A contribution to the settlement of the burials question

by Arthur Charles Hervey

A CONTRIBUTION

TO THE

SETTLEMENT OF

THE BURIALS QUESTION.

BY

ARTHUR CHARLES,

BISHOP OF BATH AND WELLS.

PRICE TWOPENCE.

LONDON:
P. S. KING, KING STREET, WESTMINSTER.

WELLS : JACKSON.

March, 1877.

TORQUAY:
PRINTED AT THE "DIRECTORY" OFFICE

A Contribution to the Settlement of the Burials Question.

The following pages are not addressed to one-sided partizans, but to those who honestly wish to ascertain what is the right thing to do, and then to do it. They are written with the desire of finding out how far the views of the opposing parties coincide, where they diverge, what is the cause of the divergence, and how far it is possible to bring them back to coincidence again. It is certain that there must be a right course to be pursued; why should it be impossible to find out what that course is, and for all right-minded people to agree in it?

A brief statement of the actual state of the case will be the best thing to start with.

By the present law of England, the provision made for the burial of the dead is of a twofold nature. In most of the towns and considerable populations, there are cemeteries in which Churchmen and non-Churchmen have equal rights of sepulture according to the rites of the community to which they respectively belong. And this provision is said to apply, at the present time, to about 14,000,000 of the population of England and Wales. For the remaining 8,000,000, the provision is of a different character. Here the churchyards are the provision which the State makes for the burial of the dead, by giving to every one the right to be buried in the churchyard of the parish in which he dies; but subject to the necessity of being buried by the clergyman of the parish, and with the Church's Burial Service.^[1]

It is with regard to this portion of the population that the difficulty arises. The non-Churchmen object to their dead being buried by the ministers, and with the service of the Church to which they do not belong; Churchmen object to any ministrations but those of the Church being used in the precincts of the Church. The difficulty is to reconcile these conflicting views without injustice to either party.

Now, it is not difficult to see how each party approaches the subject. The non-Churchman says, The law of the land assigns to me the churchyard as the place in which I have a right of burial. That right is clogged with a condition quite out of keeping with those rights of conscience, and with that religious liberty, which are universally acknowledged at the present day in England, and which I, as an Englishman, claim as my inalienable inheritance. I demand, therefore, that, while I retain my right to burial in the churchyard, the obnoxious condition be removed.

The Churchman says, By the common law of England, by the Statute law, by immemorial custom, upon every ground of justice, and fairness, and decency, in accordance with all acknowledged ecclesiastical principles, the churchyard, like the church, which is a part of it, belongs exclusively to the Church, and all ministrations in it can only be those of the Church's Ritual. To force other ministers and other services into the Church's sacred ground would be an act of tyranny and oppression, which nothing but force could induce us to submit to. Hence it appears that the divergence of views expressed in these two lines of reasoning arises, like most other differences, from a difference of meaning attached to the word or thing which lies at the root of the argument. The thing about which the dispute here is—viz., the churchyard—in the mouth of the non-Churchman means national burying place, in the mouth of the Churchman it means churchyard. Which is it? Did the Church find certain National burial-places, appropriate them to her own use, and clog the use of them with certain conditions of her own? Or did the State require the Church to give a place of interment in her burial grounds to all persons dying in the parish, on the condition that only the Church Service should be used? The latter, no doubt, is the true historical view. Churchyards have always been what their name imports. That name itself, their position round the church, the fact of their consecration, the exclusive ministrations of the clergy of the Church in them in all ages down to the present time,^[2] the language of the Rubrics, and, in short, everything that we know about the churchyards of England, demonstrate that the oldest, as well as the most recent of them, are primarily churchyards, and only secondarily national burying places. The right of burial in the Churchyard attaching to all persons dying in the parish sprung from the principle that all British subjects are members of the National Church. According to the same theory, all parishioners, i.e., all British subjects resident within the parish, have a right to a seat in the parish church. In like manner also, before 1836, the Church Register of Baptisms was also the only civil register, and except he was married by a priest of the Church no one could be married at all. And if we go a little further back in our history we shall find that not only had every parishioner a right to a seat in Church, but that he could not worship God anywhere but in church without being subject to severe pains and penalties.

The provision, therefore, for the burial of all parishioners in the churchyard was exactly of a piece with the provision of seats for the living in the church, for the registration of all children in the parish register, and for the marriage of all citizens, and the registration of all marriages, by the parish clergyman. It was a provision natural for the times in which it was made, in accordance with the opinions and feelings of those times, and meeting more or less satisfactorily the wants of those times.

But it does not meet the opinions and feelings and wants of the present day. It is an arrangement which is not satisfactory to the Church; it is one to which non-Churchmen are beginning loudly to object. The Legislature, therefore, is bound to reconsider the existing provision for the Burial of the dead, and to bring the laws relating to the subject into harmony with the feelings and wants of the great community for which she legislates. The question is how shall this be done.

It is an acknowledged principle of English legislation to be guided by precedents, to run upon the same legal and constitutional lines as those upon which previous legislation has run, at least whenever the requisite reforms can so be brought about. It is, therefore, obvious to enquire, when we are called upon to change the laws of burial with a view, as it is said, to conceding to non-Churchmen their full rights according to English principles of civil and religious liberty, how has the law proceeded in securing to non-Churchmen such rights in regard to other matters.

1. In regard to public worship. By 22 Car. ii., c. 1., any person present at any conventicle where five or more persons should be assembled was liable to be fined 5/- for the first offence, and 10/- for the second; the preacher was liable to be fined £20 for the first offence, and £40 for the second and subsequent offences; and the owner of the house where the meeting was held was liable to a penalty of £20. When this gross tyranny was abolished, and liberty was given to every subject to worship God according to his own conscience, by the Act of Toleration and subsequent Acts, the Legislature did not give Nonconformists power to have their own services in the Church, but allowed them to provide buildings for themselves. The Nonconformists did not say, We have a common law right to the use of the Church; we claim therefore as a right the free use of the Church for our own services, and our own Ministers; but they were content to provide chapels for themselves, and have been content to do so down to the present time.

2. Down to the year 1836, the only civil register of births was the Church Registry of Baptisms. Every citizen who wished to have the birth of his child registered was compelled to have that child christened by the clergyman of the parish, and registered in the parish register. When the Legislature remedied this grievance it did not give the right to officiate at baptisms in Church to the ministers of different denominations, but it established a system of registry of births and deaths wholly independent of Church or Dissent, leaving baptism to be administered as a religious rite by Churchmen and Dissenters in their respective places of worship, and according to their respective modes of service.

3. Down to the year 1836, no one could be married in England except by a clergyman, and with the service of the Church of England. When the Dissenters very naturally resented this, and asked for relief, the Legislature (6 & 7, Will. IV.) did not give the right to Dissenting ministers to marry members of their own denomination in the Church with a service of their own, but provided by law the means of being legally married in any registered chapel, with their own rites, or at the Registrar's office without any service, if they so chose. In all these cases the grievance of non-Churchmen was removed, the Church's rights were equally respected.

But now, when we are asked to remove the last remaining grievance, as it is said, of non-Churchmen, that of being compelled to be buried by the clergyman, and with the Church Service, if buried in the churchyard, we are asked to run off the old lines, entirely to leave all precedents, and to pursue an entirely new method. We are asked to abandon the principle upon which all those changes of the law have been made which have gradually secured to non-Churchmen that full measure of religious liberty which they actually enjoy, and to act upon a new principle which will impose more galling fetters upon the Church than those which it removes from non-Churchmen. And we are asked to do this in order to remove a grievance which has already disappeared from two-thirds of the population, and which is rapidly diminishing every year. Can this be a statesmanlike method of dealing with an important question, which deeply stirs the feelings of a very large portion of the community?

But is the present grievance at all analogous to those previous ones of which we have spoken? The Nonconformist in Charles II.'s reign was not permitted to worship in a house or chapel of his own at all; the child of the Nonconformist in William IV.'s reign could not be registered at all unless he was baptized in Church; the Nonconformist of 1835 could not be married at all unless he was married in Church. Is there anything to prevent the modern Nonconformist from providing himself with a place of burial as his ancestors provided themselves with chapels as soon as ever the law permitted them to do so? There is nothing whatever to prevent him; and the present grievance bears no analogy whatever to those previous grievances, which were very real ones.

But this leads us to see what is the real grievance of non-Churchmen, i.e., of all British subjects who are not members of the Church of England. It is that, whereas the State provides a place of burial for Churchmen, it makes no satisfactory provision for the burial of non-Churchmen, and therefore the question at once arises whether it is not the duty of the State to provide for all her citizens, whether Churchmen or non-Churchmen, Christians or non-Christians, on a footing of perfect equality, national burying-places in the various parishes of the land, just as the State provided a National Registry of Births, and Deaths, and Marriages.

Looking, then, at the question in this light, it seems that it would be very desirable to follow up the Cemeteries Act, and apply gradually to the whole country the same provisions which are now applied to two-thirds of the population. If an Act were passed prohibiting any further enlargement of churchyards, and substituting for such enlargement the acquisition, as the necessity might arise, of cemeteries, to be bought and kept up by rates and a fixed portion of the burial fees, the burials grievance would disappear entirely in about ten or fifteen years. Every year would sweep away from one to two hundred parishes in which the grievance exists, and, in the meantime, silent funerals might be permitted. Leave, too, might be given to parishes to close the churchyard as soon as they saw fit, even if not full.

It is not the design of this pamphlet to give the details of a measure, but only to indicate the lines on which a measure might be framed, which would meet fully the wants and satisfy the just claims of the non-Church portion of the community without infringing upon the rights, or wounding the feelings of, Churchmen. No doubt many Churchmen would be sorry to give up the churchyard as the place of burial, but two-thirds of the community have already been obliged to sacrifice such sentimental, or? if you will, pious feeling, to great national exigencies. It is not, therefore, too much to ask the remaining third to give up their prepossessions for the sake of removing what a large body of their fellow-countrymen feel to be a grievance, and for the sake also of averting what would be a real injury to the Church, the handing over of our churchyards to every body, not only of Dissenters, but of Deists, Secularists, or Atheists, who may be included under the designation of British subjects. For it is obvious that any new Burials Bill must provide for the burial of all persons dying in England, whether Christians or not.

As regards the expense of providing Cemeteries, if existing churchyards are not closed till they are full, there will be very little additional expense beyond what must have been incurred by the enlargement of the churchyard; and in every case, if the parish is allowed to borrow upon the rates, and the period of repayment is extended over, say, thirty or fifty years, the expense will fall lightly upon the present generation, and will be distributed amongst those for whose benefit in years to come the Cemetery will have been provided. On the whole, the points to be borne in mind by all who desire to act fairly and impartially in the matter are:

1. That to take away the churchyards from the exclusive possession of the Church would be to act upon a principle unknown hitherto in England to the Legislature, and which must lead to the eventual secularization of the churches likewise.

2. That any relief given to non-Churchmen must be given so as to include non-Christians, who have national rights as much as Christians have.

3. That it cannot be right to relieve a grievance of one portion of Her Majesty's subjects by inflicting what would be felt to be as great, or a greater grievance, upon another, not less numerous portion.

4. That the provision of Cemeteries as the future national burial places is an obvious and easy method of removing entirely the grievance complained of, without doing any injury to the Church of England, or wounding the feelings of her members.

5. That it is to be presumed that the great bulk of the non-Churchmen of England will be glad to have their grievance remedied in a way palatable to the feelings of the members of the Church of England, rather than in one calculated to produce a lasting irritation.

6. That it would be a most unstatesmanlike and short-sighted measure to remedy a very limited evil by the introduction of a principle capable of unlimited application.

It has been the object of the writer of the foregoing pages to avoid everything of a controversial or irritating nature, and to treat the subject with impartiality and truth. As a member of the Legislature, he feels that it is his duty to consider the rights of those who are not members of the Church of England as much as those of Churchmen; but he does not think it can be right or politic to sacrifice the rights of the Church to the wishes of non-Churchmen any more than the rights of non-Churchmen to the wishes or supposed interests of the Church. He has also omitted a great many strong and obvious arguments against Mr. Osborne Morgan's Burials Bill, wishing to present, in the simplest form, that view of the question which seems to him to have most weight. But having stated the principles on which he thinks a measure ought to be based, he ventures to express the hope that by the good feeling and fairness of men of all parties, this distressing question may be settled for ever in a way vexatious to no one, and acceptable to all.

1. Except in the case of unbaptized or excommunicate persons, or those who have laid violent hands upon themselves.
2. The time of the Commonwealth is an exception to this statement, but one which in no wise weakens the argument.