presented a petition from Inhabitants of Carlisle for a measure for regulating Burials in unconsecrated Burial grounds; and complaining of a grievance they were labouring under arising out of the operation of the law regulating burial-grounds. The petitioners stated that their old burial-ground had been closed, and that a field had been assigned to them in the neighbourhood of the town for a burial-ground. They fenced it all round, and then made a road of 20 feet wide through the field for the purpose of separating the consecrated from the unconsecrated ground—the former being for the members of the Church of England, and the latter for Nonconformists. The Bishop of the diocess, however, laboured under the impression that he was not at liberty, owing to the forms of the consecration prayer, to consecrate any portion of the ground unless it was entirely closed in; and he did not consider a road to constitute a sufficient fence or enclosure. Assuming that the graveyard which was to be consecrated was required to be separated altogether from the other parts of the field, no doubt it might be said that the right rev. Prelate was right not to consecrate it, because there was no further separation than the road, 20 feet wide. The consequence of this decision of the Bishop, whether right or wrong, had been most unfortunate, for, as the ground was not consecrated, no clergyman of the Church of England could perform the funeral service, and the result was that the service had been performed by Nonconformist clergymen. The petitioners represented this to be a great evil, and painful to their feelings. They made no charge against the right rev. Prelate; they only complained of the unfortunate result of the scruples he entertained upon the members of the Church, and they prayed that a remedy might be provided either by dispensing with the necessity of consecrating the burial-ground, or declaring that the clergy of the Church of England might lawfully read the service of the Church at any funeral, although the burial ground had not been consecrated, provided it was 809 certified as being fit for the purposes within the Burial Act, without incurring any penalty or ecclesiastical censure thereby. He (Lord Brougham) undoubtedly felt that there might be very great difficulty in regard to the mode of proceeding suggested by the petitioners; but he thought that some other remedy might be afforded without resorting to that course.
THE BISHOP OF EXETER
observed that the petition related to a subject which excited considerable attention, and the question as to these consecrations had assumed an aspect which, to say the least of it, was of a very mischievous character, and had created great difference of opinion. The present petitioners called upon their Lordships to devise a remedy for the grievance complained of, which was contrary to the existing law. The noble and learned Lord who presented the petition had very clearly stated the facts; but he was not disposed to take the noble Lord's authority without some reserve upon an ecclesiastical point as to what a Bishop ought to do, although no doubt if that noble and learned Lord had not been a very great lawyer, he might have made a very good bishop. The noble and learned Lord said that the question was as to what was the mode of relief which should be adopted. Certainly, it was not for him (the Bishop of Exeter) to answer that question; but he had seen a written opinion of an eminent lawyer who had been consulted on the point, who had no hesitation in saying that, supposing a bishop refused to consecrate the ground, as not being, in his judgment, fit for consecration, it was open for any person aggrieved to apply to the Court of Queen's Bench for a mandamus. The noble and learned Lord at the table (Lord Campbell) shook his head; but that did not niter his opinion. [Lord CAMPBELL: We certainly should not grant a mandamus, because we should have no jurisdiction.] If his noble Friend had done him the honour of permitting him to finish the sentence he was speaking, he thought he would not have indicated any dissent from it. He did not mean, it never entered his head, that a mandamus could be granted directed to the Bishop, calling upon him to consecrate the burial-ground, but that a mandamus might lie against the burial board, calling upon them to put the burial-ground in a fit state for consecration. [Lord CAMPBELL was understood to assent.] But his noble and learned Friend 810 had interrupted him by a shake of the head. They all knew how much meaning could be conveyed by a great man's, a Lord Burleigh's, shake of the head. Happily, there had since been another movement of the same head, and he rejoiced to understand this second shake as testifying that the noble and learned Lord at the table recognised the right of the Bishop to have the ground put in a proper condition before he could be called upon to consecrate it. If, therefore, any parties felt aggrieved in this case, they had a remedy in their own hands. Let them first apply for a mandamus against those who were bound to put the ground in a state for consecration, and if they found that they had no remedy under it, they might then be entitled to come to their Lordships and ask for their interference. This being a petition of a public meeting of the inhabitants of Carlisle, he assumed that some of the petitioners were not members of the Church; he had read the petition carefully, and observed that the first grievance complained of was, that the separation by a fence of the ground to be consecrated from the unconsecrated portion was offensive to the feelings of those who were not members of the Church. He must frankly say, that he could not feel sorry that such is the feeling of these persons, for he hoped it might lead them to consider why they should put themselves in such a position as to render anything done by the Church, in obedience to its own laws, offensive to them. To the Church, certainly, it was not offensive to see a space of ground set apart for the burial of those who did not belong to the Church; and he had never heard a churchman in the House or anywhere else express the slightest disapprobation of the law which provided for another place of sepulture for the Dissenters. If this provision were offensive to Dissenters, it must surely be because it was annoying to them that they were not considered members of the Church; or else, why should they complain? When the law for the first time interfered with parochial rights in respect to graveyards, and declared that the portion of the graveyard in which Dissenters were interred should not belong to the Church, the Church never indicated even a silent disapprobation of that part of the Act; and although it did not take offence at the Act declaring that Dissenters might have a separate place of interment, it was justi- 811 fied in insisting upon that separation being a real and effectual one. If, indeed, this separation had been a measure forced upon them by the Legislature, and one in the passing of which they had borne no part, then they might have a right to complain. Unless Parliament had thought fit to set aside all those laws which regulated the right of sepulture in this country, and the rights of the Church in the grounds appointed for sepulture, there must be a place of special enclosure for the burial of persons connected with the Church. The petitioners stated that the canons of the Church said nothing about consecration, and therefore they complained of consecration. Now, that a churchman should join in declaring that this rite was a thing which ought to be put an end to, and one for which there was no authority in the Book of Common Prayer and in the canons, he confessed, thoroughly amazed him. But, setting that aside, why should there be such eagerness to be buried in consecrated ground if there were really nothing in consecration? Everybody knew the decided feeling on this subject which existed in the minds of churchmen, and therefore he was wholly at a loss to understand how the petitioners, if churchmen, could make such a statement as that he had noticed. It was plain that the property in consecrated ground vested in the Church, because he found in the 88th canon, under date 1603, that it was the duty of the churchwardens "to take care that the churchyards shall be well and sufficiently repaired, fenced, and maintained with walls, rails, or pales." That was the law of the case, and it had been acted upon ever since the promulgation of the canon as a matter of course. Lyndewood (De Ecclesiis Ædificandis) on the Constitution of Winchelsea, distinctly declared that the parish was bound to build and repair the "clausuram cœmeterii;" and in Comyn's Digest, 169 (under the heading Cemetery), he found it laid down that the churchyard was "totus fundus qui infra clausuram ipsius continetur." In the statute 31 Edw. I., under the title "Rector ne prosternat arbores in cemeterio," it was laid down—Because we do understand that controversies do often grow between parsons and their parishioners touching trees growing in the churchyard, &c., forasmuch as a churchyard that is dedicated is the soil of the Church, it must needs follow that those trees which are growing in the 812 churchyard are to be reckoned among the goods of the Church.The same law had been recognised by Lord Coke in his Institutes, and although on a recent occasion the authority of that learned Judge had been much canvassed, yet when he was commenting upon a statute, having the words of the statute before him, and giving the plain meaning as a commentary, there could be no hesitation in accepting his decision. Lord Coke, in his Institutes, commenting upon this statute, called it a treatise, and said that the parishioners ought to repair the enclosure of the churchyard, because this was their duty per consuetudinem notoriam et approbatam, and the Church's conusance thereof is allowed by this Act—35 Edw. I. That was the law upon the subject, and it followed, although it might not be very satisfactory to the petitioners, that all the trees, soil, and stone of the churchyard were entirely the property of the incumbent of the parish. The averment of the petitioners was, that they had satisfied the requirements of the Act by constituting a boundary of the whole ground; and if this were intended by them to satisfy the demands of the law, he (the Bishop of Exeter) had no objection to it, if they only carried it out to its legitimate conclusion, namely, that all the thirty-five acres should be, as Lord Coke said, the soil of the Church, and the trees which might grow thereon be the goods of the Church; for less than this did not satisfy the law and statute quoted, which declared that all the ground within the fence belonged to the Church. He did not wish to force the argument to that length, but only to point out to the petitioners how very little ground of complaint they had in this matter, and what must be the inevitable conclusion to be arrived at by pressing it to its fullest extent. With respect to the Church itself, undoubtedly it was opposed to burying in unconsecrated ground, as was the practice of Dissenters. The Bishops were bound by their duty and by the laws of the Church and the requirements of the canons not to consecrate a graveyard until they were satisfied that it was fit for consecration; and his Friend the late Bishop of Carlisle had told him that he was determined to act in accordance with his duty, and not to consecrate the ground until what the canons of the Church required had been complied with. There were persons who said that the less distinction that was made between 813 Churchmen and Dissenters the better, and to a certain extent he agreed with them. Unnecessary distinctions between Churchmen and Dissenters he would never sanction. He would not say that every one who did not belong to the Church was thereby guilty of the very grievous and deadly sin of schism; but he said that schism was in itself a grievous and deadly sin. It might happen that some persons, from want of due information or from objections which they could not overcome, did not recognise the duty of seeking communion with the church. While churchmen forbore from reproaching those persons with the sin of schism, yet he must be permitted to say that no one who believed in the Church as an article of their creed could doubt that schism was a grievous sin, from which we prayed the Lord to deliver us, for He only could deliver us. The Church must and would, as she was bound to do, discharge the duty that devolved upon her, even although the course she pursued might be offensive to the feelings of some who might call themselves churchmen, although they could hardly in reality be so. But the complainants in this petition stated another objection to a fence—that a considerable expense would be thereby incurred. But the only expense necessary was, that of building a wall, which need not be a high one; and the only alternative proposed by themselves—namely, that of constructing a coachroad, would be still more expensive, as might easily be conceived by any of their Lordships who had any practical acquaintance with the cost of road-making. He trusted that the future Bishop of Carlisle, following the example of the late lamented occupant of that see, would insist on having some real fence, as the line of separation laid down in that case; and he should further say, that he hoped Parliament would not adopt the suggestion of his noble and learned Friend, and would not create a new statute, altering the law of the Church and State in reference to that subject.
§ EARL GRANVILLE
said, that, although he believed his noble and learned Friend opposite (Lord Brougham) would be eminent in any profession which he might embrace, he should not like to commit himself to the doctrine laid down by the right rev. Prelate, that his noble and learned Friend as a bishop would be "the right man in the right place." He was more ready to think that the right rev. 814 Prelate himself, if he was not a distinguished Member of the episcopal bench, would be a very eminent law Lord. With respect to the prayer of the petitioners, he would remind their Lordships that there was no power residing with the Government to interfere. During the passage of the Burial Amendment Act through Parliament last year, the Government were pressed to insert provisions that would in some way meet the case complained of. The Government felt, however, that it would be quite out of the question to give the Secretary of State power to override the ecclesiastical law in a matter of that kind. The best course, therefore, for the petitioners to adopt would be to institute a suit in the Ecclesiastical Court, if they thought the bishop had exceeded his duty. At the same time he (Earl Granville) did not think this was so entirely a question of law as had been represented, but it was one in which some discretion ought to be exercised in the application of the law. So far from agreeing with the right rev. Prelate in hoping that the new Bishop of Carlisle would follow the example which had been set him, no doubt most conscientiously, by the eminent and respected person by whom the see had just been vacated, he trusted that whoever was appointed, instead of following the course pursued by a very small minority of the episcopal bench, would take a wider and more liberal view of the matter.
said, that if an application were made upon such a subject as that to the Court of Queen's Bench, and if the Bishop submitted that the ground, according to the canons of the Church, could not be consecrated, the Court would refuse to interfere.
§ Petition to lie on the table.