THE DEAN OF ARCHES ON GRAVEYARDS.
SIR R. PHILLIMORE has demonstrated the necessity of a Burial Bill of somewhat more extensive scope than the one which has so often failed to pass the House of Commons. He has given a decision in the Owston case, the effect of which is not only to enable the incumbent of any English parish to refuse the title of " Reverend " upon a gravestone to any Non- conformist minister, but to make him sole judge of the character, status, and future prospects of anv deceased person whose friends may desire his interment in a national burial-ground. Nobody, it appears, has any clear right there except the parson and his pig. As our readers will doubtless remember, Annie Keet, the youngest daughter of the Reverend H. Keet, Wesleyan Minister, was buried, in 1874, in the churchyard of Owston, Lincolnshire, and her friends wished to put over her grave a stone, with an inscription stating among other things her parentage. The Vicar of. Owston, Mr. G. E. Smith, refused. however, to sanction the inscription, alleging that he could not tolerate in his own graveyard the use of the word "Reverend" as applied to a schismatic. Mr. Keet appealed informally to the Bishop, Dr. Wordsworth, who supported the Vicar, in a letter in which he denied that a Wesleyan Minister was " a person duly qualified to minister the Word of God and Sacraments in a church," and the Wesleyans, highly irritated, applied to the Chancellor of the diocese for a citation. The Chancellor, a son of the Dean of Arches, refused the citation, on the distinct
ground that a Wesleyan Minister, being a schismatic, was not entitled to the epithet " Reverend," even if he was entitled to be styled "a Minister," and an application was therefore made to the Dean of Arches for a faculty. His lordship's judgment, pronounced on Friday week, proved to be unexpectedly wide. The Dean of Arches concedes the title of "Minister" to a Wesleyan pastor, saying, indeed, that it is his legal designation, as "Clerk" is that of the Incumbent, and leaves it doubtful, in a legal sense, whether he may not also be legally entitled "Reverend." He leans to the opinion that the title ought to be refused when claimed as of right, but doubts whether the Bishops' consent to sanction it would of itself be so illegal as to justify the Court of Arches in interfering to prohibit its use. That abstruse point, however, he declines to settle, but refuses the faculty claimed upon other and much wider grounds. The " churchyard is the freehold of the incumbent, subject to the right of the parishioner or stranger happening to die in the parish to simple interment, but to no more. Indeed, the incumbent has the right to pasture animals which do not injure the bodies interred in the churchyard, and every gravestone interferes with that pasture." It follows, of course, that any incumbent zealous for the fatness of his sheep or bullocks has a right to forbid the use of any gravestones at all, and that a custom hallowed to the English mind by centuries of association and invaluable for purposes of record is dependent entirely upon the sufferance of the Clergy. They have the right to turn graveyards into paddocks. A fortiori, the Incumbent can exact his own con- ditions for granting his consent "as to the character and size of the stone, the legality or propriety of an inscription on it, and the payment of a proper fee." That last remark, we may observe, en passant, will be new to the clergy, and we expect to hear at once of gravestones being converted into a more profitable source of revenue. By custom, some right of control has accrued to the Ordinary, but unless he differs with the Incumbent there is, in the case of a refusal to permit an inscription or the placing of a gravestone, no remedy whatever. No refusal can be illegal, and if not illegal, its expediency is for the decision of the Incumbent and Bishop alone. The Court of Arches has no right to interfere, and except the Court of Arches there is no Court to which application can be made. An in- cumbent in fact, if backed by his Bishop, is in managing his churchyard independent of any tribunal whatever. He has no responsibility for his use of a power which was certainly con- fided to him as a trust, to be employed with the "discretion" which the law imposes in every other case upon a public officer.
It is, of course, impossible to question the Dean of Arches' law. In the first place, what he says is law until the Judicial Committee of Privy Council says something different, its pre- sent habit of so doing being a mere accident ; and in the second, Sir R. Phillimore's character for erudition in the complex system he is appointed to administer is beyond all question. He may be suspected occasionally of bias towards clerical opinions, but he has never been suspected of ignorance, and this particular judgment is unusually clear and decided. We never, it is true, before heard of a trust which could be exercised without re- sponsibility to a Court, (for the Bishop interferes as Bishop, and not in his judicial capacity,) and can hardly believe that there exists in England such a possibility of wrong without a. remedy—for example, a Vicar might demand an inscription on a tombstone defamatory of the deceased—but Sir Robert Phillimore says it is so, and we have only to accept his decision as correct. And in what position does his decision leave the laity ? Upon a subject of the highest interest to social order, and which excites some of the keenest feelings of our nature, they are left in the national graveyards at the mercy, not to say the caprice, of the national clergy. Mr. Smith's conduct in refusing to allow the word "Reverend" to be attributed to a Wesleyan Minister was condemned throughout England as an exhibition of priestly arrogance, but it was moderation in comparison with conduct which would have been strictly within his legal rights. Mr. Smith might refuse the local publican a grave- stone because he sold liquor, or he might decline to allow one to a Unitarian because he denied in life the divinity of Christ, or he might insist on leaving out the word " widow" because the deceased lady had been married by a registrar assisted by a schismatic minister. He might insist on the erasure of the words "beloved wife" as untrue, and declare that the phrase "deeply regretted" was, if true, evidence of the incurable per- versity of the parish. He might publicly sit in judgment on every deceased parishioner, hold an inquest over his character, his religious opinions, and his personal status, and end by re- fusing to Dr. Colenso the title of "Bishop" because he was a heretic, to the squire his head-stone because he had attended operas, and to the tradesman any stone at all because he had refused his subscription for the new lectern. Indeed, he might go farther, and refuse to sanction a gravestone unless it " told the truth,"—that is, unless it expressed the certainty of the deceased heretic's damnation. And there would be no appeal from his decision to any constituted Court claiming to interpret the law, and not merely to give ex- pression to a Bishop's views. When Incumbent and Bishop pull together, their action must legally be held to be expedient and discreet. It is vain to say that such cases could not occur, that the Bishop would interfere, and that a Bishop is always trustworthy. We know from the Coley case what Incumbents may, however rarely, be ; and what Bishops may be, from Dr. Wordsworth's letter. If there is a question on which Noncon- formist Ministers are sensitive to folly, it is the ecclesiastical status indicated in the use of the term Reverend." If there is a section of the Nonconformists among whom ministers are powerful, it is the Wesleyan. And if there is a body of Nonconformists whom it is advisable and possible to compre- hend within the limits of the Church, it is the Wesleyan. And yet it is this body whose ministers a Bishop affronts upon their tenderest points in a letter studiously made not judicial but argumentative, written not with the regret of a judge who must carry out the law, but with the acidity of a controver- sialist who thinks he has his enemy on the hip. If discretion is absent on such an occasion, where are we to expect to find
That Incumbents will be found to use indiscreetly the powers attributed to them by the Court of Arches, no one who studies our parochial history or knows how frequent graveyard scandals are can affect to doubt, and their indiscretion will be henceforward more galling to its subjects because there is no legal remedy. That—the absence of a tri- bunal bound to hear complaint—is the substance of Sir R. Phillimore's judgment, and it indicates a situation which Eng- lishmen never have borne contentedly or in silence. They do not like Ecclesiastical Courts as at present constituted, but still they resort to them because they are Courts,—tribunals where law is sure to rule, and to be accurately expounded. But if these Courts, however properly, deny their own jurisdiction, declare that Incumbents when acting in certain ways are out- side law, and assert their own inability to decide what is or is not a justifiable exercise of power, Englishmen will very speedily question their right to continue in existence. It is nonsense to talk of Bishops. English Churchmen respect Bishops in their places, but they want the law, ecclesiastical as well as civil, to be expounded by lawyers, who can be trusted at least not to be swayed solely by ecclesiastical bias. Sir R. Phillimore is anathema niaranatha to Evangelicals, but the bitterest Evangelical in the country would trust him to expound Law, law as it stands, not as it ought to be, sooner than the ablest of Evangelical Bishops. Ecclesiastical Courts exist because Churchmen are not contented to trust Bishops when the subject- matter is their own right in the national Church, and if the Ecclesiastical Courts are powerless, will soon pray for the con- trol over Bishops which—in any Protestant country, at all events—the Voluntary system gives. If Sir R. Phillimore's judgment in the Owston case is accurate—which of course it is until it is reversed—the very least that lay Churchmen can, in self-respect, demand, is an Act declaring that the Incumbent is, in using his right over the graveyard, a trustee and not a freeholder, and his discretion in the use of his authority sub- ject to the revision of the usual tribunals. An Episcopal re- vision in such cases is but another phrase for anarchy, for per- missions may be refused in Lincoln which are granted in York and Peterborough. It not only might happen, but probably would happen, that if Mr. Feet were buried in Lincolnshire his flock could not style him "Reverend" on his tombstone ;
if the corpse were carried into Yorkshire, no Incumbent could refuse to allow the title. That is not the dominion of an ec- clesiastical law, but an instance of the absence of any law at all. Under the decision in the Owston case, the Ordinary retains his right of controlling graveyards, but is 'exempted from the Courts if he agrees with the Incumbent, and we may have therefore differences to which those satirised by Sydney Smith are trivial. Dr. Wordsworth may content himself by denying the title of "Reverend" to a Nonconformist minister, while Dr. Magee may refuse that of " Churchwarden " to any such officer who happens to be a Dissenter, and Dr. Moberly may decline to allow the use of the description " wife " to any woman not married in a way he ecclesiastically approves. If Incumbent and Bishop agree, there is, as the law is now expounded, no legal tribunal competent to punish an incumbent for insulting his parishioners in their graveyard.
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