Lords Sitting of 13 August 1857

MINUTES.
3a Municipal Corporations.
THE BENGAL ENGINEERS.

  EXPLANATION.
  THE EARL OF ELLENBOROUGHsaid, that it would be in their Lordships' recollection that, about a month ago, a noble and gallant Lord not now present, (Lord Melville) made some statement with respect to the discipline of the Bengal army, and in the course of that statement he mentioned that an officer had made a complaint to him, which complaint in the first instance had been made by a non-commissioned officer of the 3rd Bombay Native Infantry, that notwithstanding orders had been given to prevent officers from passing, three engineer officers of the Bengal army had forced their way through a gate after the capture of Moultan. When questioned as to something which they had under a tarpaulin, they replied that it was engineering stores; but that on the removal of the tarpaulin, it was discovered that it was, in fact, plunder. This statement struck him as very extraordinary at the time; and only two days ago he received a letter from Major Harvey Maxwell, of the Bengal Engineers, who was brigadier major of the Engineers at the siege of Moultan, requesting him (the Earl of Ellenborough), on the part of himself and his brother officers, of whom twenty-three were present
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  at the siege, to state that the matter was inquired into by the late General Whish, and on inquiry it was found that the officers in question were not guilty of the charge imputed to them. Why that communication was not made to Lord Melville he (Major Maxwell) did not know, but he had written to India, and in the meantime he begged him (the Earl of Ellenborough), with great reason, to ask their Lordships to suspend any opinion that they might form on the question, as regards the Bengal Engineers, until the particulars of the investigation were sent from India. It so happened, however, that General Whish had been dead several years, and, therefore, he was afraid that there might be some difficulty in obtaining the information that had been written for. All that he could say was, that the officers of the Bengal Engineers were well known as selected officers who had been taken into that corps after passing a competitive examination, that they had entrusted to them matters of great responsibility with respect to the whole of the public works constructed in Bengal, and he had never before heard of a single instance in which the smallest charge had been made against the integrity of any of the officers in that corps.

BURIAL ACTS AMENDMENT BILL.

  COMMITTEE.
  Order of the Day for the House to be put into a Committee read.
  Moved, That the House do now resolve itself into a Committee.
  THE BISHOP OF ST. DAVID'Srequested the indulgence which their Lordships were in the habit of extending to any Member of their Lordships' House whose character and conduct had been seriously called in question. Some charges had been recently made against him (in relation to the Swansea Burial Board), which compelled him to solicit a patient hearing for what he had to offer in his defence. Those charges had not been made in an obscure place, or by persons so insignificant that he might properly suffer them to pass by unnoticed, but had been brought in the House of Commons by an hon. Gentleman filling the important and responsible situation of one of Her Majesty's Under Secretaries of State (Mr. Massey). He was sure, therefore, that their Lordships would not attribute his anxiety to vindicate himself from these charges to any feeling of egotism, but

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  rather to the respect which was due to their Lordships. It was with great reluctance that he occupied any portion of their Lordships' time, more especially at this period of the Session, and in the present state of public business, by any matter of a personal nature, but that reluctance would be still greater if this matter, though it did most nearly concern himself individually, did not likewise involve some questions of very considerable public interest, in which not only his right rev. Brethren of the episcopal bench, but the whole body of the clergy of the Church of England, were very deeply interested. Though he had not the advantage of speaking in the presence of a very full attendance of their Lordships, yet he was happy to see some noble Lords present most competent to form a judgment on such questions as he was about to refer to, and whose attention he respectfully invited to his statement. He did not complain of the severity of the remarks which appeared to have been made on his conduct, though the motives which might reasonably have been supposed to actuate his conduct, and the object he had in view, might perhaps have been allowed a little to temper that severity, or at all events to divert from him that storm of indignation which appeared to have been excited by misrepresentations of his conduct. There was one very simple answer to be given to the charge against him, and which, he believed, through the kindness of a right rev. Prelate sitting near him (the Bishop of London), had already been given. He could repeat what that right rev. Prelate said, and protest most solemnly that, if he had been guilty of any violation of the law—for the charge against him amounted to nothing less than that he had violated the law, and wilfully disobeyed its enactments—he had done so unconsciously and unwittingly, through ignorance or error, and he was quite sure their Lordships would be disposed to give him credit for the sincerity of that declaration. But on the present occasion he could not be content to accept such a measure of their Lordships confidence, or to rest his case simply on the assertion of something only known to himself, and he trusted to be able to satisfy their Lordships that nothing had occurred throughout the whole of this transaction to warrant any such charge, but that all the facts of the case pointed directly to an opposite conclusion. He was quite willing to admit that, if the charge
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  could be proved, hardly any terms of censure could be too strong or severe, for the offence of violating the law would be aggravated by the nature of the office, in virtue of which he then addressed their Lordships. But before he proceeded to a brief statement of facts, which would enable their Lordships to appreciate his present position, he was anxious to make one observation, which he begged their Lordships to bear in mind and bear along with them through the whole of his statement, namely, that from the peculiar nature of the case he not only had the right, but it was his bounden duty, to require the clearest and most conclusive evidence to satisfy his mind that he did not possess that discretionary power with which he believed the law did invest him, before he did the act which it was supposed he was required by the law to do. It was his bounden duty to satisfy himself that in so doing he should not be acting as a free agent, but simply in a ministerial capacity, and in obedience to the law, because the nature of the case was such that if he did possess discretionary power, he was bound to take care that he did not exert that power so as to inflict injury on any one, and more particularly on a person whose rights and interests it was especially incumbent on him to protect. That which he was called on to do would have affected the rights and interests of a person so connected with him, and it would have added to the labours of a person engaged in some of the most laborious duties attaching to any parish within his diocese, without adding to his very scanty remuneration. The income of the vicar of Swansea, independent of any occasional and fluctuating fees, only amounted to the sum of £98 a year, and that small pittance had to be collected from some 1,784 individuals, and therefore their Lordships might judge whether it would not be reasonable that some deductions should be made on that account from the nominal amount. He would proceed to call their Lordships' attention to a few facts in reference to the origin of this dispute, which, he would not say, had been studiously kept out of view, but which had been passed over in silence in all the discussions which had taken place in the House of Commons on the subject. He held in his hand a copy of the published correspondence which had taken place between the Swansea Burial Board and himself. It opened with a letter addressed to him by

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  the Mayor of Swansea on behalf of the Burial Board, dated September 1, 1855—he begged their Lordships to mark the date—in which he stated that every possible exertion had been made to procure an eligible site for the new cemetery, that, through the peculiar local circumstances of the town, it had been found extremely difficult to select such a site, but that at length one had been met with which appeared to be the best that could be obtained. He added, however, that it was open to some objections, and, among others, that it would be necessary to take the funerals across bridges which, at certain states of the tide, would be open for the navigation of vessels, but that it was considered that arrangements might be made, under which no great inconvenience would be occasioned by that circumstance. Finally, the writer requested that he would inform the Board whether, under the circumstances, he would consent to consecrate a portion of the ground, asking him at the same time to favour them with his opinion upon certain points specified, and upon any other matters which might suggest themselves to him. The impression which he received from that letter certainly was that he had some voice in the question of the selection of a site; otherwise he did not know why at that stage of the business he had been consulted on the subject. He therefore communicated with the vicar; and in consequence of what he heard from him he wrote to the Burial Board upon the 12th of September, in which, among other things, he informed the Board that though he lamented the necessity for selecting a site so inconvenient he would consent to consecrate the ground on condition that some permanent arrangement should be made for the conveyance of the officiating clergyman to and from the cemetery. To that letter he received no answer whatever; no intimation, either public or private, was conveyed to him that the Board had any objection to his proposal for more than fourteen months; and it was not until the 20th of November, 1856, that he was informed by letter, and learnt for the first time, that the Board had any objection to that proposal. He called their Lordships' attention particularly to the dates, because a great outcry had been raised with respect to the inconvenience which the parishioners of Swansea had suffered from the delay, and he wished to point out that it was not exclusively upon himself that the blame should rest, on account of any inconvenience
  1510
  which might have been experienced. This was rendered more evident from the fact that in a letter of the 18th August, 1856, he reminded the Board that he was still left without an answer to his proposal respecting the conveyance of the officiating clergyman. It was not until the 20th November following that he received an answer. That letter informed him that it was the unanimous opinion of the committee that such conveyance could not be provided by the Burial Board. He was not sure from that communication whether the Board meant that they had not the power to do what he had asked, or that having the power they refused to exercise it. He pointed out this ambiguity, and on the 5th of December he received another letter which was intelligible enough. It stated that it was the unanimous opinion of the committee that the Burial Board had not the power under the Act of Parliament to provide conveyance for the officiating clergyman, and it went on to say—although one would have thought that that was explicit enough—that even if they had such power they ought not to exercise it. Now, as he had a very clear and distinct opinion as to what in equity and justice the Board ought to have done if they had the power, he confessed that that letter did not tend to inspire him with any great respect or confidence for their opinion on the point of law; for he did not know upon what authority their opinion rested, or whether it was of such a nature as would warrant him in taking a step which would be attended with so much hardship and injustice to one of his clergy. Things continued in that state until the month of March; but in the interval a little discussion took place in the House of Commons from which, owing either to an error in the Report or to some misapprehension of his own, he received an impression which confirmed him in his views with regard to the extent of his discretionary power. In March certain parishioners of Swansea, some of whom were Members of the Burial Board—acting, however, in their private capacity—had a case drawn up to be laid before counsel. It was material to observe, in estimating the value of the opinion which was thus obtained, that the case prepared was previously laid before the town clerk, the legal adviser of the Burial Board, and that it was approved by him. It was clear, therefore, that in the case full justice was done to their side of the subject. That opinion was the ground on which

  1511
  the whole question turned. Upon it he (the Bishop of St. David's) rested his case, and to it the hon. Gentleman who had called his conduct in question had also appealed. He thought, therefore, that it would bring the whole question to a very narrow point. The sum and substance of the opinion was that he had been partly wrong and partly right. That is to say, the object which he had in view was pronounced to be a very reasonable one; but it was also pointed out that he was quite mistaken with regard to the mode which he had proposed for effecting that object. Having stated that, the opinion proceeded to say that there was another perfectly easy and legal mode of accomplishing his object under the provisions of the Act of Parliament, and it advised the Town Council to adopt that course, and to make a compensation to the incumbent by the payment of a fixed sum in lien of his burial fees, which would answer the same purpose. It had been argued from that opinion that after it had been communicated to him he had but one course open to him, which was to withdraw his proposal and immediately consecrate the ground. He conceived, however, that there was another and very important question raised by that opinion, which seemed not at all to have occurred to the mind of the hon. Gentleman who thought that he was bound to take that course of proceeding. He did not mean, of course, to say that he had any right to insist upon anything that was contrary to the law, or upon anything even which, though permitted by the law, was merely an arbitrary matter or private fancy of his own; but it appeared to him to be a very different question whether his discretion did not go the length of requiring that which was not only permitted by the law, but which the law itself required—that which was declared by that opinion not only to be within the spirit and intention of the law, but to be the very object which the law had in view. The opinion declared—
  "The object of the law evidently is, that the fees to the incumbent upon burials in the cemetery should be fixed with reference to the circumstances of the case, and, where the establishment of the cemetery imposed on the incumbent the trouble or expense of a long journey for the performance of the duties, it would be only reasonable that the fees payable to him upon interments should be increased."
  It was a little hard, after such an opinion as this, showing that he had been acting in perfect accordance with the spirit and
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  intention of the law, and had been endeavouring to carry out the object of the law itself, that he should be charged with violating that law, and this, too, because he did not anticipate the hon. Gentleman's own exposition of it. This was the very first time he had seen or heard of the question being anywhere mooted, and when the opinion to which he referred was expressed in the House of Commons it appeared in the very same report, that the law laid down by the hon. Gentleman was considered so doubtful by those who heard it, that one hon. Member, who could not be supposed to be actuated by any violent prejudice in favour of bishops, because be happened to be a Dissenter, stated that he thought the Under Secretary of State was mistaken, and that the Act to which he referred would not bear such a construction. Was this, then, a case in which he (the Bishop of St. David's) was bound implicitly to act upon such an opinion in a manner which would involve consequences so important? The hon. Gentleman appeared to have stated to the House of Commons that when he (the Bishop of St. David's) had been informed on the authority of this able counsel that what he required was illegal and impracticable he had merely shifted his ground, substituting another proposition, and requiring the Swansea Burial Board to consent to that. Now he had done no such thing. He took no further step whatever in the business, nor was it possible for him to think of doing so in the existing state of things. What happened? This opinion, dated March 19, was communicated to him for the first time on the 4th of April by some of the gentlemen who had procured it, and who came over to his house to confer with him upon the subject. He informed them that he was quite sure no terms would be required by the vicar but such as were moderate and reasonable, and that they might be sure of his assent to whatever terms would suit the vicar. They, on their part, promised to lose no time in coming to an arrangement with that gentleman, and in then bringing it before the Burial Board for approval. Under these circumstances, what could he possibly do but wait for their decision? His full belief at the time was that the whole dispute was virtually at an end, and this was the feeling which prevailed in Swansea on the subject. The arrangement come to was referred to a special committee of the Burial Board appointed for the purpose,

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  and that committee made a report recommending the adoption of the proposal to which the vicar had given his consent. In the negotiation which took place the vicar receded from his first proposal by giving up £20 of the amount he originally claimed as a reasonable compensation, and offering to accept £100. Accordingly that was the sum which the committee recommended the Burial Board to give. He was exceedingly surprised to find that so long a delay had taken place before the decision of the board was arrived at. After the satisfactory report of the committee he certainly did think that the dispute was in a fair way to an amicable settlement. And how was it that that very natural expectation was disappointed, and that up to the present moment no decision had been come to by the Burial Board on this question? He was afraid that the explanation of that fact was only too easy. In the report of the discussion which took place in the House of Commons he found the Under Secretary said it appeared to him that this negotiation, as he called it, would not be completed. Such a statement seemed not only ominous but prophetic. Their Lordships knew that there were prophecies which led to, and perhaps, insured their own fulfilment, and he believed that the hon. Gentleman very well knew what he was saying, and could not have been wholly unconscious that he was verifying his prediction at the moment he uttered it. It was only that morning that he (the Bishop of St. David's) received a letter from Swansea, ending with this sentence, "If it,"—namely, the recommendation of the committee to the Burial Board—"should be rejected, the rejection will be caused solely by what passed in the House of Commons." This, he believed, was perfectly true. If this most reasonable proposal, grounded on the opinion of eminent counsel, and recommended to the Burial Board by its own committee, should be finally rejected, he believed that the signal triumph which would thereby be gained over reason, equity, justice, and possibly law (for the spirit was as precious as the letter of the law), would be due, if not exclusively, at all events mainly to the Under Secretary of State. He did not envy the hon. Gentleman the honour and glory of that triumph, but he certainly wished to do everything in his power to prevent him from achieving it. In this instance there were persons who would probably not be
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  very sorry, if the law were decided to be against him, to find him entertaining conscientious scruples as to complying with it. He was anxious to have it understood by their Lordships that nothing could be more foreign than such an idea from all his opinions and principles. When he had once ascertained that he was to act in this matter, if he acted at all, not upon his own responsibility, but upon that of the law, and in a purely ministerial capacity, he could no more hesitate, on any conscientious grounds, instantly to obey the law, than if being a trustee, he were directed by an Act of Parliament to execute a certain conveyance. He might have his own opinion on the subject, but he should never dream of setting up that opinion in opposition to the law. Some persons imagined that, when a bishop consecrated a burial-ground, he practised a sort of magical charm or incantation, by which he communicated some occult quality to the ground. Why, this consecration consisted in nothing more than a stroke of the bishop's pen, the effect of which was to authorize interment in a piece of ground according to the rites of the Church of England. It was true that the act was generally accompanied by a religious ceremony, but that ceremony formed no part of the consecration, in a legal point of view. The law did not impose upon the bishop the necessity of performing it. There was nothing to prevent him, if he thought fit—and he was not sure that it had not actually been done, though he (the Bishop of St. David's) should be sorry to omit the religious ceremony—from going to the ground in plain dress, with his riding-whip in his hand, and signing that necessary document. As soon as he signed it the ground was legally consecrated, and that was the meaning of consecration. It had been said that great inconvenience and expense had been occasioned to the parishioners of Swansea, by the course which he (the Bishop of St. David's) had taken, and that, in such a case, a private right ought to have been sacrificed to the public good. Now, it was a great happiness to him to know that, in this instance, there had been no sacrifice of public convenience to any private right. The fact was, that the burial-ground of the new church of St. Peter's was open, and was only the same distance from the centre of the town as the cemetery, without any drawbridges intervening; so that any person in the parish who desired to inter in the consecrated ground might

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  easily do so, and that fact was so notorious that it ought to have been known to the person who alleged most seriously that great inconvenience and expense had been inflicted by his misconduct in this business, on a district of 40,000 persons. The hon. Gentleman had said that this was not the only case of the kind, but that it was an extreme case. If this was so, and if their Lordships took the same view of the matter as he (the Bishop of St. David's) did, they would be of opinion that, in those other cases with which his right rev. Brethren had to deal, perfect moderation, reasonableness, and propriety, must have characterized the conduct of his right rev. Brethren. It was said that his case was so extreme, that it was necessary to insert a clause in the Bill which their Lordships were about to consider, to meet it. That clause, in his opinion, involved a most serious innovation on ecclesiastical law, and must certainly tend to sow the seeds of discord and dissension between the bishops and their clergy. He thought that it ought to be a stronger case than that which had been laid before their Lordships which would justify such an innovation. He could assure their Lordships that this affair had been to himself a source of great annoyance. It had caused much loss of time, much trouble, much obloquy, and had imperilled even private friendships which he valued; but he thought that all these things were unavoidable incidents of his official position, which he was bound to accept, when the question was, whether he should protect or abandon the rights of one of his clergy. Whatever might be the final issue of the matter, it would be a consolation to him to reflect that, however he might have mistaken the letter of the law, he had reason, equity, and justice on his side.
  EARL GRANVILLEsaid, he had no wish whatever to make any charge against the right rev. Prelate, who had, not only in his speech of that evening, but also in the letter which he had written to a newspaper on this subject, displayed much warmth with reference to the accusations that had been made against him. He had no wish whatever to interfere with respect to the statement just made by the right rev. Prelate, but as the right rev. Prelate had complained with some vehemence of the conduct of a colleague of his in another place, he would observe that the right rev. Prelate appeared to have misunderstood what had been alleged
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  against him. As far as he (Earl Granville) understood the case, the question was not whether the right rev. Prelate had taken a right or a wrong view of the law so far as the compensation of incumbents was concerned, but whether, having made a proposal which the law did not permit to be accepted, the right rev. Prelate was justified in refusing to consecrate the ground. Although the whole charge rested upon that point, the right rev. Prelate had not adverted to it. The right rev. Prelate had said, that, although he might not have acted according to the letter of the law, he had acted according to the justice and equity of the case; but that was a difficult part of the case, and one on which conflicting opinions might be held.
  THE BISHOP OF ST. DAVID'Swas understood to say in explanation, that he was under the impression that the Burial Board had accepted his proposal, and that this had caused the delay. He could pledge himself to the fact that since that time he had received no communication whatever from the Burial Board, and that consequently he could not have refused to consecrate the cemetery.
  EARL GRANVILLEwas understood to say that the explanation of the right rev. Prelate somewhat altered the aspect of the case; and if it were as the right rev. Prelate had stated, he was sure his hon. Friend the Under Secretary would gladly acknowledge the mistake into which he had fallen.
  LORD CAMPBELLsaid, he had no doubt whatever that the right rev. Prelate had acted most conscientiously in this matter, but whether he had acted according to law it would be improper for him now to give any opinion. That very question might come before the court in which he had the honour to preside, and it would only be when it came regularly before him, and he had heard both sides, that he could give any opinion upon it.
  LORD WENSLEYDALEsaid, that not being in the position of the Lord Chief Justice of the Queen's Bench, felt himself at liberty to state his opinion on the point of law. He was sure that the right rev. Prelate had been actuated by the purest motives in what he had done, but there was no provision by statute for securing compensation to the clergy in a case like this; and he therefore could not help thinking that the right rev. Prelate had taken a wrong view of the legal bearing of the question.
  Motion agreed to: House in Committee accordingly.
  Clauses 1 to 5 were agreed to.
  On Clause 6, relating to pauper burial-grounds,
  THE BISHOP OF OXFORDobjected to the institution of these pauper burial-grounds. It was easy to imagine what they would be—they would be totally neglected. He thought it quite enough that the distinction between this unfortunate class and the rest of the community should be prolonged during their lifetime, and he felt the strongest repugnance to the perpetuation in death of this enduring badge of separation. There was too great a tendency to depress to the lowest possible standard all that concerned the administration of religious rites to their poorer Christian brethren. The poor man ought to be buried where his more fortunate friends and kindred were interred, and the misery of his pauper state ought not to cling to him in his cerecloth. He would move to omit the clause.
  EARL GRANVILLEdefended the clause, pointing out to the right rev. Prelate that it contained a proviso distinctly declaring that the guardians should not he authorized to bury in these grounds "the body of any poor person who, or whose husband, wife, or next of kin, shall have expressly desired burial to take place elsewhere."
  VISCOUNT DUNGANNONopposed the clause, as he considered it would outrage the feelings of the poor. It was casting an uncalled-for stigma on the poor, and following them, as it were, beyond the grave. If the right rev. Prelate would take the sense of the Committee on the subject, he would vote with him in favour of expunging the clause.
  EARL GRANVILLEsaid, he would consider the clause before bringing up the Report, and see whether it could not be modified in the sense expressed by so many of their Lordships.
  THE BISHOP OF OXFORDsaid, he could not acquiesce in the proposal, which in the present state of the Session would be equivalent to leaving this matter in the hands of the Government. He saw no reason why the Bill should have been delayed until this late period of the Session. Some of his right rev. Brethren had come up to town to-day at great inconvenience in order to be present at the discussion of this Bill, and it was by no means certain that their duties would permit
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  them to be present when the Report was brought up. There was, indeed, nothing to inquire about, for their Lordships knew what would be the effect of the creation of this new kind of burial-ground.
  EARL GRANVILLEcould assure the right rev. Prelate that it was not the fault of the Government that Bills did not come up earlier from the other House. The right rev. Prelate's opinion of the operation of the clause differed from that of noble Lords around him, and he denied that their Lordships ought to take all their opinions from the right rev. Prelate.
  On Question, That the said clause stand part of the Bill? the Committee divided:—Content 22; Not-Content 18: Majority 4.
  Clause agreed to.

  CONTENTS.

  Cranworth, L. (L. Chancellor.)

  Calthorpe, L.

  Campbell, L.

  Foley, L. [Teller.]

  Somerset, D.

  Granard, L. (E. Granard.)

  Chichester, E.

  Hunsdon, L. (V. Falkland.)

  Clarendon, E.

  Fortescue, E.

  Monteagle of Brandon, L.

  Granville, E.

  Harrowby, E.

  Rossie, L. (L. Kinnaird.)

  Portsmouth, E.

  Saye and Scle, L.

  Somerhill, L. (M. Clanricarde.)

  Sydney, V. [Teller]

  Stanley of Alderley, L.

  Brodrick, L.(V. Midleton.)

  Sundridge, L. (D. Argyll.)

  Byron, L.

  NOT-CONTENTS.

  Canterbury Archbp.

  Oxford, Bp.

  Ripon, Bp.

  Ellenborough, E.

  Rochester, Bp.

  Harrington, E.

  St. David's, Bp.

  Nelson, E. [Teller.]

  Romney, E.

  Clements, L. (E. Leitrim.)

  Dungannon, V. [Teller.]

  Colville of Culross, L.

  Hardinge, V.

  Raglan, L.

  Redesdale, L.

  London, Bp.

  Wynford, L.

  THE EARL OF ELLENBOROUGHhoped that the result of the division would not prevent the noble Earl (Earl Granville) from making inquiry, and seeing whether the clause could not be amended on the Report.
  Clauses 7 to 10 agreed to.
  Clause 11,
  EARL FORTESCUEsaid, he could not allow the clause to pass without protesting against the provision which allowed the interment of four bodies in one common grave on the same day. He moved to substitute the word "two" for "four."
  EARL GRANVILLEsaid, that on the faith of an Act of Parliament passed five years ago the cemetery companies had made contracts which could not be carried out if the Amendment were agreed to.
  THE MARQUESS OF CLANRICARDEsuggested that the object which his noble Friend who had moved the Amendment had in view would be more effectually carried out by the omission of the proviso at the end of the clause.
  Proviso struck out; clause, as amended, agreed to.
  Clause 12,
  THE BISHOP OF ROCHESTER THE BISHOP OF ROCHESTER moved the insertion of a proviso, the effect of which would be to define more clearly the limits of consecrated and unconsecrated grounds.
  Amendment negatived; clause agreed to.
  Clause 13,
  THE BISHOP OF OXFORDsaid, that this clause provided that in cases of dispute reference should be made to the Archbishop to decide; but though it contained a provision in case the Archbishop decided against the Bishop, it contained none in case he decided against the Board. He proposed an Amendment, therefore, to remedy the defect.
  Amendment agreed to; clause, as amended, agreed to.
  Clause 14,
  THE ARCHBISHOP OF CANTERBURYopposed the clause. The objections urged by the most rev. Primate were quite inaudible, but were understood to be that the clause was opposed to the ordinary discipline of the Church.
  EARL FORTESCUEsupported the clause, which he believed would afford an immediate remedy for a pressing evil. At Torrington, in the county in which he resided, a cemetery had for twelve months past been prepared for interment in conformity with the regulations of the Secretary of State, and was in every respect fitted for consecration, but the Bishop refused to consecrate the ground. Unfortunately, the people who resided in the neighbourhood of places where lay burials took place were becoming more and more indifferent to the consecration of the ground, and even to the performance of the burial service by a priest. He thought it very undesirable to encourage a disposition to dispense with one of the most solemn and impressive services of the Church, and he hoped, therefore, that the Committee would retain the clause.
  THE BISHOP OF LONDONsaid, he had understood that the 13th clause had been substituted in the other House for the 14th, and he was therefore very much surprised to find the 14th clause retained in the Bill on the Table. A strong feeling on this subject might exist in the neighbourhood in which the noble Earl resided, but he did not think that was a sufficient reason to give this triple chain of appeal from the Bishop to the Archbishop, and ultimately to the Secretary of State.
  EARL GRANVILLEgave an explanation of the clause, which, however, was inaudible.
  LORD WENSLEYDALEsupported the clause generally.
  VISCOUNT DUNGANNONprotested against the clause, which he thought most repugnant to the principle of ecclesiastical discipline, and as subversive of the doctrine of the Church of England.
  THE EARL OF PORTSMOUTHhoped the House would not agree to expunge the clause. It would get rid of those terrible scenes which only too frequently occurred.
  THE BISHOP OF OXFORDsaid, it was impossible, at that present period of the Session, in a thin House, to do anything except with the consent of the Government. The Government had, in fact, absolute power to settle the case as they chose. It was, therefore, exceedingly desirable that it should go forth to the clergy and the laity of the Church of England, through the ordinary channels, that the clause was not a settlement of the question by the House of Lords, but a refusal on the part of Her Majesty's Government to listen to reason on the question, and a determination to settle it as they liked. During the course of the Session there had been reason to complain that the conscientious scruples of the clergy had been ridiculed and set at nought in that place, and now there seemed a settled determination on the part of Her Majesty's Government to overrule the fundamental principles of the Church by the power they possessed in that House from the state of the Session, and not to listen to what had fallen from one who was always considered entitled to the highest weight, the most rev. the Metropolitan, who had described the clause as being at variance with the fundamental principles of the Established Church. It became the Government to show a strong case in favour of the clause after such a statement. Her Majesty's Government, how-

  1521
  ever, would hear no argument, and pay no attention to anything: but by the mere force of their power as a Government were determined to carry it. It was, therefore, exceedingly desirable that it should be known out of doors, and that the body of the clergy of the Church of England and the laity of that Church should know, how the question was treated. The history of the clause was this. The evil had been admitted, and the clause was proposed as a remedy; but it had been shown that the remedy was contrary to the discipline of the Church, and it was admitted that it could not he carried out. Nevertheless, it was retained in the Bill; and it was proposed to give the Secretary of State for the Home Department a right of overruling, in an ecclesiastical matter, the decision of an Archbishop or Bishop, made under the provisions of an Act of Parliament. There was no parallel to it in ecclesiastical history. The Secretary of State had the power to direct the curate of an incumbency to do that which the Archbishop or Bishop might direct should not be done; namely, to perform a burial service in unconsecrated ground pending the appeal to the Archbishop. It would be impossible to keep up canonical discipline and obedience of the Church if such a clause were suffered to exist; and he felt confident that the House would not sanction it. He (the Bishop of Oxford) wished to see some plan adopted which would set these unfortunate quarrels at rest; but this clause violated every Church principle, and he hoped it would not be adopted.
  THE DUKE OF SOMERSETsupported the clause. He considered that, taken in connection with the other clauses of the Bill, it would have no such effect as that attributed to it by the right rev. Prelate.
  LORD CAMPBELLsaid, he thought the clause objectionable, as enabling an incumbent to act in direct opposition to the decision of his Bishop. At the same time he suggested that it should not be withdrawn, but that it should be modified so as to provide that pending the appeal it should be lawful for the incumbent to bury before consecration. It was most essential that such a power should exist, because they had heard of most lamentable consequences resulting—in the West of England especially—from there being no such power. They had been told by the highest authority that consecration did not impart any mysterious virtue to the earth, in which the ashes of the dead reposed.
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  Now certainly the present system was calculated to bring consecration into disrepute, and this clause merely enabled that to be done lawfully which ought to be done, but which at present would only be done unlawfully. When disputes arose upon these subjects they often took years to settle, and hence the necessity of some such Amendment as he had suggested, which would enable burials to take place before consecration, pending the suit. There was one case of this nature which had been pending in his court for two years; they now asked for a special verdict, the case would be taken to the Exchequer Chamber, thence to the House of Lords, and, for aught he could see, might not be terminated for seven long years to come. In the meantime it would be very hard, when such lengthened litigation occurred, that the inhabitants should be prevented from burying their dead in the cemetery which had been provided for the purpose, and which the Secretary of State had certified to be in a fit state for consecration.
  LORD WENSLEYDALEsuggested, that it should be only made lawful for the incumbent or other clergymen to bury in this unconsecrated ground "prior to the decision of the Bishop or Archbishop on the application for the consecration thereof;" and moved the insertion of these words in the clause.
  EARL GRANVILLEsaid, he was willing to accept this Amendment. With regard to what had fallen from the right rev. Prelate (the Bishop of Oxford), he could not forget that that right rev. Prelate, when it suited his purpose, did not always think it inconvenient, in a very thin House, even to attempt to reverse the decisions of a very full House. The facts, however, in the present instance were by no means such as to justify the statements he had made, for there was now a larger attendance of Peers than sometimes could be found even upon the discussion of more important Bills; and of these, too, not more than seven were connected with the Government. He objected, also, to the singularly invidious tone in which the right rev. Prelate had attempted to set the whole clergy of the Church of England against Her Majesty's Government. He (Earl Granville) did not, however, mean to argue the case against the right rev. Prelate, because, setting the laity on one side, he was not certain whether the great majority even of the clergy would not accept the

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  decision of the Government in preference to any dictum, however arbitrarily laid down, by the right rev. Prelate.
  THE BISHOP OF OXFORDsaid, that he had addressed himself to the Government, feeling that the subject was absolutely in their decision, and that, owing to the thin attendance, it was not in his power to appeal to the House of Lords. This opinion he still retained. He had tried to impress upon the Government the additional responsibility which such a state of things imposed upon them, and he was glad that the Government would not force the clause upon the House, but had agreed to accept the Amendment of the noble and learned Lord.
  THE BISHOP OF LONDONcould cot clearly understand the clause. When it spoke of the incumbent of such burial-ground did it mean the incumbent of the parish for which the grave-yard was provided, or the incumbent appointed by the Burial Board of the parish? It was taken for granted that no obstacle to consecration proceeded on the part of burial boards; hut he knew that many of those boards (some of whose members entertained conscientious convictions on the subject) were anxious that consecration should gradually drop. In the case of the Ilford Cemetery the Burial Board did not want it consecrated, and delayed the application, though he (the Bishop of London) was ready to consecrate it, and what was to be the result in such a case supposing the board did not appeal to the Archbishop? He adhered to the opinion he had before expressed on the subject, which was that the best thing to be done was to bury this clause.
  Moved, To omit "No."
  EARL GRANVILLEsaid, he had no objection to introduce words to make that part of the clause clear, by designating the clergyman appointed by the Burial Board.
  LORD WENSLEYDALEsuggested, that it should he made compulsory on burial boards to apply for consecration. He would move an Amendment to that effect on the bringing up of the Report.
  THE LORD CHANCELLORagreed with his noble and learned Friend that it should be made obligatory, as the appeal for consecration might be pending for two or three years.
  THE BISHOP OF OXFORDsaid, he should wish to see the clause amended in the way suggested by the noble and learned Lord (Lord Wensleydale) for this reason,
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  that the ground did not possess the legal character of being the perpetual resting place of the dead until it had been consecrated, and because without consecration there was nothing to prevent the ground being ploughed up.
  Amendment agreed to. Clause, as Amended, agreed to.
  Clause 18,
  THE BISHOP OF LONDONmoved an Amendment to the effect that the fees to be charged by the Burial Board in respect of services performed in unconsecrated ground provided by that Board should be identical in amount with the fees charged for the like services in consecrated ground.
  On Question.
  EARL GRANVILLEopposed the Amendment on the ground that it would be unfair towards Dissenters.
  THE BISHOP OF OXFORDsupported the Amendment.
  On Question, That "No" stand part of the Bill? the Committee divided:—Contents 12; Non-contents 14: Majority 2.
  Clause agreed to.
  Remaining clauses agreed to.

THE DANUBIAN PROVINCES OF TURKEY.

  QUESTION.
  THE MARQUESS OF CLANRICARDE THE MARQUESS OF CLANRICARDE rose pursuant to notice to ask whether Her Majesty's Government will lay upon the Table of the House, before the rising of Parliament, any Papers to show the steps that might have been taken in pursuance of the Promises and Views of the great European Powers, recorded in the Protocol No. 9 of the Conferences of Paris in 1856, and relating to the Danubian Provinces of Turkey; and calculated to

  1525
  explain the course adopted in these matters by Her Majesty's Government. The noble Marquess said that, at that time of the evening he would not trouble the House by making a long speech, but would content himself with putting his question. There was the less reason why he should detain their Lordships, because since he had put his notice on the Minutes a similar question had been asked in the other House, the answer to which was extremely satisfactory, inasmuch as it gave the assurance that, however disagreeable and threatening some of the differences which had arisen at Constantinople with regard to the settlement of the affairs of the Danubian Principalities, in pursuance of the treaty of Paris last year, there was no danger that these differences would change or affect the character of our alliance with France, which was a matter of much more importance to us than any details of the settlement of affairs in the Principalities. But, although, matters had thus changed since he had placed the notice on the paper, still he thought it would be well that, before the rising of Parliament, such official documents should be laid on the table as would show the part taken by Her Majesty's Ambassador at Constantinople and by Her Majesty's Government in the recent transactions. It was matter of notoriety that very great delay had taken place in carrying into effect the provisions of the treaty of Paris, as regarded the affairs of the Principalities. It was said, he knew not with what truth, that the interference of the Turkish functionary, the Kaimaikan, in the elections of Moldavia, had been of such a character as to render those elections absurd and futile as a fair representation of the people. It appeared that the representatives of four Powers at Constantinople had thought it necessary in consequence to discontinue diplomatic relations with the Porte. This was a grave matter for this country, since England was a party to the Treaty of Paris, and the foundation upon which that treaty was based was that there should be a fair and free expression of opinion by the representatives of the people of the Danubian provinces. The question, it was well known, was whether in the knew Government there should be a union or separation of Moldavia and Wallachia. Into that question he would not now enter—it was not the right time to discuss it. In the last Session of the last Parliament a noble and learned Lord (Lord Lyndhurst) made a
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  speech on the subject of these provinces, to which his noble Friend (the Earl of Clarendon) declined at that moment to make any reply. He hoped that before Her Majesty's Government pronounced any opinion on the union of the Provinces—whatever that opinion might be—they would wait until the real opinion of the people of the country could be ascertained. A great deal was said about Russian influence and Russian intrigue; but call it by what name they pleased, this he had always observed, that when Russia entertained designs on any country, she invariably took care to be as much as possible on the side of the people. Now it especially behaved the Government of this country to pursue that course, and to respect the feelings of the people of any country in whose concerns they were called upon to take part. He hoped that Her Majesty's Government would refrain from making any declaration upon the question whether there should be union or separation of the two Provinces until there had been a fair and free expression of opinion by the inhabitants; for it was with that object that they had appointed Commissioners, and he did not know what those Commissioners could have been about, if it were not to use their influence to obtain that fair and free expression of opinion. He hoped that Her Majesty's Government would give Parliament all the information in their power. The honour and credit of the country were pledged in this matter, and Parliament was anxious to know how far the course taken by the Government was in unison with the opinions of the people of this country. The noble Marquess concluded by putting his question.
  THE EARL OF CLARENDON: My Lords, it is perfectly true, as my noble Friend has stated, that very great delay has taken place in coming to any definite conclusion with respect to the Principalities. But my noble Friend must bear in mind that one of the principal causes of that delay was the difficulty which arose in the settlement of the Bessarabian frontier, and the determination which was properly come to, that until the Austrians troops ceased their occupation of the Provinces, which they had retained in consequence of the Bessarabian frontier not being settled, no proceedings should take place in regard to the elections,—the supposition being that they could not fairly be conducted in the presence of a foreign army. That

  1527
  difficulty was arranged at the beginning of this year; but, on account of the season, neither the Austrian troops could evacuate the Provinces, nor could the Commissioners proceed to their post until rather late in the spring; and I believe that they did not begin business before the month of May. Your Lordships are aware that, before the Commissioners left Constantinople, a firman was settled there—in the first place conferring the elective franchise, and next regulating the mode in which the elections should be conducted and the divans convoked. This was done by the Ministers of the Porte in conjunction with the representatives of the four Powers who were parties to the Treaty of Paris. My Lords, this firman appears to have been differently interpreted in the two Provinces, nor was it looked at precisely in the same light by the Commissioners. It was differently interpreted by the Kaimaikan and by the different parties into which the Principalities were unfortunately divided. Moreover, it appears that the firman, which was applicable to Wallachia, was not strictly applicable to Moldavia, on account of the different laws of that Principality. These events led to great delay, to long discussions, and to repeated references to Constantinople, where unhappily there was not much greater unanimity than in the Principalities. My Lords, with reference to the part which Her Majesty's Government have taken in this matter, I need only say that I think my noble Friend will find, when the protocols are laid upon your Lordships' table, that the conduct of Sir Henry Bulwer, Her Majesty's Commissioner at Bucharest, has been characterized by the utmost moderation, and that the advice which he has deemed it to be his duty to afford his colleagues has been strictly confined within the limits of the instructions which were issued to the Commission by the Congress of Paris. My Lords, I do not think that we should be justified in laying upon the table of the House at the present moment any of the protocols of those meetings in which six different Powers were concerned, inasmuch as they have been as yet only confidentially communicated to Her Majesty's Government, and cannot therefore be regarded as sufficiently our property to be submitted to your Lordships. Various documents have been laid before the Commission, printed copies of some of which have been transmitted to us; but we can in no way undertake to answer for their
  1528
  correctness, inasmuch as that is a point in dispute between the different parties themselves. The main point of difference between the members of the Commission has been the interpretation to be put upon the firman as applied to Moldavia. That point was referred for consideration to Constantinople, where, by the unanimous decision of the representatives of the several Powers there and the Minister of the Porte, it was determined that the same construction should be put upon the firman in Moldavia as was the case in Wallachia, with the exception of certain distinctions which would be rendered necessary by the difference prevailing between certain laws of the two Principalities. Whether there was a timely communication of this decision to the Kaimaikan upon the part of the President of the Commission, who was also the Turkish Commissioner, or whether he misunderstood or neglected it, I cannot undertake to say, because charges and countercharges have been made with respect to the matter. The fact, at all events, is, that the Kaimaikan proceeded to complete the elections in accordance with an electoral list which he himself had prepared. The representatives of France, Russia, Prussia, and Sardinia, however, acting upon instructions which they had received from their several Governments, protested against a divan so constituted, which they declared could not be looked upon as a faithful reflex of the opinions of the people. The consequence was, that the representatives of those four Powers at Constantinople demanded that the elections should; be annulled, and that fresh elections should take place. The Porte, however, was of opinion that it would not be consistent with the independence of the Sultan to yield to that demand, inasmuch as it had reference to the faithful execution of the provisions of the Treaty of Paris, with regard to the carrying into effect of which it was deemed by the Porte that any request which might be made should emanate from all the Powers which were concerned in the treaty, and not from four only of the Powers. A misunderstanding followed, which was not removed by those telegraphic despatches upon which different interpretations were put; and we received the intelligence of the interruption of diplomatic relations between the four Powers which I have mentioned and the Porte just at the moment when the Emperor of the French, accompanied by his Minister for Foreign affairs, arrived at

  1529
  Osborne. An opportunity was thus afforded to us of reviewing ft state of things which had suddenly assumed a very complicated aspect, and which might have led to events of a magnitude altogether disproportioned to the cause to which they owed their origin. Having considered that state of things, we came to the conclusion that, although there had been no scrutiny at the elections in Moldavia, and although no evidence had been obtained which in England would have been deemed sufficiently strong to justify us in declaring such elections to be void, yet that there was primâ facie proof of their irregularity, of a nature which would warrant us in recommending that they should be annulled. We felt that it was for the interest of the Porte that there should be no doubt thrown upon those elections, which would lead to the conclusion that they could not result in procuring a faithful representation of the people. We were, moreover, of opinion that the intentions of those powers who were parties to the Treaty of Paris would not be fulfilled if such a representation was not secured, and that no English Government could support elections the questionable character of which we could not altogether deny. We felt, therefore, that we should be fully justified in recommending the Sultan to annul those elections and to revise the electoral list. In taking that course we did not fail to bear in mind that the Sultan had sufficiently vindicated his own independence, by adopting the line of conduct to which I have adverted, and that he might, without derogating in the slightest degree from the dignity of his position, comply with a request which the whole of the Powers concerned in the question had concurred in making. That request embraces the simple proposal that the Treaty of Paris should be more faithfully complied with—a proposal which, as far as we can see, there will be no difficulty in agreeing to, and which, if adopted, will at once remove all those doubts which certainly do hang over the late elections in Moldavia, and which, if not dissipated, would deprive the divan of that authority which it is desirable it should possess.

  REPRESENTATIVE PEERS (IRELAND.)

    RESOLUTION.
    The Standing Order of the 3rd of July, respecting the reference to the Lord Chancellor or Lord Keeper of the Great Seal of Claims of Rights of voting at the Election
    1530
    of Representative Peers of Ireland. further
    considered, (according to order); moved, to vacate the said Order; the same was agreed to: then it was moved to resolve, That when any Petition claiming a right to vote at the Election of Representative Peers for Ireland by virtue of any Peerage in right of which a vote shall have been given and recorded at any Election of a Representative Peer, or a right to vote at such election shall have been admitted by the House of Lords, such Petition shall be referred to the Lord Chancellor or the Lord Keeper of the Great Seal of the United Kingdom, to consider and report thereupon; and the Lord Chancellor or the Lord Keeper is upon such reference to consider the matter of such Petition, and report thereupon to the House (the Lord Monteagle of Brandon): objected to; and (after debate) resolved in the affirmative; and the said Resolution declared a Standing Order, and ordered to be added to the roll of Standing Orders.

  WILLS, &c., OF BRITISH SUBJECTS ABROAD BILL.—OBSERVATIONS.
  LORD WENSLEYDALEsaid, he wished to call the attention of the noble Lord, (the Secretary of State for Foreign Affairs) to this Bill, which stood upon the notice paper for second reading, and which had for its object to render valid the wills of British subjects domiciled abroad, in case the necessary formalities in the drawing up of those instruments should have been complied with. As their Lordships were aware, there were very great difficulties in deciding the question of domicile, and that at length the principle had been settled, that if persons domiciled themselves abroad they could only dispose of their property in accordance with the law of the country in which they were domiciled. The object of the Bill was to enable persons domiciled abroad to make wills in the English form. He would suggest, however, this mode of settling the difficulty—that British subjects domiciled abroad should make wills in duplicate—the one according to the law of the country in which they were residing, and the other according to the law of England. If this were done, it was quite clear that their property would go in the manner directed. There were in Franco three forms of making wills; but the course which he suggested would obviate any difficulty, for nothing could be easier than to make duplicate wills, the one executed in the English and the other in the

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  foreign form. He begged to ask the noble Earl, the Secretary for Foreign Affairs, whether facilities might not be afforded for making this suggestion, to English subjects domiciled in France and in other foreign States through the medium of our ambassadors and consular agents?
  THE EARL OF CLARENDONsaid, he was most anxious to pay attention to any recommendations of the noble and learned Lord, and especially to suggestions bearing upon a subject to which he had paid so much attention, and which had been brought before him in his judicial capacity. He (the Earl of Clarendon) had more than once had his attention called, in his official capacity, to the very painful position in which persons were placed in consequence of the doubt thrown upon wills made in foreign countries; and it appeared to him that it had been almost impossible to decide what were the real intentions as to domicile on the part of testators; and upon this point he feared it would be almost impossible always to decide. He was disposed to regard favourably the Bill which had been introduced on this subject, because it seemed to offer a mode of escape from the difficulties in which many persons were placed. With regard to the noble and learned Lord's suggestions that his view of the mode of making wills should be communicated to British subjects residing abroad, he (the Earl of Clarendon) did not think the noble and learned Lord could have adopted a more efficient means of making known his opinions than by stating them in their Lordships' House—beyond doubt his observations would be made public and would find their way to foreign countries. At the same time he (the Earl of Clarendon) could assure the noble and learned Lord that he would give his best attention to the subject, in conjunction with his noble and learned Friend on the woolsack, and if any means could be devised for doing so he would have great pleasure in communicating the suggestion of the noble and learned Lord to British residents abroad through the medium of Her Majesty's diplomatic and consular agents.
  LORD WENSLEYDALEobserved, that his suggestion might be communicated in a short note, which need not contain more than ten lines. With regard to the Bill which had been introduced he thought it would be productive of much inconvenience, as trenching upon an established principle.
  LORD REDESDALEsuggested, that a short printed form might be prepared, which could be placed in the hands of British subjects resident abroad.
  THE EARL OF CLARENDONremarked, that the difficulty would be to supply the form in which wills should be made in France, Russia, Austria, and other countries.
  LORD WENSLEYDALEthought very short forms might be supplied, the one according to the law of the country in which British subjects were resident, and the other according to the law of this country.
  THE EARL OF CLARENDON:We could not supply a form of will that would be valid in France, or Russia, or Austria. A British subject wishing to make a will in any of those countries must, if he adopts the recommendation of the noble and learned Lord, send for an English solicitor, and also for a legal adviser of the country in which he is residing.
  House adjourned, at a quarter-past Nine o'clock, till To-morrow, half-past Ten o'clock.