HL Deb 27 June 1856 vol 142 cc2064-71

presented a petition from the inhabitants of Great Torrington, in the county of Devon, being members of the Church of England, complaining that they are deprived of any place of burial according to the rites of the Church—their churchyard having been closed by an Order in Council, and the Bishop of the diocese having declined to consecrate the burial-place provided by the burial-board of the town pursuant to the enactments of the recent Burial Acts; and praying for relief. The noble Earl said that a few weeks since a highly-esteemed citizen of Torrington died, who had been a member of the Church of England throughout his life—he was a member of the corporation also, and the mayor and corporation wished to testify their respect for him by attending the funeral in their robes of office. Their burial-ground was closed; application was made for permission to bring in the ground of the neighbouring parish, but it was refused on account of its supposed illegality, the deceased not having been a parishioner; there was no other ground than the one which the bishop had refused to consecrate; and the body was conveyed thither; there was no clergyman to read the service, and the mayor himself read the burial service in his robes. Since then burials had been performed by the clerk reading the service and the sexton making the responses. If such scenes as these were continued, the people would begin to look with doubt and distrust upon the connection of Church and State, for the Dissenting Ministers regularly discharged their duties to the members of their own persuasions, and might he led to suggest whether the presence of a clergyman was really necessary or not—a notion which he, in common with their Lordships, would be sorry to see prevail. The bishop had refused to consecrate the burial-ground because there was no inclosure within the inclosure. The noble Earl was understood to contend that the provisions of the Burial Act had been complied with. He did not for a moment impute anything to the right rev. Prelate (the Bishop of Exeter), and thought that he acted from the most conscientious motives; but there was no monopoly of conscience. The burial-board represented the inhabitants of the town generally, both Dissenters and members of the Church of England, and asserted that they had complied with the Act, and had divided the ground by fit and proper boundary. The noble Earl then read from the correspondence which had taken place between the burial-board and the Bishop of Exeter. The bishop said the canons had not been complied with; but he begged to remind their Lordships that the burial-board was the creation of Parliament, and Parliament had declared that intramural burials should not be allowed. Now Burns, in his "Commentary on Ecclesiastical Law," said, that the parishioner had a right to be buried in the parish church, unless he was excommunicated, or a criminal, or a suicide. With regard to the bishop's objection about the erection of walls, he would observe that the Church of England did not require any walls—her laity was her best defence. This feeling was very strong in the West of England, and had been so even at the time of the Monmouth rebellion, which was favoured by the population there mainly in consequence of their attachment to the Church of England, and their dislike of the king's encroachments upon it.


said, he would not trespass very long on their Lordships' time. He would not attempt to follow the noble Earl through the entire of his statements, but only deal with two or three facts, which had fixed on his recollection. He was glad to have the testimony of so excellent an authority to the existence of a strong feeling in favour of the Church in the West of England; and, in confirmation of that fact, would mention that, out of eight or ten burial-grounds which he had been called upon to consecrate within his diocese, the case in question was the only one in which there had been any objection, on the part of the burial-board, to comply with the requirements of the canon law. As bishop he felt bound to carry out that law; and, when the canon directly said that burial-grounds should be fenced, he had no other course than to require that law to be obeyed before he consecrated the ground. He had not required a wall, but a fence or railing, or any real bonâ fide separation. He had even offered to be satisfied with a sunk fence. It might be imagined that he had refused to consecrate the ground; but such was not the case. He had only required that the ground should be put into a fit state for consecration before he could consecrate it. He had made the same demand in other portions of his diocese, and had met with a ready compliance. In the case of Torrington he had suggested to the mayor to put an end to the difficulty by procuring a mandamus from the Queen's Bench to compel the burial-board to put the ground into a fit state for consecration; but that gentleman objected that it would be very disagreeable to go to law with his neighbours. All he (the Bishop of Exeter) could say was, that if in all cases where anything happened to be disagreeable to anybody's feelings an appeal was to be made to that House, their Lordships would have plenty of occupation on their hands. His simple reply upon this occasion was, that he acted upon his own sense of duty as bishop, and in the discharge of that duty he was sure he would receive the support and sympathy of all whose opinions were worth having, either in his diocese or out of it.


said, he had no wish to call in question the conscientiousness of the motives which had induced the right rev. Prelate to act as he had done, for he believed nothing but a strong sense of duty would have induced him to refuse to consecrate a cemetery prepared in pursuance of the Act of Parliament; but, at the same time, he must observe, that his determination had caused a great evil. As to the remedy which the right rev. Prelate had suggested to the mayor, he (Earl Fortescue) was not sure that a mandamus would lie—at any rate the burial-board of Torrington was elected by the whole body of inhabitants, Dissenters as well as Churchmen, and the mayor would naturally be disinclined to take a course which many of his fellow-townsmen would regard as an insult to themselves. But what had been the consequences of the existing state of things? The Dissenters were buried by their own ministers, but no member of the Church of England had received the rites of the Church. The mayor, attended by the corporation, had read the funeral service over one respected member of that body; but in other cases the clerk had represented the clergyman, and performed the service. The burial-board had done in this case what they considered to be their duty, and what the statute required. The cemetery had been so laid out by them as to lead them to believe that they were complying with the law; and, not having obtained consecration of the ground from the right rev. Prelate, the petitioners came to Parliament to ask that the law might be put into such a shape as would enable the members of the Church of England to receive the rites of burial according to the canons of the Church, and remove the scandal which afflicted the neighbourhood.


said, that this was not the first time, and he was afraid it would not be the last, that this disagreeable subject would occupy their Lordships' attention. Their Lordships must recollect that this was not a time when a few churchyards only were consecrated in the course of a year, but that now throughout almost the whole of England new cemeteries would probably have to be consecrated in the course of the next few years; because, under the provisions of the Act of 1853, inspectors had been sent out, and the result was, that many of the old burying-grounds had been condemned. It was quite evident that in a short time hardly any of the old cemeteries would remain, and that the bishops would have to consecrate new ones throughout the kingdom. Now, he (the Earl of Malmesbury) knew that the right rev. Prelate (the Bishop of Exeter) had acted most conscientiously in the present matter; nor did he say that the right rev. Prelate had not acted legally; on the contrary, his impression was, that he had acted in perfect conformity with the law. The canon provided that burying-grounds should be enclosed in some way, and this had been done in the present instance. But surely strict legal rights were not to be considered for a moment in consideration with the feelings which were abroad upon this subject. Their Lordships knew that differences of opinion existed as to the necessity of having a chapel in a cemetery. Some persons considered that they ought to be consecrated with a chapel, others without a chapel being built, and these two parties were at war. A statement had been made to him (the Earl of Malmesbury), that there was a cemetery now useless because a right rev. Prelate refused to consecrate it, and for this reason —the burial-board had thought that a set of posts erected between the two divisions of the cemetery was sufficient, but the bishop said that there must be a chain connecting the posts before the cemetery was fit for consecration; and scenes of great scandal and impropriety had taken place in consequence. He (the Earl of Malmesbury) would beg with all humility to express his opinion on this subject. Seeing that the chances were that for the next few years there would be a constant renewal of these disputes, he thought it was necessary that the conditions under which cemeteries should be consecrated should not be left entirely to the decision of the individual bishop in each case. He wished to say this, that if the bench of right rev. Prelates would agree upon some conditions upon which they were unanimous, or nearly so, they might be then submitted to some Member of Her Majesty's Government, or to respectable Members of Parliament of sufficient position, and finally embodied into an Act of Parliament, to make consecration compulsory upon these conditions being complied with. He could see no way of settling the matter, unless Parliament were to enact some conditions, or the other which should oblige the bishops to consecrate cemeteries, and thus put an end to these scandalous proceedings.


understood the noble Earl (Earl Fortescue) to say, that the whole of this cemetery was surrounded by a wall; but what the right rev. Prelate required was, that the part appropriated to the Church of England should be fenced in separately. That, he considered quite an incorrect construction of the canon; the plain intention of which was, that the burial-ground should be enclosed to prevent the inroads of animals, and for the purpose of taking proper care of the monuments that were erected in the burial-ground; but it never was in contemplation that there should be any line of demarcation drawn between one portion of the burial-ground and another. Their Lordships knew that in the old churchyards there was no distinction made between the portions of ground where Dissenters and where members of the Church of England were buried.


hoped that, as he had been personally referred to by the noble Earl, he might be allowed a few words of explanation. The noble Earl had favoured their Lordships with his interpretation of the canon, but his (the Bishop of Exeter's) duty was to act upon his own construction. He would beg the noble Earl to allow him (the Bishop of Exeter) the same right of action as was allowed to any one else in constructing a clause in an Act of Parliament. But further than this, he might add that every lawyer, every person capable of forming an opinion, with whom he had communicated, agreed with his (the Bishop of Exeter's) view of the meaning of the canon, and he had never heard that view contradicted except in this House. He did not say that it was his view merely, but his view made up after the fullest considerations of duty. He thought this was an unfortunate mode of bringing on the question, which involved really great principles. It would have been more satisfactory to have had a Bill brought in upon the subject, as the discussion of such a question on the presentation of a petition was anything but satisfactory.


said, surely the first object was to make out a case for legislation, and he thought the best way of doing so was, by petitioning the House and raising a discussion upon it.


said, he was glad to hear that the right rev. Prelate considered the subject could only be settled by legislation.


No; I never meant that.


thought the right rev. Prelate had intimated that it could not be satisfactorily considered except upon a Bill. And he was glad to be able to assure the right rev. Prelate, that a Bill for that purpose was proposed, and stood for a second reading next week.


said, he thought it most desirable that something should be done to put an end to these unfortunate disputes—for unfortunate they were, whoever was right or wrong. But the Bill of the noble Baron, however, would not settle it, for it did not at all point out what was to be done. It only took the power from the bishops, and gave it to the Secretary of State. Now, that left the matter open just as much as it was at present. No doubt legislation was necessary. In the settlement of the question, regard should be had to what was fair and reasonable with reference to conscience; but the plea of conscience could not be fairly urged against that which was necessary according to the consciences of others; and hence, those who did not themselves require a chapel could not object to a chapel being provided for others.


said that, personally, he was sorry that the noble Lord intended to bring in this Bill on Tuesday next, when he could not be present to give his opinion on it; but he thought that, considering this was the first intimation they had received of the intended measure, it was rather sharp work proposing Tuesday next for the second reading, particularly if it were of the awful character described by the noble Lord opposite (Lord Redesdale); for really if the Bill did embody the principles which had been mentioned, they were such as none of his right rev. Brethren could consent to. He thought more time should be given before the second reading. There was an observation which had fallen from the noble Earl (the Earl of St. Germans) in the course of the debate, upon which he would make a remark. They ought to bear in mind that part of the burial-board in every parish consisted of Dissenters. The Legislature had made a sort of compromise between the members of the Church of England and the Dissenters by permitting this; but whilst this was so, it should be remembered that the Church of England members of those boards took no manner of interest in the way in which Dissenters treated their part of the burying-ground, and it was manifestly the height of injustice to say that the Dissenting members of those boards should determine when the Church of England burying-ground was in a state fit for consecration.


said, he could not consider it as a true construction of an obsolete canon to raise up a wall of separation between two classes of Christians, even in their graves; and that in the construction of such a canon the spirit of charity should be considered, rather than one of a different nature, which delighted to revive rusty laws to raise invidious distinctions.


said, he supposed it would be better not to say anything further on this subject until the proposed Bill was before the House, but he could not refrain from making one observation. He believed a great portion of those who took an active part in passing the measure of 1853, supposed that they were doing something very agreeable to the Dissenters; but the measure had, so far from conciliating them, unfortunately given rise to all these controversies. As regarded the provisions respecting cemeteries, he (the Lord Chancellor) doubted whether it had not been unwise policy to make a line of demarcation between the ground appropriated to Churchmen and Dissenters; but, if it were thought right to make a line of demarcation between Churchmen and Dissenters, let this be done as unobtrusively as possible; but he believed that to provide that there should be an enclosure, and that a portion of the ground should be consecrated and a portion left unconsecrated, had created many of the difficulties which now existed. In his opinion, a short enactment providing for the consecration of the whole of the ground, thereby assimilating them as far as possible to the old parish churchyard, would be likely to meet the whole case.

Petition ordered to lie on the table.

House adjourned to Monday next.