Lords Sitting of 15 June 1880

MINUTES.
PUBLIC BILLS—Committee—Burials (73–86).
Committee—Report—Drainage and Improvement of Lands (Ireland) Provisional Order* (77); Glebe Loan Acts (Ireland) Amendment * (84).
Report — Settled Land * (81); Conveyancing and Law of Property* (82).
Third Reading —Limitation of Actions* (61); Solicitors Remuneration* (63), and passed.

BURIALS BILL—(No. 73.)
(The Lord Chancellor.)
BURIALS BILL—(No. 73.)

  COMMITTEE.
  Order of the Day for the House to be put into Committee, read.
  Moved, "That the House do now resolve itself into Committee upon the said Bill."—(The Lord Chancellor.)
  EARL NELSONwished to ask the noble and learned Lord on the Woolsack, before the House went into Committee, what the position of those trusts would be in which graveyards had been specially granted to the Church of England on condition that the Church of England Burial Service only be performed therein, and where the graveyards were in the hands of trustees for the purpose of carrying out the donor's intention? He (Earl Nelson) knew of such a case occurring last year, and would like to hear the noble and learned Lord's opinion upon the matter.
  THE BISHOP OF CARLISLEalso wished to remark that they all knew that burial had two sides—-one religious, and the other sanitary. The Bill proposed to deal with the religious side. Now, whatever happened with the Bill, whether it was passed in its present form, or with Amendments, or whether it was not passed at all, he thought, after what had taken place, those with

  3
  country parishes would find themselves in this position. Hitherto there had been practically no difficulty in getting people buried, because the owners of land and the clergy had been very kind and liberal in giving land for the enlargement of churchyards. But he thought he did not at all misrepresent the case when he said that, for evil or for good, they would not meet with that kind of liberality in future, and he wished to ask what they were practically to do with regard to getting people buried in country parishes? There were many places where churchyards should be shut up, and if the Home Office did shut them up, there would be no possibility of finding a place for the burial of the dead. This opened up a question of great practical importance, and it was obvious that the sanitary side of the problem should have their serious attention. By remedying what was considered the religious difficulty, they might be intensifying a sanitary difficulty, which was of infinitely greater importance.
  THE LORD CHANCELLORconfessed that he did not share the anticipations of the rev. Prelate with regard to additional grants of land. He did not believe that any sensible effect would be produced with respect to those gifts. There were few among the landlords of England willing to grant land for burial purposes purely and narrowly denominational, who would not also grant it for purposes of a wider character. With regard to the larger question, as to the possibility of supplying new churchyards and new cemeteries when the old ought to be shut up, his own opinion was that, by passing this Bill, their Lordships would remove a very considerable obstruction out of the way of that operation, because the sanitary question would be no longer mixed up with questions of a quite different character, and there would be no jealousy of any steps which might be taken for real sanitary reasons on account of any controversial matter. He, therefore, thought that not only the existing Acts might be much more readily worked and put into operation, but also that the Government would find it more easy to review those existing Acts than when the religious difficulty stood in the way. He was not authorized to give any pledge on the part of the Government as to the time at which they would under-
  4
  take to review the existing Acts as to burial grounds; but he might confidently assure their Lordships that Government would not lose sight of that important subject. With regard to the Question of the noble Earl (Earl Nelson), he was glad to say that the noble Earl's views and his were precisely the same. It had been urged by some persons as an objection to the Bill, that it did not throw open to the Church the burial grounds of other religious denominations; but the Bill did not interfere with private burial grounds at all; it dealt only with those in which the parishioners or inhabitants generally had right of burial. He was not aware of there being at the present time any obstacle whatever to the creation of private trusts as to burial grounds for members of the Church of England any more than there was to the creation of such private trusts for the Baptists, or Wesleyans, or any other religious community; and if a trust had been created, as described by his noble Friend, he had no difficulty in stating his opinion that this Bill would in no way affect it.
  LORD FORBESexpressed regret if he had done wrong in not making his proposal that the Bill be referred to a Select Committee, which would have postponed the evil as long as he possibly could. It was a serious thing to deprive the Church of England of her rights and privileges, and give over her heritage to her enemies. He called their Lordships' attention to the fact that members of the Liberation Society regarded the churchyards as outworks of the Church of England, and did not conceal the certainty that when they had carried those outworks it was their intention to attack the citadel itself. He begged the Government, and the noble and learned Lord on the Woolsack, by the love he bore the Church, in a spirit not of anger but of sorrow, in the interest of the Church of England, to withdraw the Bill. He would admit that the noble Lords who had brought on the measure were actuated by the best spirit; but what they proposed would be most prejudicial to the interests of that Church.
  Motion agreed to; House in Committee accordingly.
  Preamble postponed.
  Clause 1 (After passing of Act, notice may be given that burial will take place

  5
  in churchyard or graveyard without the rites of the Church of England).
  On The Motion of The LORD CHANCELLOR, Amendments made, in page 1, line 7, by omitting ("person"), and substituting the words ("relative, friend, or legal representative"); and in line 9, for ("twenty-four") substituting ("forty-eight"); and after ("writing") adding ("in the form or to the effect of Schedule A annexed to this Act").
  On the Motion of The Earl FORTESCUE, Amendment made, in line 9, after ("writing") by inserting ("plainly signed with the name and address of the person giving it").
  THE EARL OF MOUNT EDGCUMBE,in rising to move, as an Amendment, the insertion in line 13, after ("or place") of the words—
  "Where there is no unconsecrated burial ground or cemetery in which the parishioners or inhabitants hare rights of burial,"
  said, it had been urged that that Bill sought to establish religious equality for all denominations in the matter of interment; but much depended on how that expression was to be interpreted. If it meant that all were to have facilities for the use of their religious services at burials, that was a principle which all should support. But if it meant that all religious sects in this country, and others who did not belong to any religious communion whatever, were to have in future concurrent rights which were never exercised before in the property of the Church of England, that was a principle which must carry them far beyond the churchyards, and that was a claim which, in the interests of justice and constitutional principle, the Legislature was bound to resist. He admitted that the Dissenters had a grievance—although some thought it was a sentimental grievance—which could not be ignored. On the other hand, if that Bill passed, it would entail on the Church of England a grievance which many of the clergy had described as intolerable, while many others would feel it most keenly. The House was, therefore, placed in this difficulty, that it must consider which of these two grievances was the more serious one; and, as far as individuals and as laymen were concerned, he could not come to any other conclusion than that the exist-
  6
  ing grievance of the Dissenters was the more real grievance of the two. If Churchmen felt that it would be a grievance to them if a service different from that of their own Church should be held in their consecrated ground, although it did not affect their own interment or the interment of their friends, surely their feeling would be a much more painful one if they knew, as Dissenters did, that neither they nor their friends could be interred without a service in which they did not concur, or without a minister whom they did not recognize. He would, therefore, admit that the grievance of the Dissenter was the greater; but he deprecated the provisions of the Bill being enforced in places where a grievance did not exist. He held that they should only be applied in cases of necessity where there was no uneonse-crated ground. He thought it was a dangerous principle not to give a man his rights; but it was a more dangerous principle to go beyond these.
  Amendment moved, in page 1, line 13, after ("place") to insert—
  ("Where there is no unconsecrated burial ground or cemetery in which the parishioners or inhabitants have rights of burial.")—[The Earl of Mount Edgcumbe.)
  THE LORD CHANCELLORsaid, that the laity of the Church of England had a very great respect for the clergy, and he could not help thinking that if the clergy themselves viewed this matter with more dispassionate eyes, there would be little objection on the part of the laity. He quite agreed with the noble Earl (the Earl of Mount Edgcumbe) that the pressure of the grievance was much less severe where there were cemeteries and burial grounds other than the churchyards; but he still thought it would be very unwise to adopt the Amendment, which would tend to interfere with the beneficial operation of the measure as a settlement of the controversy. It would at once draw a line between parish and parish throughout the Kingdom. In one parish a Nonconformist would be able to avail himself of the provisions of the Act. In an adjoining parish a Nonconformist would not be able to do so. If the Amendment were adopted, all the controversies which it was sought to put an end to would continue; and he thought that if it was open to no other objection, that ought to be a suffi-

  7
  cient objection to it. The right rev. Prelate (the Bishop of Carlisle) had expressed a fear that the operation of the Bill as it stood might check the application of the provisions of the Burial Acts, for the creation of new public burial grounds, where they were wanted. He did not share that opinion; but the Amendment of the noble Earl would really have that effect, because Dissenters would be likely to object to the creation of new unconsecrated burial grounds, when it would have the effect of excluding them from the liberty in the use of the churchyard given them by this Bill. They would always feel it a grievance, if the Services of the Church were forced upon them when they desired to be buried with their friends.
  THE ARCHBISHOP OF YORKsaid, the truth of the matter was, that this distinction between parish and parish would not be created to a greater extent than at present by the Bill—it already existed. What the Legislature now proposed to do was this. The Legislature had, at the expense of the ratepayers, provided equal burial grounds to meet the wants of both parties, and, while that legislation was to remain in force, it was proposed in this Bill to pass a Proviso to the effect that, besides burying in their own unconsecrated grounds, the Dissenters should use the consecrated grounds of the Church as much as they liked. Unless the Amendment were agreed to, there was great danger that the consecrated grounds would be very speedily filled up. Already a tendency in that way had been displayed, and sufficient time had not elapsed for ancestral associations to gather round the ordinary cemeteries. Even people who did not believe there was much in consecration would have their friends buried in consecrated ground, thinking that, if there did happen to be anything in it, they would do them greater honour by putting them there. This would result in a confiscation of Church property. The present law with regard to the cemeteries answered very well, and it was going too far to attempt to apply to them arguments which were only good as regarded churchyards, which stood on a totally different footing.
  EARL NELSONpointed out, as regarded ancestral associations, that the claim of persons to be buried side by side with their ancestors had been set
  8
  aside before by the Sanitary Acts. In his opinion, a great hardship would be inflicted upon members of the Church of England if the Amendment were not accepted. It would be a great grievance to Churchmen that, while there was abundant room in the unconsecrated portions of the cemeteries, the Dissenters should, by claiming the right of burial in the consecrated portion of the ground, fill it up, as had been pointed out by the most rev. Prelate (the Archbishop of York). He further thought it would be unfair not to accept the Amendment in order to meet the circumstances of certain parishes, such as in the case of Ribchester, near Preston, where the old churchyard was closed 10 years ago; and another piece of ground was given to the church for a burial ground, there being at the time burial grounds for the Independents and the Roman Catholics. In this case it would be a hardship if all parties should, under the operation of the Bill, resort to the Church burial ground; therefore, he should vote for the Amendment.
  THE EARL OF KIMBERLEYasked the most rev. Prelate (the Archbishop of York), would it be wise, by passing the Amendment, to allow an opportunity for ancestral rights to grow up, with their accompanying grievances? They would be perpetuating a small grievance among those whom they should seek to conciliate, by preventing them from being buried by the side of their relatives who might have been interred in consecrated ground. He hoped the Amendment would not be agreed to.
  On Question? Their Lordships divided:—Contents 130; Not - Contents 106: Majority 24.
  Resolved in the Affirmative.
  On the Motion of The LORD CHANCELLOR, Amendment made, in page 1, line 16, after ("without the"), by adding ("performance, in the manner prescribed by law, of the"), and omitting ("prescribed by law") after ("service").
  LORD STRATHNAIRNmoved an Amendment providing that the provi-

  11
  sions of the Bill should not apply to the burial of any person who had by word of mouth or writing publicly declared that he did not believe in God. He considered that it would be a very injurious thing to inter an Atheist in the burial ground of a Christian people. He could not agree with the so-called generous sentiment on this important subject.
  Amendment moved, in page 1, line 20, at the end of clause insert—
  ("Provided always, that the provisions of this Act shall not apply to the burial of any person who shall have by word of mouth or writing publicly declared that he did not believe in God.")—[The Lord Strathnairn.)
  THE LORD CHANCELLORsaid, that at present such persons were entitled to be buried in the churchyard, and the real effect of the Amendment, taken in connection with other clauses in the Bill, would be the opposite of what was desired by the noble and gallant Lord, for it would be that every such person would have to be buried with the Service of the Church of England.
  On Question? Resolved in the Negative.
  On the Motion of The LORD CHANCELLOR, Amendment made, in page 1, line 30, after ("and") by adding ("a copy of it;") and, in same line by omitting ("given"), and instead thereof inserting the words ("be delivered or sent by post not less than twenty-four hours before the time appointed for such burial").
  THE ARCHBISHOP OF YORK THE ARCHBISHOP OF YORK moved an Amendment, declaring that a graveyard within the meaning of the Act should not apply to any consecrated portion of a burial ground of which some portion had been left unconsecrated, nor to any consecrated burial ground in a place where one or more unconsecrated grounds were also provided under the Act.
  Moved, to leave out the last paragraph of the clause, and insert—
  ("But such power of giving notice of burial shall not apply to any consecrated portion of a burial ground formed under the Acts fifteenth and sixteenth Victoria, chapter eighty-five, and sixteenth and seventeenth Victoria, chapter one hundred and thirty-four, of which some portion has been left unconsecrated; nor to any consecrated burial ground in a place where one or more unconsecrated grounds are also provided
  Lord Strathnairn
  12
  under the Act twentieth and twenty-first Victoria, chapter eighty-one, section three.")— (The Lord Archbishop of York.)
  THE LORD CHANCELLOR,in opposing the Amendment, said, he hoped their Lordships would not accept it, as by so doing they would only change the area of the grievance which Dissenters had complained of. He had, on the second reading of the Bill, stated at some length his reasons for that opinion; and he would not now repeat them. He could not think it probable that, so long as the fees charged for burials in the consecrated parts of cemeteries were greater than those in the unconsecrated parts, which was at present the case, the use of the consecrated parts by Nonconformists under this Bill would be likely so largely to increase as to make the space left insufficient for Churchmen. The Committee would remember that the provisions of the Bill on this subject were not one-sided. It contained a clause which the most rev. Prelate did not propose to omit, enabling the Burial Service of the Church of England to be performed in an unconsecrated portion of a burial ground by any clergyman of the Church of England who might be willing to officiate at a burial there.
  EARL FORTESCUE,in supporting the Amendment, said, that he had voted for the second reading because he was anxious to remove the grievance which was felt to exist; but it could not be alleged that this Amendment would perpetuate a grievance.
  On Question, That the words proposed to be left out stand part of the Clause? their Lordships divided:—Contents 108; Not-Contents 127: Majority 19.

  CONTENTS.

  York, L. Archp.

  Cairns, E.

  Coventry, E.

  Norfolk, D.

  Dartmouth, E.

  Richmond, D.

  De La Warr, E.

  Rutland, D.

  Doncaster, E. (D. Buccleuch and Queens-berry.)

  Aberoorn, M. (D. Abercorn.)

  Eldon,E.

  Exeter, M.

  Feversham, E.

  Salisbury, M.

  Haddington, E.

  Hardwicke, E.

  Amherst, E.

  Harewood, E.

  Bathurst, E.

  Jersey, E.

  Beaconsfield, E.

  Lanesborough, E.

  Beauchamp, E.

  Lathom, E. [Teller.]

  Bradford, E.

  Manvers, E.

  Brownlow, E.

  Mar and Kellie, E.

  Cadogan, E,

  Morton, E.

  9

  Mount Edgcumbe, E.

  Clifton, L. (E. Darnley.)

  Nelson, E.

  Clinton, L.

  Onslow, E.

  Colchester, L.

  Powis, E.

  Delamere, L.

  Radnor, E.

  De Saumarez, D.

  Ravensworth, E.

  De Tabley, L.

  Redesdale, E.

  Digby, L.

  Rosse, E.

  Ellenborough, L.

  Rosslyn, E.

  Foxford, L. (E. Limerick.)

  Saint Germans, E-

  Selkirk, E.

  Gage, L. (V. Gage.)

  Somers, E.

  Gormanston, L. (V. Gormanston.)

  Sondes, E.

  Stanhope, E.

  Grey de Radcliffe, L. (V. Grey de Wilton)

  Tankerville, E.

  Haldon, L.

  Waldegrave, E.

  Harlech, L.

  Wilton, E.

  Heytesbury, L.

  Clancarty, V. (E. Clancarty.)

  Inchiquin, L.

  Kenlis, L. (M. Head-fort.)

  Cranbrook, V.

  Gough, V.

  Leconfield, L.

  Hardinge, V.

  Lilford, L.

  Hawarden, V. [Teller.]

  Lovel and Holland, L. (E. Egmont.)

  Hood, V.

  Melville, V.

  Lyveden, L.

  Strathallan, V.

  Moore, L. (M. Drog-heda.)

  Templetown, V.

  Northwiek, L.

  Bangor, L. Bp.

  Norton, L.

  Bath and Wells, L. Bp.

  Oranmore and Browne, L.

  Carlisle, L. Bp.

  Chichester, L. Bp.

  Oriel, L. (V. Masse-reene.)

  Durham, L. Bp.

  Gloucester and Bristol, L. Bp.

  Penrhyn, L.

  Poltimore, L.

  Hereford, L. Bp.

  Raglan, L.

  Lincoln, L. Bp.

  Ross, L. (E. Glasgow.)

  St. Albans, L. Bp.

  Rowton, L.

  Winchester, L. Bp.

  Saltersford, L. (E. Courtown.)

  Abinger, L.

  Scarsdale, L.

  Ashford, L. (V. Bury.)

  Sherborne, L.

  Aveland, L.

  Shute, L. (V. Barring-ton.)

  Bagot, L.

  Bateman, L.

  Silchester, L. (E.Longford.)

  Beaumont, L.

  Blantyre, L.

  Stanley of Alderley, L.

  Bolton, L.

  Stewart of Garlies, L. (E. Galloway.)

  Borthwick, L.

  Botreaux, L. (E. Loudoun.)

  Strathnairn, L.

  Strathspey, L. (E. Sea-field.)

  Brancepeth, L. (V. Boyne.)

  Templemore, L.

  Braybrooke, L.

  Tredegar, L.

  Byron, L.

  Trevor, L.

  Clanbrassill, L. (E. Roden.)

  Tyrone, L. (M. Waterford.)

  Clanwilliam, L. (E. Clanwilliam.)

  Ventry, L.

  Wimborne, L.

  Clements, L. (E. Lei-trim.)

  Windsor, L.

  Winmarleigh, L.

  NOT-CONTENTS.

  Canterbury, L. Archp.

  Saint Albans, D.

  Selborne, L. (L. Chancellor.)

  Somerset, D.

  Westminster, D.

  Bedford, D.

  Bristol, M.

  Cleveland, D.

  Lansdowne, M.

  Devonshire, D.

  Northampton, M.

  Grafton, D.

  10

  Airlie, E.

  Congleton, L.

  Camperdown, E.

  Cottesloe, L.

  Chichester, E.

  Crewe, L.

  Clarendon, E.

  Dorchester, L.

  Dartrey, E.

  Ebury, L.

  Derby, E.

  Elgin, L. (E. Elgin and Kincardine.)

  Devon, E.

  Ducie, E.

  Greville, L.

  Durham, E.

  Gwydir, L.

  Granville, E.

  Hammond, L.

  Innes, E. (D. Rox-burghe.)

  Hanmer, L.

  Hare, L. (E. Listowel.)

  Kimberley, E.

  Hatherley, L.

  Lovelace, E.

  Houghton, L.

  Lucan, E.

  Kenmare, L. (E. Ken-mare.)

  Minto, E.

  Morley, E.

  Kenry, L. (E. Dunraven and Mount-Earl.)

  North'brook, E.

  Portsmouth, E.

  Kintore, L. (E. Kin-tore.)

  Spencer, E.

  Sydney, E.

  Lawrence, L.

  Yarborough, E.

  Leigh, L.

  Zetland, E.

  Lismore, L. (V. Lis-more.)

  Eversley, V.

  Lyttelton, L.

  Falmouth, V.

  Meldrum, L. (M. Huntly.)

  Gordon, V. (E. Aberdeen.)

  Methuen, L.

  Halifax, V.

  Monck,L. (V.Monch.)

  Leinster, V. (D. Lein-ster.)

  Monson, L. [Teller.]

  Powerscourt, V.

  Mont Eagle, L. (M. Sligo.)

  Sherbrooke, V.

  Monteagle of Brandon, L.

  Exeter, L. Bp.

  Mostyn, L.

  Llandaff, L. Bp.

  Mount Temple, L.

  London, L. Bp.

  Ponsonby, L. (E. Bessborough.)

  Manchester, L. Bp.

  Oxford, L. Bp.

  Ribblesdale, L.

  St. Asaph, L. Bp.

  Robartes, L.

  Romilly, L.

  Annaly, L.

  Saye and Sele, L.

  Auckland, L.

  Sefton, L. (E. Sefton.)

  Belper, L.

  Skene, L. (E. Fife.)

  Blachford, L.

  Somerton, L. (E. Nor-manton.)

  Boyle, L. (E. Cork and Orrery.) [Teller.]

  Strafford, L. (V. Enfield.)

  Brabourne, L.

  Braye, L.

  Sudeley, L.

  Breadalbane, L. (E. Breadalbane.)

  Sundridge, L. (D. Argyll.)

  Caltborpe, L.

  Teynham, L.

  Carew, L.

  Tollemaohe, L.

  Carrington, L.

  Vaux of Harrowden, L.

  Carysfort, L. (E. Carysfort.)

  Vernon, L.

  Waveney, L.

  Churchill, L.

  Wolverton, L.

  Coleridge, L.

  CONTENTS.

  Canterbury, L. Archp.

  Airlie, E.

  Selborne, L. (L. Chancellor.)

  Camperdown, E.

  Chichester, E.

  Clarendon, E.

  Bedford, D.

  Dartrey, E.

  Cleveland, D.

  Derby, E.

  Devonshire, D.

  Devon, E.

  Grafton, D.

  Ducie, E.

  Saint Albans, D.

  Durham, E.

  Somerset, D.

  Granville, E.

  Westminster, D.

  Innes, E. (V. Roxburghe.)

  Bath, M.

  Kimberloy, E.

  Bristol, M.

  Lovelace, E.

  Lansdowne, M.

  Lucan, E.

  Northampton, M.

  Minto, E.

  13

  Morley, E.

  Greville, L.

  Northbrook, E.

  Gwydir, L.

  Portsmouth, E.

  Hammond, L.

  Spencer, E.

  Hanmer, L.

  Sydney, E.

  Hare, L. (E. Listowel.)

  Yarborough, E.

  Hatherley, L.

  Zetland, E.

  Houghton, L.

  Eversley, V.

  Kenmare, L. (E. Kenmare.)

  Falmouth, V.

  Kenry, L. (E. Dunraven and MountEarl.)

  Gordon, V. (E. Aberdeen.)

  Kintore, L. (E. Kintore.)

  Halifax, V.

  Leinster, V. (D. Leinster.)

  Lawrence, L.

  Leigh, L.

  Powerseourt, V.

  Lismore, L. (V. Lismore.)

  Sherbrooke, V.

  Lyttelton, L.

  Bath and Wells, L. Bp.

  Meldrum, L. (M. Huntly.)

  Exeter, L. Bp.

  Llandaff, L. Bp.

  Methuen, L.

  London, L. Bp.

  Monck, L. (V. Monck.)

  Manchester, L. Bp.

  Monson, L. [Teller.]

  Oxford, L. Bp.

  Monteagle of Brandon, L.

  St. Asaph, L. Bp.

  Mostyn, L.

  Aberdare, L.

  Mount Temple, L.

  Annaly, L.

  Ponsonby, L. (E. Bessborough.)

  Auckland, L.

  Belper, L.

  Ribblesdale, L.

  Boyle, L. (E. Cork and Orrery.) [Teller.]

  Robartes, L.

  Romilly, L.

  Brabourne, L.

  Saye and Sele, L.

  Braye, L.

  Sefton, L. (E. Sefton.)

  Breadalbane, L. (E. Breadalbane.)

  Skene, L. (E. Fife.)

  Calthorpe, L.

  Somerton, L. (E. Normanton.)

  Carew, L.

  Strafford, L. (V. Enfield.)

  Carrington, L.

  Carysfort, L. (E. Carysfort.)

  Sudeley, L.

  Churchill, L.

  Sundridge, L. (D. Argyll.)

  Coleridge, L.

  Teynham, L.

  Congleton, L.

  Vaux of Harrowden, L.

  Cottesloe, L.

  Vernon, L.

  Dorchester, L.

  Waveney, L.

  Ebury, L.

  Wentworth, L.

  Elgin, L. (E. Elgin and Kincardine.)

  Wolverton, L.

  Gardner, L.

  Wrottesley, L.

  NOT-CONTENTS.

  York, L. Archp.

  Coventry, E.

  Dartmouth, E.

  Norfolk, D.

  De La Warr, E.

  Richmond, D.

  Doncaster, E. (D. Buccleuch and Queensberry.)

  Rutland, D.

  Abercorn, M. (D. Abercorn.)

  Eldon, E.

  Feversham, E.

  Exeter, M.

  Fortescue, E.

  Salisbury, M.

  Haddington, E.

  Hardwicke, E.

  Amherst, E.

  Harewood, E.

  Bathurst, E.

  Jersey, E.

  Beaconsfield, E.

  Lanesborough, E.

  Beauchamp, E.

  Lathom.E. [Teller.]

  Bradford, E.

  Manvers, E.

  Brownlow, E.

  Mar and Kellie, E.

  Cadogan,E.

  Morton, E.

  Cairns, E.

  Mount Edgcumbe, E.

  14

  Nelson, E.

  Colchester, L.

  Onslow, E.

  Crewe, L.

  Powis, E.

  Delamere, L.

  Radnor, E.

  De Saumarez, L.

  Ravensworth, E.

  De Tabley, L.

  Redesdale, E.

  Digby, L.

  Rosse, E.

  Ellenborough, L.

  Rosslyn, E.

  Forbes, L.

  Saint Germans, E,

  Foxford, L. (E. Limerick.)

  Selkirk, E.

  Somers, E.

  Gage, L. (V. Gage.)

  Sondes, E.

  Gormanston, L. (V. Gormanston.)

  Stanhope, E.

  Tankerville, E.

  Grey de Radcliffe, L. (V. Grey de Wilton.)

  Waldegrave, E.

  Wharncliffe, E.

  Haldon, L.

  Wilton, E.

  Harlech, L.

  Heytesbury, L.

  Clancarty, V. (E. Clancarty.)

  Inchiquin, L.

  Cranbrook, V.

  Kenlis, L. (M. Headfort.)

  Gough, V.

  Leconfield, L.

  Hardinge, V.

  Lilford, L.

  Hawarden, V. [Teller.]

  Lovel and Holland, L. (E. Egmont.)

  Hood, V.

  Melville, V.

  Moore, L. (M. Drogheda.)

  Strathallan, V.

  Templetown, V.

  North wick, L.

  Norton, L.

  Bangor, L. Bp.

  Oranmore and Browne, L.

  Carlisle, L. Bp.

  Chichester, L. Bp.

  Oriel, L. (V. Massereene.)

  Gloucester and Bristol, L. Bp.

  Penrhyn, L.

  Hereford, L. Bp.

  Poltimore, L.

  Lincoln, L. Bp.

  Raglan, L.

  St. Albans, L. Bp.

  Rayleigh, L.

  Ross, L. (E. Glasgow.)

  Abinger, L.

  Saltersford, L. (E. Courtown.)

  Ashford, L. (V. Bury.)

  Aveland, L.

  Searsdale, L.

  Bagot, L.

  Sherborne, L.

  Bateman, L.

  Shute, L. (V. Barrington.)

  Beaumont, L.

  Blantyre, L.

  Stanley of Alderley, L.

  Bolton, L.

  Stewart of Garlies, L. (E. Galloway.)

  Borthwick, L.

  Botreaux, L. (E. Loudoun.)

  Strathnairn, L.

  Brancepeth, L. (V. Boyne.)

  Strathspey, L. (E. Seafield.)

  Templemore, L.

  Braybrooke, L.

  Tredegar, L.

  Clanbrassill, L. (E. Roden.)

  Trevor, L.

  Tyrone, L. (M. Waterford.)

  Clanwilliam, L. (E. Clanwilliam.)

  Ventry, L.

  Clements, L. (E. Leitrim.)

  Wimborne, L.

  Windsor, L.

  Clinton, L.

  Winmarleigh, L.

  Resolved in the Affirmative.
  THE MARQUESS OF SALISBURYsaid, that they had been dealing with the old churchyards and other matters, and he now wished to introduce quite another subject for consideration. He would propose, as an Amendment, to move the insertion, at the end of the clause, of these words—

  15
  ("This Act shall not affect any consecrated burial ground given as a free gift within 50 years before the commencement of this Act unless the consent of the donor or his representative shall have been previously obtained in writing.")
  Their Lordships had decided that in the ancient churchyard services should be celebrated which were not the Services of the Church of England. The principle of the Bill was intelligible enough as applied to them, although the title of the Church to these churchyards was undoubtedly strong. It rested upon the possession of centuries. But he wished to direct attention to the churchyards to which her title was also strong, but which she held by the will of the donors who were living, or who lived recently, and whose wishes were perfectly well known. His noble and learned Friend on the Woolsack (Lord Selborne) had said that this was a question upon which the clergy were on one side and the laity on the other; but he thought there was absolutely no foundation for that statement. Many Members of that House and of the other House of Parliament had been donors of graveyards in recent times. Among such donors he might instance the Duke of Northumberland and the Duke of Rutland. The noble and learned Lord told them that they had no representatives from the laity on the subject of the Bill; but he (the Marquess of Salisbury) had in his hand a protest from donors of land given for either new churchyards or for additions to old churchyards, and the same was given under the existing laws, which it was imagined would continue in force, otherwise they would not have given it; and that showed the strong feeling of the laity against this Bill. To this protest there were some 300 names of Members of both Houses and other donors. His noble and learned Friend said, the other evening, that the new churchyards would remain as they were—that was, dedicated to the purpose of burial for all Her Majesty's subjects; but there were two trusts, and his noble and learned Friend ignored one. No doubt, everyone could be interred who died in the parish. As to that there would be no difference. The churchyard would be used for all classes of Her Majesty's subjects; but as to the other trust—that persons interred in them should be buried with the Service of the Church
  16
  of England, it was on that trust that this Bill would make a vital alteration. It was a serious grievance, and one which the donors complained of, that if persons had given land for the purpose of having celebrated in it the Services of the Church in whose dogmas they believed, and to which they were attached, the power of Parliament should be called into play for the purpose of wresting it from that purpose, and for the purpose of celebrating in it the service of communities which differed widely from the Church of England. The noble and learned Lord would, no doubt, say that these Services would be Christian, and in no way widely different from those of the Established Church; but the noble and learned Lord had already furnished an answer to that argument, for he had defined a Christian to be anyone calling himself by the name of Christian. It was absurd to maintain that there was no violation of the donors' wishes when there might be celebrated in the churchyards the service of the body which rejected every one of the distinctive doctrines of his own Church. He was glad, however, to believe that his noble and learned Friend's statement was true in a majority of instances. But there was also a widely different spirit abroad—a spirit which might be exemplified by what took place not very long ago in the Paris University. A few months ago, a celebrated writer—a Protestant—was appointed a Professor in Paris. The students of that city were not very fond of dogmas of any kind, and there was a probability that the new Professor would be received with some discontent, because he was suspected of the cardinal vice of Christianity. His defence was—"I am a Christian if you will, but a Christian without dogma and without belief." He (the Marquess of Salisbury) believed that Christians without dogmas and without belief were not so uncommon in this country as some people imagined; it was a fashion which seemed to be increasing. He admitted that the majority of those who would take advantage of this did not differ from them on matters which, in view of the great controversies of the day, they were entitled to characterize as of primary importance; but that did not alter the position, rights, and claims of the donors of churchyards. They had practically opened the door for every kind of belief,

  17
  and whether such cases as he had indicated were few or many, the rights of the donors were equally violated. He feared, too, that in time to come the differences which now marked off the Nonconformist Body from the Church of England would not be of the same secondary importance as at present. A study of the religious doctrines of the present day led to the conclusion that the dissidents with whom the Church of England would have to deal in the future would be persons whom no stretch of comprehensiveness or charity could include in the pale of the same belief with it. He therefore thought they were indulging themselves in a vain hope, if they thought that after the lapse of a few years those who now differed from the Church would be satisfied with what was now proposed to be done. Whether the difference between the Church of England and Dissenters was great or small, the rights of donors were equally injured. It was not a question whether he and his noble and learned Friend on the Woolsack thought the difference between them a large one. The question was, What did those persons think who granted their property for a specific purpose? They had a right to decide for themselves whether the matters were great or small. They were matters of private judgment, of individual decision, and no one had a right to lay down a rule on the question. It used to be objected to equity, in olden times, that its measure was the length of the Chancellor's foot. But if we were to have the degrees of dogma which separated respective sects decided by the length of the Chancellor's foot, or in accordance with his particular opinions, we should be in a worse state still. The noble and learned Lord was known as an attached friend of the Church of England; but the Chancellor of tomorrow would stretch his charity further than the Chancellor of to-day, and include Unitarians; and a Chancellor after that might stretch a little further, and include those who did not believe in any Divinity at all. The question whether the bequests or gifts of those donors had been dealt with honestly was in no degree affected by the feeling of the present Lord Chancellor as to how far Dissenters might differ from the Church of England. When he (the Marquess of Salisbury) said it was a question of
  18
  honesty to donors, he rested on the language used by Parliament itself. He would draw the attention of their Lordships to the fact that Parliament, 60 years ago, awoke to the fact that the provision for the spiritual destitution in this land was quite inadequate, and that churches and churchyards required to be extended. Of the churches it was not now necessary to speak. Parliament, while making provision for supplying this need, in some cases by public money, in other cases invited the munificence of private individuals to supply that which was wanted; and, in doing so, Parliament stated the terms on which the assistance could be accepted. In 1823, in one of the earliest Church Building Acts, there was laid down the deed of conveyance by which the ground added by free gift to churchyards was to be conveyed to the Church Building Commissioners, who were the predecessors in title of the Ecclesiastical Commissioners of to-day. In this Act were cited various other Acts on the same subject, and they contained these words—
  "And every piece of land, 'when conveyed to the said Commissioners, shall become for ever thereafter devoted to ecclesiastical purposes, in order that the same may be consecrated by the Bishop according to the rites of the United Church of England as Ireland 'as by' law established.'"
  It was impossible for Parliament to put a pledge in more distinct and absolute terms than what the words of the Act conveyed. Our Parliamentary practice did not know a more distinct pledge than that, and yet it was now proposed that Parliament should disregard it. If any member of the Episcopal Bench was to invite a man to give his land on a promise that it should be used for the service of the Church of England and Ireland, and were then to use some legal power for the purpose of opening it to all classes of men who called themselves Christians, their Lordships knew by what name to call this. It would be nothing less than defrauding the owner of the land. Why was it less fraud when committed by the Imperial Parliament? Was Parliament the only body which could not make any binding promise? Were they to assume that, however solemn and detailed the promise made, and in however blind a confidence it had been acted on by a donor, yet when, in the changing course of politics, it became

  19
  necessary to repay some sectarian aid in the General Election, that promise was to be treated as of no avail, and torn up as so much waste paper. What, he asked, would be the effect of wresting the churchyards from their original purpose on the future flow of charitable bequests? Parliament had taken strange liberties with ancient charitable endowments; but it had also placed this restraint upon itself, that modern endowments had been respected. Even a philosopher like Mr. John Stuart Mill was of opinion that the space of 60 years was a right and proper interval for adherence to a donor's bequest, lest such bequests and gifts should be altogether prevented, and Parliament had pursued a policy of that kind. In the Irish Church Acts the gifts were respected up to the Reformation. In the Endowed Schools Act they were respected for a distance of 50 years. In the Education Act no recent gift was taken unless the actual managers of the school consented. The policy on this point had hitherto been uniform, and this was the first departure from that uniformity. This Bill was the first precedent for the alienation and spoliation of a recent endowment that Parliament would have sanctioned if the Bill were adopted as it stood. It was a very grave step that was proposed to be taken by the Government. It touched a question far graver than that which concerned the Church and Churchmen, for it touched the sacredness of endowments in this country. It affected the possibility of obtaining any further supply from that rich source of private charity on which it had depended; and therefore it was that the Amendment which he had to submit was one of exceptional importance.
  After Clause 1, moved to insert the following clause:—
  ("This Act shall not affect any consecrated burial ground given as a free gift within sixty years before the passing of this Act if the donor or his representative shall have dissented from the application of this Act to such burial ground within six months after the passing of this Act.")—{The Marquess of Salisbury).
  THE LORD CHANCELLORsaid, he must take issue with the noble Marquess opposite (the Marquess of Salisbury), both on his facts and on his principles. The Bill did not propose either alienation or spoliation of recent gifts or endowments. The Bill proposed
  20
  merely a regulation by law in a matter which he (Lord Selborne) maintained, on every principle of reason, ought to be within the moral, as well as the legal, competency of Parliament. It proposed to regulate, not as to the right of burial itself, but as to certain accessories and incidents of that right, the manner in which these endowments should be used for the purposes for which they were given. What was the effect which the Bill would have on such endowments? That which was given to be part of the churchyard would still remain part of the churchyard. It would still be used, according to law, for the burial of those who were members of the Church of England, and who desired to have the Service of the Church of England. Not one of the rites and ceremonies of the Church of England would be taken away from those to whom they were acceptable; by all such persons the endowment would be enjoyed as it had hither to been enjoyed. With regard to those who by law never could have had performed at their funerals the rites and ceremonies of the Church of England, the gifts which were given, and the terms on which they were accepted, did not exclude those persons from the churchyards or from the grounds so given. They were, as much as any other inhabitants of the parish, entitled to the use of the ground for burial; and it was a false, and not a legal, construction of the Acts of Parliament to which the noble Marquess had referred, to suppose that the effect of these gifts was that nobody could be laid in that ground unless the Service of the Church of England was performed. All, therefore, that the present Bill did was to permit the same persons who were now entitled to be laid in the ground, in some cases to be laid in it with a different form of service, and in others with some form of service where none was now allowed by law. A more complete contrast and difference could not be imagined than between legislation such as that, and legislation which withdrew the subject of the gift altogether from the purposes for which it had been given. By the Irish Church Act the endowments which were not allowed to revert to the donors were withdrawn altogether from the purpose for which they were given; and he would be the last to ask their Lord-

  21
  ships, in any similar case, to depart from the principle on which the Government of that day determined that, whatever course might be justifiable, when the representation to such donors was very remote, it was not right to take away entirely from the purposes for which they were given, and devote to other public objects recent gifts to which, if the State made the observance of all the express conditions on which they were given impossible, the donor or his representative might have a moral claim. And in the cases of the Endowed Schools Act and the University Trusts, those also were trusts, constituted by private donation for specific purposes; and what was done was to say that from those specific purposes the endowments should not be withdrawn, if given within the last 60 years, or whatever period it was thought right to take. If such private trusts as the noble Earl opposite (Earl Nelson) had mentioned were constituted for the specific purpose of burial under particular conditions, whether those conditions had reference to the usages of the Church of England or of any other denomination, the argument from the Endowed Schools Act and the University Endowments would apply. But this was a totally different case; and, apart altogether from the construction of certain words in particular Statutes to which his noble Friend had referred, he maintained on broader grounds that it would be fatal to all sound principle of public legislation for their Lordships to sanction the doctrine, that those who had given out and out for public purposes land which was once private property ought to be treated as if they had reserved, or could have reserved, to themselves the right of dictating to Parliament as to how its use for such public purposes should, or should not, be regulated or modified. The additions to churchyards were additions made to that which was the subject of a known public use, regulated, and to be regulated, by public law. If the donors had reserved to themselves some rights of property or some control, which they had not done, they might then possibly have been entitled to say that the grants were to apply to churchyards, only so long as they might continue to be regulated in exactly the same manner as they were at the date of the grants; but to say
  22
  that the Legislature was to hold its hand and not to be at liberty to use its power of modifying the regulations applicable to such burying grounds after the land had been given out and out without reservation, would be to introduce a principle to the mischief of which there would be no limit. A man who gave property for a road, or for a public park, or for any other public purpose, might come forward and object to all subsequent legislation concerning the manner of regulating it, and might say—"This was not the state of the law when I gave the land, and therefore I object to it." Why, it would be a clear duty of Parliament to refuse to take gifts from persons on any such conditions as that. Parliament had never accepted them under such limitation of its powers. If the principle were good for churchyards, it would be equally good for churches. It would give every private donor or builder of a church a right of veto, so far as that church was concerned, upon any subsequent alteration by law of the rites and ceremonies, formularies or discipline of the Church of England. They might have private donors, notwithstanding the united authority of Convocation and of Parliament, objecting and saying that they had not contemplated the permission of this thing or of that thing. Against that principle, therefore, he, for one, must steadily set his face, and he hoped their Lordships would do the same. It was perfectly consistent, both with the true legal effect and the real spirit and meaning of the Acts of Parliament which had been referred to, that such a modification as this Bill proposed should be made in the regulations enforced by law as to the manner of performing the service at funerals in grounds given for the purposes of those Acts, if such a modification were thought proper, not as to those grounds by way of exception, but as to churchyards generally. To except grants made within the last 50 or 60 years would also, in practice, lead to endless confusion. In doing so, their Lordships were asked to mark out a line which nobody had ever thought of drawing, defining exactly where an old churchyard began and where it ended; and although the old part might be filled up so that it would be contrary to decency to make additional interments in it, and although the new part might be the only

  23
  part fit for interments, they were asked in such a case to exclude Dissenters from the rights given under this Bill— from the rights given them in all other churchyards, even although there might be no other consecrated or unconsecrated ground accessible to them in which they could be buried. He protested against this, and repeated that there was no spoliation proposed by the Bill, and no taking away of any of these gifts from the purposes for which they were given.
  THE ARCHBISHOP OF YORKthought that the Bill unquestionably gave to Dissenters a right they did not possess at present. In the case of a donor giving a churchyard to the Church of England, under its provisions they were about to take the ground which belonged to one person, and which was given to him for a certain limited number of persons, and they were to increase the number of persons who might use it. It was impossible to admit the argument of the noble and learned Lord, and he would therefore suggest an Amendment of the Amendment proposed by the noble Marquess (the Marquess of Salisbury), one providing that it should only apply to those cases where the donors should have dissented from the application of the Act within six months after its commencement.
  LORD BRABOURNEsaid, that in spite of the favour with which the remarks of the noble Marquess (the Marquess of Salisbury) had been received, and in spite of the two recent divisions, he hoped that a little further reflection, and somewhat fuller consideration of the principles involved in the proposition of the noble Marquess, would induce their Lordships to come to the conclusion that it could not possibly be accepted. The noble Marquess had held in his hand a Memorial signed by 300 donors of lands for churchyard purposes, on whose behalf he spoke, their gifts having been made within the last 35 years. But the papers which had been sent round with that Memorial stated that additions had been made to upwards of 5,000 churchyards within the last 50 years. So that, making the noble Marquess a present of 200 donors on account of the difference between 35 and 50 years, he might be said to speak in the name of 500 persons, or 10 per cent of the whole number who had given land for these purposes. And in order
  24
  to gratify the feelings of this limited number of persons, their Lordships were asked to do that which would mar the symmetry and spoil the completeness of the measure which was proposed to them as a settlement of this important question. He (Lord Brabourne) ventured to say that if they accepted this Amendment for the sake of this limited number of individuals, all of whom were of the higher or richer classes, in a matter which concerned the whole population of England and Wales, such a course would not tend to increase the respect with which their Lordships' decisions were received by the country, whilst it would infallibly prevent the acceptance of this measure by the country as anything like a satisfactory settlement. But yet, if a legal and equitable claim could be established by these persons, he would not venture to ask their Lordships to refuse to recognize that claim, even though its recognition might be attended with some inconvenience. He was, however, prepared to contend that no such claim could be established, whilst its recognition would be attended, not only with great inconvenience, but with consequences most unfortunate and most mischievous to the Church. What was that claim? It was a claim by persons who had given property to a National Institution that they, and not the Parliament of the nation, should still control and regulate the property which they had thus given. He (Lord Brabourne) would not attempt to add anything to the argument of his noble and learned Friend (the Lord Chancellor) upon this point; but he must ask their Lordships to consider that it would be impossible to stop here if they once conceded the principle of the Amendment. Other property besides sites for churchyards had been given to the Church. Many persons had given sites for churches, and had restored, built, and endowed churches at their own cost. Now, there were constant applications to Parliament for alterations in the Rubric or Services of the Church. Only the other day, a noble Lord had presented a number of Petitions praying for some alteration which would put an end to what was called Auricular Confession. Again, it had been proposed that the Atha-nasian Creed should be expunged from the Church Service; and other changes or relaxations of discipline had been mooted

  25
  from time to time. But once admit the principle of the Amendment of the noble Marquess, and every donor of a site for a church, or of money to build a church, would have a claim to demand that only those exact services should be used in that church which were used at the time of his gift; and so we should have different services in different churches belonging to the same National Church, and divisions created which could not but be most injurious to the Establishment. He (Lord Brabourne) did not know why the noble Marquess had fixed upon 60 years as the term to which his Amendment should apply. It was a kind of "scientific frontier" against Nonconformity, which, like other scientific frontiers, the noble Marquess would find generally indefensible and always incomprehensible. Moreover, the noble Marquess had reversed the natural order of things. Instead of allowing the general law to be applicable, unless the donors of churchyards objected, he had proposed that the general law should not be applicable until the consent of the donors to its application had been obtained. There were two practical difficulties in the way to which he (Lord Brabourne) begged their Lordships' attention. First, there was the question of boundaries. Some years ago it had fallen to his lot to have to dissect for division between two properties, allotments upon a common which had been enclosed not 50 nor 35, but less than 30 years before. In that case there were fences and landmarks, but yet the difficulty of dissection was great. But in the case of a churchyard to which addition had been made many years ago, and where no line of demarcation had ever been set up, the difficulty would be ten-fold greater, and many disputes would arise. Another difficulty arose in the fact that these additions to churchyards had not all been made by single donors. He (Lord Brabourne) knew of cases, and doubtless there were many more, in which land had been purchased by subscriptions and given to the Church for those purposes. How would they proceed with the Amendment of the noble Marquess in such cases? Would the consent of a numerical majority of the donors be necessary, or would it suffice to obtain the consent of a minority who had contributed the larger amount? If the Amendment were passed, it would
  26
  land them in a sea of difficulties and litigation which the noble Marquess could hardly have contemplated. He (Lord Brabourne) craved pardon of their Lordships if he spoke warmly on the subject. He spoke warmly, because he felt deeply that, upon their manner of dealing with this Amendment, depended the success or failure of the present measure as a settlement of the Burials Question. By the large majority upon the second reading, their Lordships had given good hope to the country that they intended to accept this measure as a settlement of the question. But there were two ways in which that acceptance might be given. It might be given grudgingly, or it might be given in a frank, large-hearted, and generous spirit. If it was given grudgingly—if the idea was suffered to go abroad that, in order to end the long agitation upon the subject, their Lordships were about to give a tardy and reluctant assent to that of which in their hearts they did not approve—if they doled out a measure of relief to the Dissenter with one hand, and strove to grasp a portion of it back with the other by such Amendments as that before them, they would fail to accomplish their object. Every such Amendment as the present tended to drag down the Church to the level of a sectarian denomination, and left behind a grievance to the Nonconformists which would infallibly form the basis of future agitation. But if the acceptance of this measure was given in a frank and generous spirit, they would strengthen the Church whilst they relieved the Nonconformists. They must deal with the Church as with a National Institution. The time had come when these questions must be dealt with in that comprehensive spirit and with that breadth of Christian charity which had characterized the speech of the most rev. Prelate (the Archbishop of Canterbury) upon the second reading of the Bill, a speech which had added one more to the many services which he had rendered the Church since he had occupied his present exalted position. He (Lord Brabourne) knew that the noble Marquess had moved his Amendment in the supposed interests of the Church. The noble Marquess was a recognized champion of the Church. But, unfortunately, the Church seemed destined to receive her severest wounds from, her

  27
  recognized champions, rather than from her open enemies. What could he more disastrous to the Church than that, for the first time in our history, there should be drawn a line of demarcation across our old churchyards, and that if a stranger should ask its meaning he should be told that on one side reposed the bodies of English Churchmen and on the other the bodies of English Christians? A comparison would be suggested between the claims of the Church on one side and of Christianity on the other—between the claims on one side of a narrow sectarian spirit which sought to perpetuate theological differences after death, and on the other of a broader, more comprehensive, and more Christian spirit, which desired to bury such differences in the grave, and at the last solemn moment of interment to remember only that tie of common Christianity which had bound the living together. In the belief that the proposition of the noble Marquess would do infinite injury to the Church, whilst it would offend the Nonconformists, prevent the settlement of the question, and give rise to heartburnings, litigation, and continued agitation, he earnestly begged their Lordships to reject it by a decisive majority.
  On Question? Their Lordships divided:—Contents 91; Not-Contents 104: Majority 13.
  Resolved in the Negative.
  Clause, as amended, agreed to.
  Clause 2 (Paupers) agreed to.
  Clause 3 (Time of burial to be stated, subject to variation).
  On the Motion of The LORD CHANCELLOR, the following Amendments were made in the clause:—In page 2, line 12, omit ("time at which") and substitute ("day and hour when"); line 13, omit ("named") and substitute ("stated"); line 18, omit ("eighteen") and substitute ("twenty-four"); line 22, at the beginning of the line, before ("such"), insert these words "or (if such day shall be a Sunday, Good Friday, or Christmas Day) of the day next following"; line 31, add at the end of the clause these words—
  ("Provided also, that no such burial shall take place in any churchyard on Sunday, or on Good Friday or Christmas Bay, except by the consent of the person receiving such notice.")
  THE EARL OF LIMERICK,in moving an addition to the clause providing that, unless it should be otherwise mutually arranged, no such burial should take place in a churchyard on Sunday, Christmas Day, Good Friday, or Ascension Day, said, the noble and learned Lord (the Lord Chancellor) had an Amendment to the same effect, except that Ascension Day was not included.
  Amendment moved, in page 2, at end of clause, to add—
  ("And be it further provided that, unless it be otherwise mutually arranged, no such burial
  30
  shall take place in a churchyard on a Sunday, Christmas Day, Good Friday, or Ascension Day.")—{The Earl of Limerick.)
  THE LORD CHANCELLORsaid, that under the Amendment he had proposed it was provided that such burials should not take place on Sunday, Good Friday, or Christmas Day. The question as to excluding Ascension Day could be considered before the Report.
  EARL CAIRNSthought that Ascension Day should be included in the list.
  THE LORD CHANCELLORremarked, that Ascension Day was not generally observed throughout the country as a festival of the Church; and, therefore, there was no ground for including it in the list.
  THE BISHOP OF LINCOLNobserved, that in more than 600 out of the 800 parishes in his diocese Ascension Day was kept as a religious festival.
  Amendment (by leave of the Committee) withdrawn.
  Amendment moved, in page 2, line 31, at the end of the clause, to add—
  ("Provided also, that no such burial shall take place on a Sunday, Good Friday, or Christmas Day, or on any other day during, or half an hour before or half an hour after, the performance of any Divine service in the church.")—(The Viscount Templetown.)
  THE LORD CHANCELLORpointed out that in cases where the time proposed for burial was inconvenient, the clergyman might himself fix an hour.
  Amendment (by leave of the Committee) withdrawn.
  Clause, as amended, agreed to.
  Clause 4 (Burial to take place accordingly) agreed to.
  Clause 5 (Regulations and fees).
  Amendment moved, in page 2, line 42, after ("fee") insert ("or offering"); and in line 43, after ("fee") insert ("or offering.")—(The Lord Bishop of Bangor.)
  After an explanation by the LORD CHANCELLOR,
  Amendment (by leave of the Committee) withdrawn.
  Clause agreed to.
  Clause 6 (Burial may be with or without religious service).
  LORD HOUGHTONmoved an Amendment, to insert the words "or Jewish," so as to make it read that
  ("The burial in the churchyard or graveyard might take place either without any religious service, or" with such Christian, or Jewish, and orderly religious service as the persons in charge of the burial might think fit.")
  Amendment moved, in page 3, line 5, after ("Christian")insert ("or Jewish.") —(The Lord Houghton.)
  THE LORD CHANCELLORregretted that he could not accept the Amendment of his noble Friend, as it would break in upon the principle on which this clause was drawn. The burial grounds referred to in the Bill were places of Christian burial for all parishioners; and unless they were to lose that character, it followed when they came to consider the question of religious services to be performed in them, that they must either have no service in the churchyard, or the service must be Christian. They must draw the line somewhere as to the character of the service. There was no principle on which it could be necessary, or—as he thought—reasonable, to allow Pagan ceremonies or the delivery of secular harangues in a churchyard. And while a Jew, if he were a parishioner, would have a civil right to burial, that right was satisfied if it were silent and without a religious ceremony. It was impossible to admit the religious services of Jews, and to exclude other non-Christian services. The word "Christian" must either stand or go. He preferred that it should stand. It was in accordance with the feelings of almost all religious people that there should be some line drawn, and he knew no other which it was possible to draw. The common law drew the line for him by stating that Christianity was part and parcel of the common law of the land. In point of fact, too, the Jews not only possessed, but decidedly preferred, their own burial grounds; and no single intimation had reached him from any quarter that they desired any alteration to be made, so far as they were concerned, in the Bill. While he had every sympathy with and respect for those who professed the Jewish religion with sincerity, yet he did not think it was necessary on their account to throw down all
  32
  barriers against that which it was right to exclude.
  THE BISHOP OF LINCOLNobserved that the modern Jews made it a fundamental part of their religion to affirm that the promised Messiah was not come; and that, consequently, our blessed Lord, who claimed to be the Messiah, was a deceiver. He, therefore, opposed the Amendment.
  LORD HOUGHTONsaid, he had on several occasions attended Jewish services, and they were conducted with extreme solemnity. There was nothing in them to outrage anyone's feelings. Still he would withdraw the Amendment.
  Amendment (by leave of the Committee) withdrawn.
  THE EARL OF LIMERICKmoved an Amendment to provide that the persons permitted to read any service should not be in Holy Orders in the Church of England.
  Amendment moved, in page 3, line 7, after ("persons") insert ("not being in holy orders of the Church of England".)—(The Earl of Limerick.)
  THE LORD CHANCELLORsaid, the Amendment would exclude any person who had been ordained, but had since left the Church of England.
  THE BISHOP OF CARLISLEasked whether the object of the Amendment was not to prevent one clergyman officiating in the churchyard of another without his consent, where the incumbent was objected to? He could not help thinking some such security ought to be given by the Bill.
  THE EARL OF LIMERICKsaid, that was the object of the Amendment, and, in the hope that the noble and learned Lord (the Lord Chancellor) would consider the matter before the Report, he would withdraw the Amendment.
  Amendment (by leave of the Committee) withdrawn.
  On the Motion of The LORD CHANCELLOR, Amendment made, in page 3, line 4, at the beginning of the line before ("having") insert ("so"), and after ("same") insert ("as aforesaid").
  Amendment moved, in line 10, at the end of the clause, add—

  33
  ("The word 'Christian' in this section shall include every religious service used by any church, denomination, or person professing to he Christian.")—(The Lord Chancellor.)
  THE MARQUESS OF SALISBURYwished to know whether, if any person were taken to task for conducting improper services in the churchyards, it would be a sufficient plea to say that he was a Churchman, no matter what were his doctrines, or the services which he performed?
  THE LORD CHANCELLORsaid, it would certainly be understood that anyone professing to be Christian was acting in good faith.
  EARL CAIRNSsaid, it was not some recognized service that was required; but the matter was made to depend upon a person professing to be a Christian. He would suggest that the clause should be left as it originally stood.
  THE EARL OF HARDWICKEwished to know whether a clergyman would have power to prevent a service when he knew that it was to be conducted by a person unfit for the purpose?
  THE LORD CHANCELLORsaid, that an incumbent would have no power to prevent a service; but anyone offending against the provisions of the Bill might be punished for a misdemeanour. He had put the words upon the Paper for the purpose of avoiding any controversy, as to the doctrines of any service, or of those using it, which some thought (though he did not) might be open under the clause as it now stood, and which it was certainly not desirable to invite or allow.
  LORD LILFORDasked the noble and learned Lord (the Lord Chancellor) and the right rev. Bench if they could give a definition of the difference between the views of a Mahomedan respecting the mission on earth of our Lord Jesus Christ and those of a Unitarian? He (Lord Lilford) thought it would be difficult to give it.
  THE MARQUESS OF SALISBURYhad no doubt it would be difficult, for, in many cases, the Mahomedan had quite as much respect and reverence for Christ as the Unitarian had. The result of the qualifications and modifications which the noble and learned Lord (the Lord Chancellor) had introduced from time to time, had left in his mind the impression that the word Christian represented no substance and no reality, but was simply
  34
  a species of declaration intended to reconcile without just foundation those to whom the reality was a great matter.
  On Question? Resolved in the Affirmative.
  Amendment moved in page 3, at end of clause insert—
  "Provided always, that the foregoing clauses of this Act shall only apply to the churchyard or graveyard in any parish or ecclesiastical district where there is no unconsecrated burial ground or cemetery in which the parishioners or inhabitants have rights of burial, and shall cease and determine in respect of any such parish or ecclesiastical district so soon as such unconsecrated burial ground or cemetery has been provided.")—(The Earl of Mount Edg-cumbe.)
  THE ARCHBISHOP OF YORK opposed the Amendment.
  On Question?Resolved in the Affirmative.
  THE BISHOP OF WINCHESTERin moving, as an Amendment to the clause, the addition of the words—"Provided that no such religious service shall last more than 30 minutes," said, that he did not know how decorum could be preserved unless some limitation of time of services was agreed upon. The Church of England service did not last more than a quarter of an hour. But at Nonconformist funerals addresses were likely to be delivered and hymns sung. Sometimes two or three addresses might be delivered—on such an occasion, for example, as the presence of a popular and eloquent minister. He had, when he was a clergyman in Cornwall, witnessed scenes which showed the danger of this. Funeral processions sometimes used to travel five miles, and the mourners sang hymns (often very beautiful hymns) until they came to the churchyard. The law would not permit this, and he had often been kept waiting an hour. He looked upon his Amendment as one conducive to peace, and calculated to prevent disorder. In some circumstances, no doubt, if there were no pressure of time or duties, a sensible clergyman would relax the rule as to time. For himself, he would not insist upon half an hour; but he would like to have a limit of time fixed. He had often known funerals where disagreeable occurrences took place, and unless some time was mentioned for the service much inconvenience might be experienced.
  Amendment moved, in page 3, line 10, at end of clause add—
  ("Provided that, unless it shall he otherwise mutually arranged, no such religious service shall last more than thirty minutes.")—[The Lord Bishop of Winchester.)
  LORD WAVENEYobjected to the Amendment, and thought that everything ought to be left to the good feeling of the people and the solemnity of the occasion.
  THE BISHOP OF OXFORDsaid, that it would be very easy to make arrangements with pious Nonconformist ministers; but other persons of quite a different character might have the conduct of funerals, and therefore it would be well that a time should be limited for the service. It was represented to him the long services might lead to some collision.
  THE EARL OF HARDWICKEsaid, he was clearly in favour of investing the clergy with the power of determining how long the services should last. In that view, he would urge that power in the matter should be given to the incumbent.
  THE BISHOP OF CARLISLEwas of opinion that the Amendment would place the clergy in a most invidious position, and make the Bill still more unpalatable to them. Nothing could be more unfortunate than that the clergyman should have to negotiate with the friends of the deceased person as to the length of the service. Again, the services might be led sometimes by women, and he should like to know how a woman was to be stopped?
  THE ARCHBISHOP OF YORKsaid, the Amendment would be a good thing as a general direction; but he did not see how it was to be carried out.
  THE LORD CHANCELLORthought it would be wiser to trust to the power of the clergymen, under the 3rd clause of the Bill, to fix a time which would leave a reasonable margin, so as to avoid any risk of practical inconvenience. It would be impossible, if parties came not quite punctually, or if they exceeded the limited time, as with extempore services might be very liable to happen, to stop the funeral before it came naturally to an end. To protract the service unreasonably could not be for the convenience of those concerned. If a maximum time were fixed, it might soon be re-
  36
  garded in practice as a minimum; and, in that case, it would be habitually exceeded.
  Amendment (by leave of the Committee) withdrawn.
  Clause, as amended, agreed to.
  Clause 7 (Burials to be conducted in a decent and orderly manner, and without obstruction).
  LORD WAVENEYmoved, as an Amendment, in lines 15 to 18, to omit certain words which accounted as a misdemeanour the delivery of an address, not being part of or incidental to a religious service permitted by the Act, in a grave3'ard or churchyard.
  THE LORD CHANCELLORappealed to the noble Lord not to press the Amendment. The words were intended to exclude secular addresses.
  Amendment (by leave of the Committee) withdrawn.
  Clause agreed to.
  Clause 8 (Act not to give right of burial where no previous right existed) agreed to.
  Clause 9 (Burials Under Act to be registered).
  On the Motion of the LORD CHANCELLOR, the following Amendments made:—In page 3, line 29, at the beginning of the line, before ("having") insert the word ("so") and after ("burial") insert ("as aforesaid"); line 31, instead of ("Schedule (A.)") insert ("Schedule (B.)"); line 40, after ("thereof") add these words—
  ("Such entry, instead of stating by whom the ceremony of burial was performed, shall state by whom the same has been certified under this Act.")
  Clause, as amended, agreed to.
  Clause 10 (Liberty to use burial service of Church of England in unconsecrated ground).
  On the Motion of the LORD CHANCELLOR, the following Amendment made to the clause:—
  In page 4, line 10, at the end of the clause add these words ("The relative, friend, or legal representative, having charge of or being responsible for the burial of any deceased person who had a right of interment in any such un-consecrated ground vested in any burial board,

  37
  or provided under any Act relating to the burial of the dead, shall be entitled, if he think fit, to have such burial performed therein according to the rites of the Church of England by any minister of the said church who may be willing to perform the same."
  Clause, as amended, agreed to.
  Clause 11 (Relief of clergy of Church of England from penalties in certain cases).
  On the Motion of the LORD CHANCELLOR the following Amendments made: —
  In Page 4, line 21, instead of ("Schedule B.") insert ("Schedule C"); line 23, after ("whereas") add ("such of"); lines 23 and 24, omit ("except that numbered 2 in the schedule hereto,") and substitute ("as are numbered 1, 3, 4, and 5 in the said Schedule C"); line 35, instead of ("Schedule B.") insert ("Schedule C."); line 37, at the end of the clause add these words—
  ("Provided also that the word 'crime' in the said Schedule C. shall mean only an offence against the criminal law of this realm").
  EARL CAIRNSsaid, that he entertained a great objection to the clause, and doubted whether it should pass. It professed to follow the Letters of Business and the action of Convocation; but it did not in reality follow them at all. The recommendations of Convocation suggested an alteration of the rubric of the Book of Common Prayer; but the clause did not effect an alteration of the rubric. The Bill introduced into the Schedule a supposititious and hypothetical rubric which had no existence, could have none, and was never intended to have any. It said that, supposing there was such an imaginary rubric, the clergyman who acted under it should be absolved from any penalties for not obeying the rubric which did exist. He would still remain under the moral obligations imposed by the actual rubric; but he would be absolved from the legal penalties attached to disobeying it, on the hypothesis that some other rubric might exist, but which did not exist in fact. That did not seem to him to be quite a satisfactory mode of legislating. Parliament was absolutely deprived, under the clause, of its legitimate power of considering the recommendations of Convocation, and, if necessary, of modifying and altering them. It re-
  38
  cited, and truly recited, that Convocation had made certain recommendations, which were mentioned in the Schedule; but their Lordships could not exercise the right of altering a single word in the Schedule from beginning to end. He asked whether his noble and learned Friend on the Woolsack was able to produce, in the whole history of Parliaments, any instance in which such a course had ever been taken before? If the rubric was to be altered, it should be done by a law as clear and unequivocal as that which it was proposed to alter. The recommendation of Convocation was that on the request or with the consent of the kindred or the friends of the deceased it should be lawful to administer the following service of burial. Kindred or friends—which was it to be? If the kindred thought one way and the friends another, who was to prevail? Supposing the friends had one view of the life and character of the deceased, and of what should be the service at his burial, and the kindred had another, were the votes to be taken and the heads counted? Again, who were the friends? The question was one involving penalties which a Court of Law might be called upon to enforce; and was it possible that Parliament could deal with a law imposing a penalty in such a fashion as that? There were very grave objections to the clause; and he hoped that before the Bill reached a further stage these objections would be considered.
  THE ARCHBISHOP OF YORKsaid, he could not concur with the noble and learned Earl (Earl Cairns) in his criticism of the clause, and maintained that the rubric in the Schedule was properly constituted. If the rubrics could never be altered, then the noble and learned Earl's objection would have force. The law practically was broken now, and the incumbent said—"I am legally bound to read the whole of the service as it stands; but there are words in it which do not apply to your people, and I cannot use them. I mean to leave out one or two portions." That was the kind of case with which their Lordships had to deal. The noble and learned Earl, he was sure, was most sensitive as to the rights of the clergy; but there was on this matter a pressure which was quite intolerable. It was a matter connected with the churchyard; and when they

  39
  were dealing very hardly with the clergy, why did they not afford them the relief they could easily afford them? There was great need of some relief; and they were only asked to give a very moderate relief to the clergy, from whom they had taken much. He maintained that when such a rubric as that proposed was passed by Parliament it became law, and was binding on the Church.
  EARL CAIRNSsaid, this was not at all the case.
  THE ARCHBISHOP OF YORKcontended that it was in this manner the whole Book of Common Prayer and the rubrics had come into existence. As to the noble and learned Earl's objection that the words "kindred or friends" conveyed a vague or ambiguous meaning, he asked the Committee not to be led away by subleties and fine distinctions. The plain meaning of "kindred or friends" was those persons having charge of the funeral, and who alone would have the power to deal with the incumbent.
  THE ARCHBISHOP OF CANTERBURYsaid, his most rev. Brother had referred to ancient instances of the manner in which rubrics were formed, and obtained the sanction of law. He would direct the noble and learned Earl's attention to parallel modern cases. In the Lec-tionary Bill and the Occasional Services Bill, it would be found that that which was sanctioned by Convocation was afterwards approved by Parliament and obtained a legal sanction. He did not understand why the rules regulating the burial of the dead could not be altered in the same way. He was convinced that the noble and learned Earl was anxious that the clergy should be relieved from the great difficulty in which they were placed in this matter. He repudiated the idea that the Bill was only intended to enable persons who were not members of the Church of England to use services different from our own in our burial grounds. He had insisted on a former occasion that there was a number of persons who, being desirous of being buried by a clergyman of the Church of England in churchyards were not allowed so to be buried because of certain rubrics which at present existed, and he pointed out that Convocation had reported that some relief ought to be given in this matter. In consequence of that report, the noble and learned
  40
  Lord (the Lord Chancellor) desired that the clergy should be incidentally relieved; and he (the Archbishop of Canterbury) altogether protested against the idea which would sever the two parts.
  EARL CAIRNSobserved, that the effect of the clause would be by a side wind to make an alteration in the rubrics of the Church of England. The most rev. Prelate (the Archbishop of York) seemed to think that the Bill proposed to alter the rubrics; but that was exactly what it did not do, and that was exactly what he complained of. The cases he had cited were all instances in which the rubrics had been altered; but here it was proposed that the rubrics should remain, but that the penalties for its non-observance should be removed.
  THE LORD CHANCELLORcharacterized the argument which they had just heard from his noble and learned Friend (Earl Cairns) as a technical one. It was, in fact, super-hyper extra technical. In the case of the Shortened Service Act the same course, in substance, was followed as was followed in this case. None of the existing rubrics were altered by that Act; but it authorized many deviations from them by the clergy, in the performance of divine service, and the clergy, of all schools, had found no difficulty in acting upon that authority. With respect to the criticisms of his noble and learned Friend upon the substance of the clause, he could only say that they all appeared to him to rest upon false assumptions as to its effect. The Convocations and the clergy were not asking to be allowed to sit in judgment on Dissenters or others. All that was now proposed was that where the law did not permit of any service being used, the clergyman might, with the consent of the friends, use another service taken from the Prayer Book or the Bible; and that, where the clergyman now was required by law to use the full service, he might for the future, if the relatives or friends approved of it (not otherwise), use a shortened service, from which certain prayers, generally objected to by Dissenters, and which in some cases were the cause of conscientious scruples by the clergy, might be omitted. There would be no difficulty about the persons to give the consent; the term "relatives or friends" would mean, as in the rest of the Bill, those who had the charge of,

  41
  and were responsible for, the burial. He hoped that neither in this House, nor the other, would they be induced to disregard the wishes or the conscientious scruples of the clergy. The House could relieve the Nonconformists of the disabilities imposed upon them by law; and they could also in this way, to some very moderate extent, relieve the clergy of the disabilities imposed upon them by law. If they were to enter upon the question of altering the Prayer Book they launched into an interminable controversy. It would be most harsh— he had almost said it would be most unjust—to the clergy if this provision were not allowed to remain in the Bill, for the most bitter taunts had been from time to time levelled at them by Dissenters on account of the unsuitability of the Burial Service under certain circumstances.
  THE BISHOP OF OXFORDsupported the clause.
  THE LORD CHANCELLORsaid, he would consider whether some improvement could not be made in it upon the Report to meet the difficulties suggested by his noble and learned Friend. (Earl Cairns).
  LORD ORANMORE and BROWNEcomplained that the clause gave permission to the clergy to use any hymns and anthems at their discretion; that in the last edition of Hymns Ancient and Modern there was one hymn invoking the intercession of Saints, and others by like invocation of the Virgin. Considering the contempt of the law shown by Mr. Mackonochie and other, it appeared to him that the clergy of the Church of England should be restrained, instead of encouraging a lawless spirit by such enactments as were contained in this clause.
  Clause, as amended, agreed to.
  Clause 12 (Application of Act), and Clause 13 (Short title of Act), severally agreed to.
  Schedules A and B read, and agreed to.
  On the Motion of the LORD CHANCELLOR, the folio wing Amendments made: —
  In page 5, after ("Schedules to which this Act refers") insert a new Schedule to be headed ("SCHEDULEA."), as follows:—
  Notice of Burial.
  I, of, being the relative [or friend, or legal representative as the case may be, describing the relation, if a relative having the charge of or being responsible for the burial of A. B., of, who died at in the parish of, on the day of, do hereby give you notice that it is intended by me that the body of the said A.B. shall be buried within the [here describe the churchyard or graveyard in which the body is to be buried,] on the day of at the hour of, without the performance in the manner prescribed by law of the service for the burial of the dead according to the rites of the Church of England, and I give this notice pursuant to the "Burial Laws Amendment Act, 1880."
  To the Rector [or, as the case may bc,] of
  Page 5, line 2, for ("Schedule A.") substitute ("Schedule B."); line 9, for ("Schedule B.") substitute ("Schedule C."); page 6, line 19, omit all the words from ("8. Insert, &.") down to the end of the Schedule inclusive.
  Postponed Preamble agreed to. House resumed.
  The Report of the Amendments to be received on Friday next; and Bill to be printed as amended. (No. 86.)
  House adjourned at half past Ten o'clock, to Thursday next, half past Ten o'clock.