; the grievance was one which pressed on members of that Church as well as upon Nonconformists. It was a civil wrong which was felt by people generally, and which ought to be remedied. That it might not be supposed that he brought the subject forward as a hobby of his own, he would read a short extract from a letter written by one who was entitled to great respect—he meant the Archbishop of York. In a letter written in September, 1880, after a great many 212 burial scandals had occurred in his Province, the Archbishop of York said that the whole subject of fees required careful consideration; that it would be desirable that a table of fees should be adjusted on one scale to be approved of by the Chancellor of the diocese; that the present state of things was extremely painful; that it produced conflicts even at the grave side; and that no time should be lost. There was also a letter from the Vicar of Sheffield, Canon Blakeney, who stated that the Clergy of the rural deanery did not object to a Select Committee to inquire into the whole question; indeed, the Vicar of Sheffield added, he might say the Clergy courted investigation. He (Sir Alexander Gordon) had also two notes from country vicars, who took the same view. Those reverend personages had seen the Bill he had brought in last year, and they stated that the Church would be under an obligation to him, if he would bring in a Bill to regulate marriage as well as burial fees. Now, there were two classes of fees connected with deaths and burials—mortuary fees and burial fees. The first, mortuary fees, were legalized so far back as the time of Henry VIII., in the early period of whose Reign such exorbitant fees were demanded by the Clergy that the Act of 1530 was passed, which prohibited the collection of any other fees than those which were specified by the Act. They were said to have been originally an offering to the Church for any possible omission by the deceased person of the dues of the Church during his lifetime. That might have been necessary in the year 1530; but he did not think Parliament would levy a duty now on such a basis. Though the Act had become non-effective by disuse in large towns, it still remained in force in many country villages in England, except with regard to Chester and some parts of Wales, which were exempted in later Reigns. Small villages and country parishes were still taxed upon the basis of that Act, and it was a great grievance. Strange to say, the fee exacted in some cases exceeded the amount authorized by the Statute. The fee was limited to 10s., but in some cases 10s. 6d. and 11s. were charged. Nonconformists especially complained of this burden, and he thought the House would agree with him that these com- 213 plaints alone constituted a case for inquiry. But the other class of fees—namely, ordinary burial fees—were far more common. To show the variety of fees that were exacted, he had a list of fees, taken at random from Acts of Parliament and Returns presented to the House, and he found that they varied from 1s. 6d. to £1 3s.—these two rates being found in adjacent parishes. In fact, they were levied without any regular system. A committee of the Salisbury Diocesan Synod, appointed to inquire into the subject, had recommended that no fees should be demanded for the burial of a parishioner, and that monumental and other fees should be reduced practically to one-fourth; but, of course, these recommendations could only be carried into effect by Act of Parliament, and that was why he asked the House to institute an inquiry—that they might have material for legislation on the question. If any hon. Member should object that this was a clerical subject with which Parliament ought not to interfere, he would remind them that Parliament had twice interfered to prohibit baptismal fees. In 1872 the late Bishop of Winchester had carried a Bill prohibiting baptismal fees; and when they remembered that baptism was not required by the State, but burial was, he thought Parliament had a much stronger ground for interference with a view to the regulation of burial fees. He would not detain the House, because the subject did not require much comment. What he wished to point out was that while these burial fees were a benefit to a few thousand clergymen, they were injurious to 25,000,000 Englishmen. The whole population, rich and poor, but mostly the poor, were affected by these fees, except persons who belonged to the Jewish community, who had their own burying-grounds. The hon. and gallant Baronet concluded by moving for the Select Committee of which he had given Notice.
§ MR. BRINTON
, in seconding the Motion, said, that the interests of both Churchmen and Nonconformists were bound up in this question. There was, he thought, fair and reasonable ground for such an equalization and reduction of burial fees as would satisfy a great number of the poorer portion of the community, especially the agricultural 214 classes. The oppressive character of burial fees, as well as of mural and other monuments, &c., in churches might be learned by consulting Returns which were in the Library of the House; and he thought they were justified in bringing this matter before the House and asking that it might be inquired into by a Committee—and the more particularly at the present time, when so many churchyards were being transferred to Burial Boards and Cemetery Companies, who, as a rule, had to take also the rights or customs previously imposed on the Church. In a large number of parishes 5s. was charged as a fee for permission to inter by the Clergy. That charge was entirely separate from the interment charge, the charge for making the grave, the sexton's labour, &c. In some parishes 7s., 8s., and even 10s. was charged for interment. He regretted to say that this fee was found to be heaviest in populous places. For instance, a servant of a friend of his had to pay 10s. interment fee for the burial of a child in Kensington. In Brompton, also, the charges were excessive. He wished to do justice to members of the Clergy, who were at times most reluctant to make the charge, on account of the poverty of those who had to pay it, but still it belonged to their office; and, indeed, he had been told by some of the Clergy that a clerical fee of 2s. 6d. in each case would be to many of their body riches itself. He thought it would be much more desirable to augment the incomes of the Clergy from some other source, and to remove these oppressive charges on burial. In regard to memorial and monumental charges, there was a strong feeling throughout the country that the option given to the clergyman to make any charge he thought proper was one that ought to be controlled by the Legislature. The subject, as a whole, might be regarded as a not unfair or unreasonable corollary to the Burials Bill which was passed last Session; and if this Committee were given, it would tend to remove some of the difficulties which prevented the Burials Bill from being all that it should be to the community. As a member of the Church of England, he supported the Motion.
Motion made, and Question proposed,
That a Select Committee he appointed to inquire into the Law which authorizes the de-
manding of Mortuary Fees, and into the Ecclesiastical Fees levied by Ministers of Religion upon the occasion of Burials and the erection of Monuments in Cemeteries and Parish Churchyards; and to report to the House whether any legislation is desirable with a view to their regulation or reduction."—(Sir Alexander Gordon.)
§ THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)
said, he ought, perhaps, to apologize for intervening in this matter, which was in no way connected with his Department. But his right hon. and learned Friend the Secretary of State for the Home Department (Sir William Harcourt), possibly because he thought that by the interest he (the Judge Advocate General) had taken in the Burials Question, he had familiarized himself with this subject, had requested him to take charge of it, and he had willingly consented to do so. He thought it was impossible for anyone who had studied the subject, or had listened to the hon. Members who had moved and seconded the Motion, not to feel that the law on this subject was in a very unsatisfactory state. He thought he might go further, and say that there was no law at all on the subject—no law in the sense of any inflexible or general rule. The fact was, that the practice of exacting fees had grown up by custom, which in time acquired the force of law. Sir Robert Phillimore, in his learned work on Ecclesiastical Law, laid down that by the Canon Law and the Common Law also it was absolutely unlawful to charge fees for the burial of parishioners. In a leading case decided in the last century, it was held that a vicar was not entitled to demand fees for burials under either law, though such fees might be exacted by custom. The Civil Courts, however, had long since arrogated to themselves the right of determining whether the custom of exacting burial fees existed in a particular parish, and whether the custom in question was of a reasonable character. Now, in many cases, the measure of burial fees was what the clergyman in each case chose to exact, and what the parishioner could well pay. In that part of the Principality of Wales with which he was specially connected, he might observe, in passing, a very peculiar custom existed. In many parts of the Principality no burial fees were demanded; but it was customary for the 216 friends of a deceased person to lay voluntary offerings upon the coffin, and in that way the clergyman was remunerated. There was no process, however, by which these offerings could be exacted. In 1852, as the House would remember, Statutes were introduced for the purpose of closing burial-grounds in urban districts and of opening cemeteries instead. Those Acts gave an incumbent power to exact such fees in connection with burials in cemeteries as he would have been entitled to exact in connection with interments in the old churchyards. In the subsequent Act, known as Marten's Act, there was no provision whatever affecting burial fees, so that in cemeteries constructed under that Act clergymen had no power to demand fees. The Burials Act had not altered the law in any way. Not only was the exacting of these fees a thing unknown at Common Law; but a clergyman had, neither by Common Law nor Canon Law, any right to exact any fee for the erection of a monument. His right to demand such a fee depended upon custom. Reference had been made to the Burials Laws Amendment Act of 1880, and, although it had only been in operation 18 months, no Act of Parliament ever passed had more completely falsified the predictions of its opponents. Thousands of burials had taken place under the Act; but there had been no appreciable decrease in the decorousness or reverence with which the funeral ceremonies were observed. That was largely due to the way in which the Clergy of the Church of England had received the measure, and had shown their desire to carry it out, not only in its letter, but in its spirit. There had, however, been some exceptional cases, such as that of the Rev. Mr. Hall, who refused to enter upon his register the burial of a Dissenter; and there had been cases brought to his knowledge, in which an incumbent had used his arbitrary power of exacting pretty nearly any burial fees he chose, as a sort of screw to compel Nonconformists to bury their deceased friends, not under the Act, but with the Service of the Church of England; and this was the way in which it had been done. A known Dissenter went to a clergyman and said—"My friend, my son, or my wife," as the case might be, "has died, and I want the burial to take place according to the Act." He asked what was the 217 fee. "Oh," said the clergyman, "If you choose to bury him or her with my Service the fee will be 5s.; if you insist upon burial under the Burial Act it will be £5." Cases of that kind had occurred, and there was no doubt that this power had been used as a sort of screw for the purpose of evading the Act. On the other hand, as he had said, there were numerous cases in which the Clergy had cheerfully conformed to the provisions of the Act, carrying them out not only in the letter, but in the spirit. In Wales it was by no means an uncommon thing when a Nonconformist was buried, for part of the service to be performed in the Church by the clergyman, and for the remainder of the service at the grave to be performed by a Nonconformist minister. He was sure that occurrences of that kind had tended very much to knit together in Christian harmony the different members of the parish. There had, however, been these exceptions, and it was exceedingly desirable, not only in the interests of the public generally, but in the interests of the Clergy and in the interests of the Church of England, that such things should be made impossible. The abuse of this arbitrary power recoiled upon those who had recourse to it, and in every interest it was desirable that it should be taken away. The proposal for a Select Committee was an exceedingly reasonable and modest one; and, on the part of the Government, he was authorized to consent to it. Of course, a Select Committee could not legislate; but it could inquire into the whole question, and he had no doubt that his hon. and gallant Friend (Sir Alexander Gordon) would be able to lay before the Committee information which might serve as the basis of their Report, which Report, he hoped, would serve as the basis of future legislation. Under these circumstances, he did not think the House would act wrongly in acceding to the Motion.
§ MR. STUART-WORTLEY
said, the hon. and gallant Member for East Aberdeen shire (Sir Alexander Gordon) had already informed the House what was the feeling of the borough which he (Mr. Stuart-Wortley) represented in this matter. On behalf of the Clergy of that borough, he was authorized to say that they were far from deprecating any such inquiry as that to which the right hon. 218 and learned Gentleman (the Judge Advocate General), on behalf of the Government, had given his consent. Generally speaking, where they had an existing inequality proved they had a primâ facie case for inquiry. There was no doubt that it was owing to that inequality that irritation had been produced. Of course, the House would see that in the speeches which had hitherto been made—he did not make this assertion in any invidious sense—only one side of the question had been stated. He would not detain them by showing that there was much which might also be said on the other side, and which an inquiry by a Select Committee would usefully elicit.
§ MR. BULWER
said, that if the appointment of the Select Committee were agreed to, it must not be taken that all hon. Members present also agreed in the views which had been expressed. He agreed with the right hon. and learned Gentleman opposite (Mr. Osborne Morgan) that burial fees were forbidden by the Canon Law; but his right hon. and learned Friend had also stated that they were not recoverable at Common Law, and he quoted the authority of Sir Robert Phillimore on the subject; but against that he (Mr. Bulwer) might place the authority of Lord S to well, who said that, although burial fees were forbidden by the Canon Law, fee offerings came to be made, and essentially became customary; and the custom was founded on reasonable considerations. It was not the fact that parishes were left to fix any rates they chose, for they had to be submitted to the Ordinary, who satisfied himself of their propriety. These payments, though not due as of common right, depended upon custom, and were enforceable at Common Law, and the right to them thus stood, in that respect, upon the same footing as other rights founded on custom. It had been said that the parson was at liberty to ask any person demanding burial what he could pay, and to decide for himself whether the person was poor or not, and regulate his demand accordingly; but that could not be done. The burial fee was regulated by custom. One authority stated 3s. 4d. as the accustomed fee for burial; but, whatever it was, no clergyman had the right to demand a higher fee than was authorized by custom; if he did so, it could be reasonably and successfully resisted. His right hon. 219 and learned Friend had mentioned a case where a parson had said that if he performed the Burial Service the fee would be 5s., but if another performed it it would be £5. Unless that other was a stranger to the parish, or not a member of the Church of England, he did not see how that could happen, because, by the last Burial Act, it was provided that the fee should be paid to the person to whom it would have been payable if the burial had taken place with the Service of the Church of England. If with the Service of the Church of England, the only fee the clergyman could ask for his own services was the customary fee, and no one else had a right to perform the services, he might deny justice to a poor man; but, except in that sense, he could not act as his right hon. and learned Friend had stated. Then, as to the fees for monuments, that was a matter strictly regulated by custom; and it was, in his opinion, very desirable that some restriction should be placed upon the erection of mural monuments and sepulchral effigies. Everyone had noticed how churchyards were often disfigured by 6-feet iron railings enclosing monuments expatiating upon the virtues of the deceased. The proper legal process to be adopted by any person desirous of erecting a monument in a church was to obtain the leave of the incumbent, who might prescribe his own reasonable terms, or demand the accustomed fees. If the incumbent asked an exorbitant fee, the person might apply for a faculty. In strict right this ought always to be done, and the Judge of the Consistory Court, if the incumbent objected to the faculty being granted, would say whether the fees demanded was such as was customary and proper under the circumstances. On payment of the proper fee, the applicant's wishes would be carried out by legal authority. He was not opposing this inquiry; but he wished to point out that there was some exaggeration in the charges made against the Clergy. He thought that they had not laid themselves open to the reflections cast upon them by hon. Members. They were quite as desirous as anyone else that some rule should be laid down by which fees might be fixed upon a definite basis.
§ THE JUDGE ADVOCATE GENERAL (Mr. OSBORNE MORGAN)
stated, in 220 explanation, that he did not mean to say that fees fixed by custom could not be enforced in the same way as payments authorized by the Common Law; but that fees varied according to custom, the result being that there was so much uncertainty that no one knew what he had to pay.
MR. EVANS WILLIAMS
said, that he should not have intervened in this debate, in which he would intervene for a few minutes only, were it not for some remarks of the two Members who spoke last. It was said an ounce of fact was worth a ton of argument. The hon. and learned Member for Cambridge shire (Mr. Bulwer) doubted the existence of a grievance; but he could give instances of excessive charges in connection with the subject under notice, so far as monuments were concerned. He had been charged 20 guineas as a fee for erecting a simple stone cross with a low railing. That railing was not a high one enclosing ground beyond the grave, but one six inches high only, on a coping, just to mark the grave of two relatives—old parishioners in a borough which he represented. On his explaining this to to the incumbent, the latter replied still that 20 guineas was his fee. He took counsel's opinion whether he could resist the charge, but was told that there was no Common Law right to erect a monument in a churchyard at all, and that it was a matter of bargain with the incumbent. In many parishes in the neighbourhood in question, and by many of his clerical friends, no fee whatever would have been charged for the monument, which was an ornament. Poor persons in the same parish were often charged £2 for a simple head-stone. All this he could prove before the Committee. He did not understand what had been said as to these fees being limited by custom, unless that was applied to fees for burial only, for which he knew of no such extortionate fees.
§ MR. BERESFORD HOPE
said, that if it was the intention of the House to appoint a Committee, the inquiry, to be of any value, ought be a searching one, so that no injustice might be done by a superficial review of the circumstances. At the same time, he feared that the proceedings before the Committee would degenerate into amusing small talk about headstones and humorous epitaphs. He fully admitted that 221 among the 15,000 Clergy there might be some gradations of opinion and of judiciousness; but, taking them as a whole, the Clergy were kindly and considerate in the performance of their duty and the exercise of their privileges. As to the question of the burial of non-parishioners, it must be remembered that no one had a right in any burial-ground where he was not a parishioner; so that whenever as, in such cases, anyone of the Clergy was asked to give up any of his rights, it must be remembered that the clergyman, in consenting, was granting an indulgence, and an allowance should accordingly be made for that fact.
§ Question put, and agreed to.
§ And, on April 3, Committee nominated as follows:—The JUDGE ADVOCATE GENERAL, Sir EDMUND LECHMERE, Sir ALEXANDER GONDON, Mr. STANLEY LEIGHTON, Mr. BRINTON, Sir HENRY FLETCHER, Mr. RICHARD, Viscount FOLKESTONE, Mr. NELSON, and Mr. BERESFORD HOPE, with power to send for persons, papers, and records.
§ Ordered, That Three be the quorum.