Committee Reports > List of Committees > Private > 1965 > Joint Committee on the Huguenot Cemetery Dublin (Peter Street) Bill, 1965 > Report - Huguenot Cemetery Dublin (Peter Street) Bill, 1965 [Private]

OIREACHTAS EIREANN

JOINT COMMITTEE ON THE HUGUENOT CEMETERY DUBLIN (PETER STREET) BILL, 1965.

MINUTES OF EVIDENCE

Monday, 4th October, 1965.

The Committee sat at 2 p.m.

DEPUTY G. SWEETMAN in the Chair.

Members Present:—Deputy D. Larkin, Senators W. A. W. Sheldon, J. J. Nash and J. B. O’Quigley.

Mr. W. R. C. Parke, S.C. and Mr. Brian McCracken, B.L. (instructed by Messrs. Moore, Keily and Lloyd), Solicitors, Parliamentary Agents, appeared for the Promoters, the Trustees of the French Huguenot Fund.

Mr. Herbert R. McWilliam, B.L. (instructed by Messrs. McMahon and Tweedy, Solicitors, Parliamentary Agents) appeared for the Petitioner, Mr. William Percival le Clerc.

The Chairman having read the appearances,

Mr. Raymond O’Neill: I hold a watching brief on behalf of Messrs W. & R. Jacob & Co. Ltd. who are interested in this matter. I appear with Mr. Barron. I appreciate that I have not any right of audience but I am here to give any assistance I can.

Chairman: We appreciate the offer of assistance but I am in some doubt, having regard to Standing Orders, as to whether I am entitled to hear you at all even on the assistance line. I shall now call upon Mr. Parke to open the case for the Promoters.

Mr. Parke: This Bill, as the Committee are aware, is promoted by the Trustees of the French Huguenot Fund and its object is to enable this cemetery which is situated at Peter Street in the city of Dublin and which is vested in the Trustees, to become vested in Messrs W. & R. Jacob & Co. Ltd. freed and discharged from all disabilities which would otherwise attach to a disused graveyard. With that object, it provides for the disinterment of all human remains now in the cemetery and for their reinterment in a plot to be acquired in a Dublin cemetery, subject to the conditions and stipulations which are provided in the Bill.

As I apprehend my task before you, it is in the first instance to prove the Preamble of the Bill and it will be to that end that my observations will be directed. The Preamble consists of six paragraphs and I do not think any problem arises in so far as proving the first four of them is concerned: they are matters which can be proved by the production of certain documents, but I apprehend that the portion of the Preamble which will most concern the members of the Committee and which will be challenged by the petitioner is paragraph 5 which reads:

AND WHEREAS it is expedient that the said cemetery be closed and that intermentstherein be discontinued and that W. & R. Jacob & Co., Limited be empowered to remove the remains of all deceased persons therefrom and use the said cemetery for and in connection with its undertaking.

The last paragraph of the Preamble I do not think is likely to be challenged by the petitioner.

To lay before you the history of this cemetery and the circumstances giving rise to the Bill will, I am afraid, involve me in a certain amount of history. I do not think any of the historical matters to which I shall refer will be in issue and it occurs to me that if it commends itself to the Committee, a convenient and possibly shortened way of doing this would be to place before the Committee and have available for each member a copy of an affidavit sworn by the promoters when they applied to the High Court for liberty to introduce this Bill.

This affidavit was very carefully prepared by my learned friend, Mr. McCracken, and it sets out the history of the graveyard and all the matters to which I shall refer. If my friend has no objection, it would be a very convenient way of presenting the history to open this affidavit to the Committee.

Mr. McWilliam: I have no objection. I shall be commenting on two or three points in the affidavit.

Mr. Parke: I really do it in order to avoid taking up the time of witnesses going into these lengthy historical matters. It will be necessary briefly to go through these historical matters so that the Committee will be in a position to judge how this cemetery came to be used and ceased to be used.

Chairman: Is any one or are all of the deponents to this affidavit available?

Mr. Parke: I think we have three of them here.

Chairman: It will be necessary to have formal evidence from at least one deponent.

Mr. Parke: It was my intention to call them. The Huguenots, members of the French Reformed Church, began to come to Ireland about the middle of the seventeenth century. Although at that time, under the law of France, they had, at least nominally, complete freedom of religious profession, things were becoming more difficult for them and numbers of them went to neighbouring countries. They also came to Ireland where they began to form a community. They were in difficulty in Ireland under the existing legal provisions relating to the practice of religion because the seventeenth century was not a century distinguished for its religious toleration. At that time there was an established church in England and Ireland and the practice and public profession of religion otherwise than in accordance with the established church was in some way subject to legal disabilities.

However, it was desirable for the economy of Ireland that these Haguenots, who were tradesmen and skilled persons, should be allowed to settle. In England, and subsequently in Ireland, provision was made whereby they could have their separate religious services. Provision was also made whereby these could be conducted in French and they could appoint their own Ministers themselves to conform to the disciplines of the established Church of Ireland. Those Ministers were obliged to take orders in that church. A place of worship was provided for them in St. Mary’s chapel in St. Patrick’s Cathedral. That community became known colloquially as the Conformist Huguenot Congregation. We are not directly concerned with that community at present but we will be concerned with it when it comes to considering the charitable funds which were accumulated by it.

After King Louis XIV revoked the Edict of Nantes in 1685, a very considerable influx of Huguenots arrived in Ireland. Many of these were not willing to conform to the disciplines of the established church. Eventually, in order to accommodate them—it had been considered to Ireland’s advantage that these people should settle here—an Act of Parliament was passed, the Statute 4, William and Mary, Cap II, 1692, which relieved these people from certain of the provisions of the Act of Uniformity. That was an Act which imposed adherence to the established Church on certain people. They were permitted to set up a community, having its own disciplines, which was that of the French Reformed Church and having its own Ministers who did not take orders in the Church of Ireland.

This community was established in the following year, 1693, and that is the Non-Conformist Huguenot congregation with which we are principally concerned. They had not originally a church but they commenced their services in a house in Bride Street and they acquired a cemetery on the north side of what was then Stephen’s Green. We all know it now as Merrion Row but at that time Stephen’s Green extended further than it does now. It was in that block that the first Non-Conformist Huguenot cemetery was provided. Subsequently their church was considered to be too small and they founded a church in Lucy Lane, now Chancery Place. In 1701, an offshoot of this church was established in Wood Street.

The community continued to grow and eventually they purchased a plot in Peter Street on which they erected a church with a graveyard attached. That church was dedicated in the year 1711. I should like to refer to this matter because some point may be made on the question of dedication or consecration and on which I will make some observations at a later date. The actual plaque which was on the church says that this church et l'ont dedié á Dieu in the year of our Lord 1711. I think I am correct in saying these words mean either dedication or consecration. It apparently refers to the church. Whether or not the surrounding graveyard was ever dedicated or consecrated or whether such practice would have been required or usual in such a community at that date, I am unable to assist and I think there is no evidence available on that. Now this church and plot were held under a lease from the Domville family, a short lease which was ultimately extended by a longer lease of the 15th September, 1775.We believe it was made to Trustees on behalf of the church but the original has been destroyed by the fire in the Public Record Office. In 1875 the Trustees acquired the fee simple of this plot in the Landed Estates Court and the original of that document was also destroyed in the Public Record Office but we have a certified copy of the memorial of that deed which I will produce.

In tracing this matter of title I have jumped perhaps deliberately because I wish to show that the plot is held in fee simple but long before the Trustees of the church ever purchased the fee simple the church had ceased to exist. What apparently happened during the 17th and 18th centuries was that the first generations of the Huguenots, whether they belonged to the conforming or the non-conforming bodies, were naturally French speaking; more French in their outlook than Irish and they maintained their churches and supported them very considerably. Congregations of both the conforming and non-conforming churches were apparently quite large. Also there was no antagonism of any kind between the two communities; they were on the best of terms and they even exchanged ministers from time to time and assisted each other in every possible way. With the passage of time both communities became gradually absorbed, principally into the Church of Ireland but, no doubt, others may have adhered to other disciplines.

But the situation was that before the year 1817 both the Lucy Lane and Peter Street churches were closed because there were no longer any congregations sufficient to justify their remaining in existence. The church in Lucy Lane was pulled down about the year 1825 in pursuance of the scheme sponsored by the Commissioners for Wide Streets for widening of the bridge at the end of what is now Chancery Place and the Peter Street church was pulled down somewhere before 1840; the exact date cannot now be ascertained and a small mortuary chapel was erected on this site. So that from 1840 there was no longer any church in Peter Street; there was a graveyard and mortuary chapel. The graveyard in Peter Street was first used for an interment on the 21st January, 1713 and the last interment was in 1869. There seems to be some doubt about this date. The affidavit, I think, says 1869 at paragraph 11. I am told that that is a misprint in the affidavit and it should be 1879.

Chairman: The Bill is correct then?

Mr. Parke: Yes.

There was a burial in Merrion Row in 1901 with which we are not directly concerned but I mention it merely to show that even in the Merrion Row cemetery there have been no interments since 1901. Such registers as are available show that between 250 and 300 persons were interred in Peter Street. The register, having some gaps in its periods, was published by the Huguenot Society of London as volume 25 of their publications and that will be available if required for the Committee.

I should also say that not only have there been no interments since 1879 but. as far as the personal knowledge of the existing Trustees is concerned, there have been no inquiries concerning the cemetery of any kind for more than 20 years; possibly for a great deal more than 20 years but they themselves can only say that no person has inquired as to the persons buried in the cemetery or made any other inquiry about the cemetery for more than 20 years.

Now, gentlemen, I have to turn, if I may, to the charitable funds vested in the promoters of the Bill because it is with the object of augmenting these funds and for no other object whatsoever that the promoters are presenting this Bill. Both the non-conforming and conforming Huguenot congregations had charitable funds subscribed by their members and employed both in the sustentation of their churches and the relief of the poor of their respective communities. It would appear that they worked very amicably together because they did not apparently inquire too vigorously as to whether a person belonged to one or other of these congregations, provided that he was of Huguenot descent and provided that he was not astute enough to get a grant from both funds. These funds became fairly substantial and they were administered by what were called the consistories of the two churches and they were held by Trustees appointed with the approval of these vestries and they continued to function for very many years after the churches closed down.

I should perhaps have mentioned that the conforming Huguenot congregation had ceased to exist slightly before the non-conforming but long after both communities had ceased these charitable funds were administered and the vestries used to meet. The last meeting of the vestry of Peter Street with which we are concerned was held on the 12th December, 1889 and the last appointment of Trustees of that fund had been made on the 21st August, 1885. Now the funds of the non-conforming community were reasonably substantial and amounted to something over £8,000 in the beginning of the 1890s but unfortunately there was a defalcation in the firm of stockbrokers of which two of the Trustees were members. As a result the funds at that time standing at something over £8,000 were reduced to £908 11s. 4d. and that was made up from two sources. £760 18s. 10d. was paid on the bankruptcy of one of the members of the firm and the sums of £41 10s. 11d. cash and £106 1s. 7d. Consols as well were recovered from the estate of the deceased member of the firm which was administered under order of the court. These figures are all contained in paragraph 7 of the affidavit. These sums were, in fact, lodged in court to the credit of the Trustees of the French church and they remained there for over 20 years, because after the death of the surviving Trustee—a man called James Tardy—there was nobody able to claim them. The consistories had ceased to function and there was no means of appointing new Trustees. For twenty years these depleted funds remained in court. In the meanwhile, a scheme had been settled in the Chancery Division of the High Court of Justice in Ireland relating to the funds of the Conformist community and that was settled by a scheme approved by the Master of the Rolls in 1902—the Order relating to that scheme will be produced and I will deal with it in some detail in a moment.

In 1917, an application was made to the Court with the object of incorporating these two funds, that is, the fund settled by the scheme of 1902 belonging to the Conformist community and the remains of the non-Conformist community funds, represented by £980 11s. 4d. and, by an Order of 24th April, 1917, the original Scheme of 1902 was amended by bringing in these funds—the £908 in the non-Conformist fund—and amending the charitable trusts provided for in the Scheme so as to make this Scheme suitable for a charity in which part of the funds came from the non-Conformist fund. Furthermore, by that Order, the graveyard in Peter Street, with which we are now concerned, was for the first time vested in the Trustees of the Huguenot Fund. The position about the graveyards presumably was that from the time when the churches ceased to function there was nobody who owned them. The churches were gone, the Trustees for those churches had disappeared and they were without a legal owner. It was considered expedient in 1917 that these two graveyards belonging to the non-Conformist community should be vested in the Trustees of the Huguenot Fund, subject to an obligation upon them to maintain them out of the fund. The charitable trusts on which the funds are now held are those set out in the 1902 scheme as amended by the 1917 scheme and they are set out in some detail in paragraph 9 of the affidavit. Perhaps I might read that paragraph. It seems a convenient method of setting out the trusts of the fund. Paragraph 9 of the joint affidavit reads:

By Order of the said Court dated the 24th day of April, 1917 and made by Mr. Justice Barton the said Scheme was amended by providing (among other things) that the persons who should be nominated as objects of the Charity should be poor and deserving persons who should produce satisfactory proof that they were Protestants of Huguenot descent. It was further provided by the Scheme as amended that the relief given by the Trustees to persons so nominated as aforesaid should consist of weekly allowances of such amount as the Trustees should from time to time by resolution direct, but no such allowance should at any time exceed the sum of seven shillings and should further consist of such grants and loans (with or without interest) out of the Income of the funds of such amounts and upon such terms as the Trustees should from time to time by resolution direct for the purpose of advancing such persons in education or business or other similar purpose, and that it should be lawful for the Trustees from time to time by resolution to grant out of the Income of the funds a sum not exceeding Three Pounds towards the expenses of the funeral and interment of any deceased person who had been or was eligible to have been in receipt of relief from the said fund. The said Order further appointed three new trustees and vested in the new trustees and the continuing Trustees in fee simple (among other lands) the grave yard situate in Peter Street therein referred to as “the French Graveyard (disused).” By the said Order it was also Ordered that the Commissioners of Charitable Donations and Bequests for Ireland be at liberty to pay to the trustees of the said Charity the monies and stocks representing the monies and Consols referred to in paragraph 7 hereof to be applied by the Trustees pursuant to the said Scheme. By paragraphs 21 and 22 of the said Scheme as amended it was provided that if any questions or difficulty should arise in the administration of the trust funds under the Scheme or as to the construction thereof the same might be submitted to a Judge of the Chancery Division of the High Court of Justice in Ireland at Chambers who might determine the same and that the Scheme might at any time be altered or amended by a Judge of the said Chancery Division sitting at Chambers on the application of the Trustees or of the Attorney General. We beg to refer to an Office copy of the said Order of the 24th day of April, 1917 and the Scheme as amended by that Order when produced.

Paragraph 10 (a) reads:

The relief given by the Trustees to persons so nominated as aforesaid shall consist of weekly allowances of such amount as the Trustees shall from time to time by resolution direct but no such allowance shall at any time exceed the sum of seven shillings.

The alteration by the 1917 Scheme in the beneficiaries under the 1902 scheme was necessary as it was a scheme dealing with both Conformist funds and non-Conformist funds.

Mr. McWilliam: Mr Parke asked me to intervene if I objected to any part of this. I do not object to what he has read but I will be submitting that that affidavit is not complete in that paragraph. I would ask him to read now paragraph 3 (a) of the scheme which was not read. He has only read you paragraphs 9 and 10 (a).

Mr. Parke: This is the scheme as amended.

Mr. McWilliam: Yes, that is what you were reading out.

Chairman: We all have copies of the scheme already. Page 2 of the Order.

Mr. Parke: Paragraph 3 (a) reads:

The Trustees may out of the capital or Income of the Funds now or hereafter to be vested in the Trustees discharge all rent or arrears of rent now accrued or hereafter to accrue due in respect of any Burial Ground now or heretofore or to become vested in or held by the Trustees under this Scheme and also all such funds as may be necessary or desirable to put all such Burial Grounds and the graves and tomb-stones therein in good repair and condition and to so maintain them.

I think I did mention that it was subject to an obligation upon them to maintain the graveyards out of the income of the fund. The scheme came into operation in 1917 and for the first time the Trustees became the owners of these two graveyards. Now, the graveyard in Merrion Row seems to have been not too bad; I have no particular instruction on that. But the graveyard in Peter Street was in an utterly deplorable condition. It had apparently been used as a rubbish dump for years by the inhabitants of that area. Tombstones were uprooted. The Mortuary Chapel was in ruins. The place presented an aspect of extreme dilapidation and decay. That was not the fault of the Trustees or anybody in particular. Nobody apparently owned the graveyard or had any rights concerning it until 1917. But the Trustees were faced with a situation in which they had an appallingly dilapidated graveyard on their hands and one which it would have taken a considerable portion of the capital of their trust funds to put into a proper state of repair.

At this point, I must introduce the person upon whom I think my friends will concentrate mostly, Messrs Jacob whose factory bounds this graveyard on three sides. I think my friend will probably regard Messrs Jacob as the principal target of his objection.

Mr. McWilliam: That is an optimistic view, Mr Parke.

Mr. Parke: This graveyard forms an enclave into the factory of Messrs Jacob. It is bounded on the fourth side by a high wall in Peter Street. There can be no doubt but that for many years Messrs Jacob have hopefully cast eyes on this plot and thought what an advantage it would be to them to acquire it. They commenced their negotiations in order to obtain it in 1917, almost immediately after this order.

There are a number of minutes of the Trustees covering this period and the various negotiations. I am reluctant to open them in full but I am also most reluctant to suggest there is anything in them I am not anxious to disclose. What happened, if I may summarise, is that at a meeting of the 12th December, 1917, the Trustees postponed consideration of the Peter Street Graveyard, Mr. Goddard undertaking to see Mr. Jacob on the subject. Apparently, Messrs Jacob made some approach in that year. On the 2nd July, 1918, Mr. Goddard reported that he had seen Mr. Jacob about the Peter Street Graveyard “who wants to buy it and said he might give £900 for it.” A sub-committee was set up to deal with Messrs Jacob as to sale and have power to apply to court for power to do so. On 28th March, 1919; “Messrs Jacob’s offer for the graveyard considered. It was proposed by Mr. Colvill and resolved that Mr. Goddard be authorised to sell the graveyard to Messrs Jacob for £600 on the terms of their letter of 12th March.” It appears the Trustees decided they had better be a bit more cautious at that stage. Apparently they took legal advice and on 12th December, 1919, it is recorded that they are to write to Messrs Jacob saying, in reference to their offer for Peter Street Graveyard: “We find that we are not in a position at present to carry out the conditions attached thereto.” There was a little difficulty about this and I am afraid one of the Trustees resigned. But it does not appear to be relevant to the matter in hand.

In 1924 a new proposition was put forward by Messrs Jacob. That was that they should have a caretaker’s agreement on this plot, they to put it into repair and maintain it. They were not to erect anything on it. That proposition was agreed to under an agreement of 1924, which I will produce, which was executed and under which Messrs Jacob were put into possession of the cemetery under a caretaker’s agreement. They proceeded to restore it and make it into a recreation open space adjoining their factory. They did that with great care and, I think, success. The graveyard now is a pleasant open space with a lawn in the centre. All the tombstones which had been lying about broken on the ground during the period of decay and which could not be identified and set up in their true positions are now lined against a wall. There are flower beds and it is pleasant and well kept.

Senator O’Quigley: Have you got a map?

Mr. Parke: I have the original map and lay-out of Jacob’s factory. We have copies of that. While it is being handed out I might also say that they renovated and dealt with the old mortuary chapel and turned it into a proper building. The map is in two parts. The lower white sheet shows the situation of the burial ground with the restroom, which was the former mortuary chapel, shown. It also shows the lay-out of Messrs Jacob’s factory surrounding it. At a later stage I might ask you to lay the other sheet over it, but I, for one, do not regard any evidence on that point as being relevant. At the moment I only wish to direct your attention to the white sheet with the yellow square on it.

Senator O’Quigley: What is the restroom?

Mr. Parke: That is used by Messrs Jacob for their employees during rest periods. There are tables and benches in it. They sit there apparently during their break periods. It is the restored mortuary chapel.

For a number of years afterwards Messrs Jacob made other approaches to purchase this plot. Many suggestions were put forward by them as to how this could be done. The Trustees on several occasions took the opinion of counsel and were advised as to whether they could do this or not. They were always advised that they could not do so without a private Act of Parliament. It was suggested by Messrs Jacob that they should promote such a private Bill, but the Trustees felt they were reluctant to do so having regard to what was then thought probable as the purchase price and the value of the plot. I do not wish, unless my friend wants me to do so, to read through all the subsequent minutes. If I could direct your attention to a minute of the 10th January, 1946, which says: “Mr. Taylor, who attended, said that Messrs Jacob had offered £316 for the Peter Street cemetery in 1919. Mr. Loftus Townshend had valued it at £912; the Trustees rejected the project as it would have required an Act of Parliament. The Trustees considered Messrs Jacob’s draft agreement to purchase Peter Street Cemetery and it was unanimously decided that they should not approve the proposed agreement; but they are of opinion that if an offer is made to them by Messrs Jacob to purchase the site of the Peter Street Cemetery the Trustees should apply to the Court for directions under paragraph 21 of the scheme.”

A minute of 31st May, 1946, stated: “Mr. Taylor reported that the Peter Street Cemetery had been valued by Messrs Hamilton and Hamilton, 17 Dawson Street, Dublin, on 29th October, 1945, at £750. Mr. Ashley Powell proposed that Messrs Jacob’s proposal should be put to the Court in a neutral manner by a senior counsel. He amended the draft offer accordingly. He suggested Mr. Taylor be asked to communicate with Messrs Jacob’s solicitor and hand him the amended offer for their approval. The amended draft was approved by the Trustees and given to Mr. Taylor.” Nothing was done about it at that stage. The Trustees, who will give evidence, will tell you that they did not feel justified in seeking the assistance, first, of the Court, and then if permitted by the Court, of the Oireachtas, in a scheme which could not very materially benefit the charity of which they were Trustees and one which would have been regarded with considerable misgivings by all of them. Further attempts were made and eventually Messrs Jacob wrote a letter to the Trustees on 31st December, 1961. The terms of that letter are perhaps not material and I do not propose to read the lot of it but it resulted in the proposal which is scheduled to the Draft Bill and upon which the Draft Bill is based and it provides that the purchase price for the cemetery should be £20,000.

Now, this proposal placed the Trustees in what cannot be denied was a dilemma. They were administering a fund which as I will show was hopelessly inadequate for its needs; they had an opportunity of being able to administer a fund which would be of great relief to those persons having calls upon them. The proposal provided that all remains would be disinterred and reverently reinterred. Giving the matter very anxious consideration, the Trustees felt that they could no longer refuse such a beneficial proposal in the interests of their charity and that it was their duty—not merely that they felt inclined, but that it was their duty—as such Trustees to go to the Court and ask the Court for leave to introduce a Bill giving effect to this proposal. On that application the Trustees recommended to the Court that it should be so accepted and a summons was issued in the High Court for liberty to issue this Bill on the 26th June, 1964. On the 20th July, 1964, there was a first hearing before Mr. Justice Kenny. The Attorney General attended and indicated that as advised he was going to oppose the Bill. Subsequently he withdrew his opposition and when the matter came to hearing twelve months ago, on 5th October, 1964, the Attorney General did not oppose but one of the appearances was the present petitioner who appeared and opposed the application. Mr. Justice Kenny had directed that advertisements of the application be inserted in certain papers and it was, presumably, in response to that advertisement that the petitioner appeared. In addition, a number of letters were received.

Mr. McWilliam: Just before you pass from that, might I mention with regard to that hearing that the matter was not argued in my presence? I was present on the second occasion and I was permitted to make my objections but I did not hear the arguments of the Trustees on that occasion. There was no argument delivered by them on that occasion.

Mr. Parke: I trust that my friend is not seeking to set aside the decision of the learned judge.

Mr. McWilliam: No.

Chairman: I understood you to say, Mr. Parke, that the proposal was made in 1951.

Mr. Parke: I beg your pardon, in 1961. All that my friend said is perfectly correct. I appeared at the first hearing and presented the case for the Trustees and Mr. Justice Kenny said that he had required advertisements to be inserted to discover whether persons supported or opposed it. When the matter came on on the second occasion I think it is correct to say that I was not called upon to say anything. I made my case but I do not remember my friend protesting against this at the time, but it is certainly true that that is what happened. In addition to my friend’s client who actually appeared, a number of letters were received from various other persons who were interested. I do not know whether it would be the wish of the Committee that I should open this correspondence in full. I do not know whether my friend wishes to have all these letters read.

Mr. McWilliam: No, if you could just state the effect for and against.

Mr. Parke: A letter was received from Mr. G. L. V. Cooke—

Mr. McWilliam: Just give the numbers.

Chairman: Have you got a summary, Mr. Parke, saying “X for and Y against?”

Mr. Parke: I am afraid I have not but I can tell you that Mr. Cooke was in favour, subject to certain conditions. That is one in favour and five were against but it is only right to say that those letters included a joint letter on behalf of the persons mentioned in the petition, other than Mr. Walsh and in paragraph 5 of the Bill nine people are mentioned and when I say one letter, it covers eight of those people. That is people other than Mr. Walsh. Mr. McCracken reminds me that two letters covered those eight people. In addition, letters were received from the solicitors for the Attorney General and one from the Mercier family, Mrs Winifred Mercier, one against the proposals from a Mr. Wisdom and a letter signed by seven members of the Le Clerc family opposing.

Mr. McWilliam: Some of these were written both to the Attorney General and to the solicitors.

Mr. Parke: Yes. Of the persons who did not write to the solicitors, we have Mr. Wisdom who is opposed to it, a Mr. O’Connor who is also opposed and a Mr. Doyle, but the only people opposing who are in any way connected with the cemetery or of Huguenot descent are the Le Clercs and the Mercier family.

Mr. McWilliam: And Mr. Walsh.

Mr. Parke: I do not know anything about his objections. I never saw any letters from Mr. Walsh.

During the period when the attempts were being made by Messrs Jacob to purchase the cemetery, the Trustees were resisting. They went so far that when they found that the wall bounding the cemetery was in a dangerous condition, dangerous building notices being served in respect of it, they realised that they would like to be relieved of the necessity for maintaining it. At the same time, they did not feel justified in recommending a sale to Messrs Jacob and they actually wrote to the Corporation of Dublin on the 22nd July, 1963, offering the site to the Corporation as a public open space under the Open Spaces Act, 1906. That offer was rejected by the Corporation on the 1st November, 1963. It would not be correct to say the Trustees have always been trying to exploit this. They did feel they should explore all possibilities before recommending any purchase by Messrs Jacob.

Their position as regards funds and needs is that their total funds which are set out in paragraph 12 of the affidavit represent only £100 Bank of Ireland stock and £1,544 16s. 4d. 5 per cent Exchequer Bonds. They are also entitled to an annuity of £20 which was one of the funds vested in them by the Order of 1917—a perpetual annuity resulting from a charitable devise in their favour.

Mr. McWilliam: From 1902?

Mr. Parke: Yes, 1902; I beg your pardon. The total income of the fund is £130 14s. 0d. per annum, as appears in paragraph 12. I shall hand in for the Committee the last account of the Trustees and also a breakdown of the accounts, the income and expenditure for the last ten years, that is, from 1954 to 1964.

Gentlemen, I do not have to emphasise for you how little by way of charitable relief can be afforded by an annuity of £130 in the year 1965. They are further limited by the fact that under the Order they are not entitled to grant an annuity of more than 7/- a week. Gentlemen, who wants 7/- a week now? What useful purpose, what relief of distress, can be achieved nowadays by 7/- a week? You will have evidence, Sir, that they have numerous claims, applications which they are wholly unable to satisfy. They have also many applicants, individuals, and clergymen applying on behalf of parishioners, who when they are informed that the most they could get would be 7/- a week by way of annuity, they say no purpose could be served by such a wretched stipend. Furthermore, one of the purposes of the scheme which they would like to implement is the giving of grants to enable persons to be advanced in life. Of course, they are totally unable to give any kind of useful grant for that purpose. In recent years they were only able to give one and during the last 20 years they managed to give a grant to one young man in order to start him off— I hope successfully—as a solicitor. They would like to do that again— not for the purpose of making people solicitors but for all purposes. They would like to feel they could help poor people, of which there are many.

I do not want it to be thought this is a dying charity. The Huguenots were a large community in Ireland at one time and they have very many descendants now living in Ireland and very many of those are in poor circumstances. Of course if this Bill were promoted successfully and were enacted, the Trustees would ask the Courts to have the scheme amended, to deal with funds which would now be substantial. They would have £20,000 more. The charitable funds would not have to bear any of the costs of the promotion of the Bill. They would all be borne by Messrs Jacob and they would provide the purchase cost and carry out all the necessary work without any charge to the Trustees.

It is in those circumstances that the promoters come before you, Sir, and members of the Committee, with this proposal. They did not do it on behalf of Messrs Jacob and they are not concerned whether it will be useful to Messrs Jacob or not. They are not concerned to see whether or not Messrs Jacob can benefit by this. They assume that Messrs Jacob would not pay something more than five or ten times the market value of this unless they thought it would be useful. But I do not present this Bill on the basis of assisting Messrs Jacob. The Trustees seriously and after much heart-searching in the interests of the charity which they are administering feel that they would be failing in their duty if they did not take every step possible to enable them to give relief to the objects of their benefactions.

That will conclude my first observations on paragraph 5 of the Preamble. My arguments will be submitted later but, as far as evidence is concerned, this is the evidence I shall be presenting.

Chairman: Before you go on to the final paragraph, there are three things which struck me as you went through. I should like to hear more about why the Trustees sought the order against the ESB. Secondly, can we have the reason why the Dublin Corporation refused? You said they refused; have you any evidence as to why?

Mr. Parke: I have only their letter.

Chairman: That did not state the reason?

Mr. Parke: I shall verify that. Their reply says:

Dear Sirs, I refer to your inquiry addressed to the City Manager regarding the above and wish to say the matter has now been examined by the Corporation. The site is not suitable for a public open space and consequently the Corporation is not interested in acquiring the cemetery.

On the matter of the ESB, I might say briefly the reason it was so vigorously contested by the Trustees is that it was a wholly improper purpose for which the property should be acquired. What the ESB proposed to do was to acquire only so much of the graveyard as would be necessary to site their transformer station and to site it there in the middle of the then existing graveyard, presumably removing any human remains which they might find in the course of their excavation. Something like that was, in fact, done, I think, in the old Saint Kevin’s Graveyard, where a transformer station was placed in a portion of the graveyard and any human remains found were re-interred in another portion of it. That was a wholly different proposition from that which is now before you. Their objection was—they strongly objected to the graveyard, which would then be continuing as an existing consecrated— if it was ever consecrated—graveyard being partially used for commercial purposes and otherwise leaving the necessary graves disturbed and the site disfigured, if I may say so. Furthermore —if I may hand in a copy of the ESB’s map—it would have the effect of entirely cutting off all means of access to this graveyard. It would have completely occupied the entire frontage of Peter Street. That, I submit, was an intolerable suggestion and I do not think any trustees could properly have done anything but resist. What is now proposed is a very different thing indeed. If it is carried into effect, this will cease to be a place where human remains were interred. These human remains will be re-interred in a consecrated plot and that plot will be maintained and the tombstones will be there and there will continue to be a lasting memorial and a permanent resting place for those persons there interred without a transformer station in the middle of it or at least blocking it, completely preventing any access. The Trustees who will be called will deal with this in evidence but I would submit that that fully justifies the attitude of the Trustees at the time of the ESB application. They draw a very clear and distinct contrast between what the ESB proposed and what is now contemplated. It would, of course, have added no benefit to their charity even if they had acceded to it but I submit they were correct in resisting it. It was a bad proposition from the point of view of the Trustees and one they were justified in resisting. My friend may say that the only difference is that we are getting more money now than then. I do not think that would be fair comment on the attitude of the Trustees, having regard to the great distinction between the proposals of the ESB and the proposals of Messrs Jacob.

Senator Nash: Are there any outgoings by way of rates on this graveyard?

Mr. Parke: They do not pay any rent. They have it clear of rent and apparently pay no rates.

Senator Nash: Is the wall yet repaired?

Mr. Parke: Jacobs undertook to do that and have done so.

Senator Nash: By virtue of their caretakers’ agreement?

Mr. Parke: I do not know whether they were under any obligation to do it. I do not think they were, but, as a matter of fact, they did it.

Senator Nash: May I assume that Jacobs could at any time surrender their benefits or rights under the caretakers’ agreement?

Mr. Parke: Oh, yes, Sir, they could, just as the Trustees would be entitled to withdraw their—

Senator O’Quigley: Can you give us any information, Mr Parke, as to how this was so vitally necessary as it appears to be to Messrs Jacob?

Mr. Parke: I, of course, have no direct instructions but a director of Messrs Jacob is here who, if he may be considered of assistance to the Committee, will give evidence and will show, I think, to your satisfaction the answer to your question.

Senator O’Quigley: The other point is —in virtue of what right did Jacobs come to erect this restroom?

Mr. Parke: They did not, in fact, erect anything. The building was there. It was the old mortuary chapel, I think, which they reconditioned.

Chairman: Is it not your case that they restored the building that was there and merely changed the user of it?

Mr. Parke: I would prefer Mr. Jenkins to answer that. He will be giving evidence. I would not like to speak beyond my instructions on that point. He will be giving evidence and will deal with the points raised by Senator O’Quigley and by yourself also but I do want to emphasise that it is no part of my case that Messrs Jacob’s necessities should influence the Trustees in their decision. Their decision is taken on the basis of their duty to their trust and not for the purpose of assisting Messrs Jacob. If it assists Jacobs and thereby assists the economy as a whole, so much the better, but I do not put this Bill forward as a means of assisting Messrs Jacob to make more biscuits or to make them cheaper. I put it forward as a benefit to the Trust Fund. If it has another incidental benefit, I am glad of that, but it is not my case that we are selling out to big business, as I think has been said in several of the letters written in opposition to the Bill. We are endeavouring to augment our Trust Fund in a manner which we think consistent with our duty.

Senator O’Quigley: A further point on the restroom or mortuary—is the use of that as a restroom in conformity with whatever regulations govern the user of disused graveyards?

Mr. Parke: That is a matter on which I have some doubt. I have some doubt indeed. I was intending very briefly to mention the statutory requirements in respect of graveyards and I confess I have doubt as to whether it would or not. It would certainly have been unlawful to have erected a building for that purpose when none existed. If they built something right from the ground, I think that would have been doubtful, more than a little doubtful. I think the matter could be queried in the Courts as to whether or not the use to which the building is now put is in conformity with the provision of the Disused Burial Grounds Act.

Senator O’Quigley: What Act is that?

Mr. Parke: The Act is the Disused Burial Grounds Act of 1884. If it would be in any way helpful to the Committee, I will open briefly the legal position or would you hear the evidence first, or what course would the Committee like to adopt? I am entirely in your hands.

Chairman: Better get the evidence first.

Mr. Parke: Yes.

Chairman: One other thing—are there any statutory conditions as to disinterring and reinterring?

Mr. Parke: None which would apply in this case. The statute would make its own conditions. If I may anticipate— the Department of Local Government have suggested certain amendments to the Bill and I think they were advised that their requirements should be inserted in the Bill itself because they agreed that an order consenting was not required if it was done by statute but they then considered that it was desirable that the same stipulations as they would have attached to a consent, had they been asked to give it and decided to give it, should be incorporated in the terms of the Bill, and, of course, that suggestion is wholly acceptable to the promoters but the statute would itself then make its own regulations.

If I might digress for a moment, this sort of thing has happened in Dublin before, though not in quite the same circumstances. The most illuminating example was the destruction of the old Saint Bride’s church and churchyard in 1899 when the Dublin Improvement Bull Alley Area Act of 1899 was passed. That arose out of a generous provision made by the then Lord Iveagh towards the development of that part of Dublin and in order that this charitable intention should be given effect a private Bill, which is 62 Vict. Cap XI, was passed on the 6th June, 1899. Included in the area which was to be affected by this Bill was the old Saint Bride’s parish church, one of the oldest parish churches in Dublin and its graveyard. That was dealt with quite shortly in nothing like the detail which the promoters wish to include in this Bill. The whole thing was dealt with in one section under which it was provided that the Representative Body of the Church of Ireland should sell to the undertaker, Lord Iveagh, free from all ecclesiastical trusts the church and churchyard and that the purchase money should be applied in a particular way. Under subsection (c) there was a provision that the undertaker should cause the remains of any person interred or deposited in the vaults in or around the said church to be removed under the superintendence of the medical officer of health for the time being of the city of Dublin and reinterred in any consecrated burial ground. If I may say so it was dealt with in a much less comprehensive manner than we now propose to deal with it in our Bill. The only statutory limitation there was that it should be under the superintendence of the medical officer of health which, of course, is dealt with now in the amendment, and that burial should take place anywhere where such burials could lawfully take place.

Much more recently Saint Thomas’s church and graveyard were removed in the course of the reconstruction of O’Connell Street and that was done without any private Act of Parliament. It was done for road widening and not for commercial purposes and I understand that—it was a Church of Ireland church—the faculty for disinterment of remains was obtained from the Archbishop and, of course, the Department gave consent and the remains were simply reinterred in Mount Jerome. It so happens that the plots in to which the remains from those two graveyards are now removed, Saint Bride’s and Saint Thomas’s, are quite close to one another and a plot nearby of a similar type and nature will be available for the reinterment of the remains in Peter Street should the Bill ever become an Act. Mr. Godfrey, who is chairman of the Trustees and who will be giving evidence, will say that he had inspected these plots recently.

Senator Nash: One further matter— if this Bill became law and these remains were removed to Mount Jerome or some other cemetery what provision would there be for maintaining in good order the plot in which they would be reinterred?

Mr. Parke: Originally the Trustees were obliged to maintain out of income. What would happen now is that the Trustees, having got this relatively immense sum of money, would go back to the court and I apprehend that it would be made part of the scheme that the same provision would apply in respect of the new plot as previously applied in respect of the old plot and that it would be a burden on the funds. The court would direct that the plot be maintained in the same way as the trustees did and still are maintaining the Merrion Row graveyard. They have been relieved of maintenance of Peter Street by Jacobs but they still maintain Merrion Row and there would be a like obligation to maintain the new plot.

Senator Sheldon: Are you taking that interpretation of the scheme which deals with the maintenance of burial grounds? It says the trustees may … Are you now agreeing that the word “may” means “shall”?

Mr. Parke: I think the situation is that it is left to the discretion of the Trustees. If they have money available it would appear to be one of the proper objects of their expenditure and they should do it but in the case of Peter Street when Messrs Jacob undertook it they then became relieved of it and did not have to dispose of any portion of their capital. I think it is merely a matter of discretion. I should imagine that if a new plot is created and the scheme amended there might be some suggestion that the wording be altered to give a clear expression that it was obligatory on the Trustees, who felt themselves bound to maintain Merrion Row. The maintenance, of course, is quite small and each year a small sum is expended on it. If Peter Street had not been in the condition in which it was when they found it their attitude might have been different. It was in such a lamentable plight—I have some photographs which if my friend does not object will show the condition of the Peter Street graveyard when the unfortunate Trustees became possessed of it.

Senator O’Quigley: Is there not a provision in the Article of the Constitution dealing with religion that the land of any religious body cannot be appropriated or expropriated except for public utility purposes?

Mr. Parke: That is so.

Senator O’Quigley: Apart from that it only occurs to me now that such land belonging to a religious organisation may not be tampered with even with the consent of the Oireachtas?

Mr. Parke: No, I would not agree. The actual provision is subparagraph 6 of Clause 2, Article 44 which says the property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation. Leaving out the possible legal interpretation of the somewhat ambiguous word “diverted” I would submit that has no relevance to these proceedings as this is not the property of a religious organisation. It is privately owned. At one time it may have been relevant when there was a religious denomination—using the wording of the Constitution—but certainly since 1817 it is not. It is privately owned; there is no religious denomination corresponding to the French Reformed Church in Ireland now or corresponding to the non-conforming or even the conforming Huguenots now; whatever the position might have been in 1817 or a bit later, it was about 1840 that the church was removed and presumably it came under the law then. All that remained after that were the vestries which administered charitable funds but did not own the property. It is now a privately owned piece of ground vested in the Trustees by order of the court and administered by them under an order of the court. It is not the property of any religious denomination. In fact the persons now owning it do not belong and have not ever belonged, possibly, to the religious denomination which once owned the church. It is owned by private persons who are trustees and I submit that the Article in the Constitution, apart from the ambiguous use of the word “diverted”—

Senator O’Quigley: What does the Irish version give you?

Mr. Parke: I am of such a vintage that I was able to qualify as a barrister without the knowledge of Irish and therefore I am not bound to know the Irish version. I feel sure my junior can deal with it. At any rate, I do not wish to go into that because I submit that basically the Article does not apply at all.

Chairman: We are bound by the order of Mr. Justice Kenny which gave liberty to promote a Private Bill for this purpose and in those circumstances I do not think the Committee are bothered about whether it is constitutional or not. In any case, that is a matter for private deliberation by the Committee later on.

Mr. Parke: I submit the answer I have given is the complete answer— that it is not the property of any religious denomination. It seems to me that while no religious organization could be compelled by law to surrender its property, otherwise than for works of public importance and on payment of compensation, I see no reason why a religious community should not surrender their rights if they so wished. This does happen from time to time. It happened under the Public Open Spaces Act which nobody has ever suggested was unconstitutional. Under it, a religious community may surrender their rights. Otherwise, it would mean that a large number of transactions could not take place. I shall give an instance which occurred only recently. The Church of Ireland had a church in Blackrock which had been closed and that church was sold by the Representative Church Body to the Dublin Corporation for the purpose of road widening. The Representative Church Body surrendered their rights and nobody would suggest that they were prevented from disposing of their property. Neither could they be prevented from protecting their property. A matter to which I should like to bring the Committee’s attention is that when giving judgment on the summons, Mr. Justice Kenny dealt with a number of these points. The official copy of the judgment has been bespoken and is not available. I have newspaper reports of the judgment which as counsel I am prepared to say are correct but if the Committee are anxious to get on with the evidence, this matter can be dealt with as part of the argument later.

Chairman: It would be better to get the evidence now.

Mr. Francis La Touche Godfrey sworn and examined.

Mr. Parke: You are a senior fellow of Trinity and the present Chairman of the Huguenot Trustee Fund?—Yes.

For how long have you been Chairman?—I find it hard to say. I think since the early thirties. Perhaps you have the dates there.

Would I be correct in saying you were appointed a Trustee in May, 1921? —I think that is correct.

And you have been Chairman for a considerable number of years?—Yes.

When the application was made to the Court last year, you, in company with the other trustees, swore an affidavit which contains a considerable amount of historical matter concerning the Huguenot community and that matter was derived from certain sources which you mention in the affidavit?—That is so.

Is all that information correct to the best of your knowledge and belief?—It is.

You have been a Trustee since 1921 so you can say in what condition the cemetery was kept before the agreement with Jacobs?—It was deplorable.

In what way was it deplorable?—I always thought it was in a terrible state.

How much money would it have taken the Trustees to have it restored to a proper condition?—I do not remember having discussed that matter.

In 1924 was there an agreement made with Jacobs?—A caretaker scheme.

What was the object of that agreement?—To get the cemetery into good order, not at our expense. We really could not have tackled it. We did not have the funds necessary.

If you had devoted your funds to this purpose, would you have had money left?—About half of it.

You entered into this agreement with Jacobs and they have made a very good job?—Yes. We were very satisfied with what they did.

Have they continued to maintain it to the present day?—I have inspected it many times and have always found it to be in perfect condition.

What happened to the tombstones?—They were piled up by the walls.

Can the inscriptions, if at all legible, be read?—Yes.

During the period in which you have been a Trustee, did Jacobs make several efforts to purchase the cemetery?—Yes.

What was the attitude of the Trustees during the years to these proposals?—We felt we had no power to sell. We felt the procedure would almost be impracticable—that it would be difficult to get an order of the Court or to have a Bill passed. We knew there would be certain objectors.

Did you consider in those days that the resulting advantage to your charity would justify your application?—We really did not think of this until the offer in 1963 when the amount was £20,000 The previous offer amounted to only £5,000 and we felt that was not really good enough.

When you found that you would possibly have at your disposal a sum of £20,000 for the purposes of your charity, what was your attitude then?—We thought it over very carefully. We had two special meetings in the summer of 1964. After that, we did not vote formally but we wrote to each member separately and each member separately, after discussion, gave his accord in writing and agreed to the proposal.

Chairman: Do you mean each Trustee?—Yes.

Mr. Parke: You can only speak for yourself as to the reasons which impelled you to accept and to recommend acceptance of this proposal. Would you tell the Committee why you thought this should be done?—Funds were really insufficient. We had to dole out annuities which amounted to £80 a year and which were very little with regard to the present value of money. An amount of 4/6d. a week was very good 40 to 50 years ago but now is very little. The £80 leaves a very little margin for special grants for education or business which we were supposed to deal with according to the 1917 scheme. We must remember we had to keep up Merrion Row cemetery. We had to have a gardener to tidy it up every month or so during summer. We had to attend to the gate after we were warned about it. We had it repaired and painted. The railings will need painting before long and I would not be surprised if the gate will need renewing before long as well. In addition to that, we were told in 1963 that the wall of the cemetery facing Peter Street was in bad condition and we would be liable for that and that it would cost several hundred pounds probably. We really had to be rather careful. Lately we have had very little money to give grants for education and promotion in business.

Is that part of your administration which you would like to be able to continue?—Certainly.

Do you believe, if you had funds at your disposal for that purpose, there would be claimants for the money and you would have no difficulty in disposing of it?—We would have no difficulty whatever. We never had difficulty in getting applicants for the annuity of 7/- a week. At the moment we know of four families with children who would be very glad of help for education and promotion of business. We know three further possible applicants for annuities.

I think, at the present moment, you have five annuities?—Three get 7/- and two get 5/-. We usually promote the 5/- as soon as possible to the 7/-.

In your own experience and from the transactions of the Trustees are you aware of the fact that there are many more claims on your bounty than you are able to satisfy?—Once we advertise we get plenty of applicants. There is no use in advertising when we have no money.

Do you advertise?—Yes.

The object of the Trustees is to help Protestants who show they have Huguenot descent?—Yes.

Are there many of them who would be in need of assistance?—Yes, indeed.

I have no doubt you will be questioned by my friend, and I am sure possibly by the Committee, as to the situation which arose in 1948 when the ESB sought to acquire premises. At that time the Trustees vigorously opposed acquisition. Perhaps you would tell the Committee, firstly, why you objected then and whether you consider that has any bearing on the present application?—It is quite different from the present application. They proposed to desecrate the grounds and erect a transformer and other things like that over the graves and on part of the ground without removing any remains. Secondly, I believe they proposed to abolish the Peter Street gate so the only way into the cemetery would be through Jacob’s factory.

The present proposal is to disinter the Huguenot remains and reinter them in a decent manner in a plot to be acquired in a Dublin cemetery?—Yes.

Do you feel that is a suitable thing to do having regard to all the circumstances?—Yes. This was pointed out quite clearly to me recently where remains from a private cemetery were reinterred in a Dublin cemetery. I refer to Saint Thomas’s and Saint Bride’s which have two adjacent plots. They are both quite well kept. They have stone surrounds. I was told Saint Thomas’s remains, 422 of them, were removed in 1925 and 1926 and Saint Bride’s were removed in 1898. Each of the two plots are 54 feet by 22 ft. There is quite a big space next to one of them and if this Bill goes through I hope we will be able to use it. I think with the Trustees approval, it will be quite suitable.

Would it be adjoining the other two? —It would.

I will just formally hand to you an abstract of the income and expenditure from 1954 to 1964 and I should like to know if it is correct?—It is, as far as I know.

These are the audited accounts for last year?—I am sure that is quite right.

Mr. Parke: My friend says that if the Committee are agreeable, we shall dispense with my putting formally all the documents which are exhibited in the affidavit—that they may be accepted as being handed in.

Chairman: Copies of them all will be handed in?

Mr. Parke: Yes. Those accounts and the abstract show the way in which the funds have been disposed of during those ten years?—I think we were down almost to £6 and then we decided we really had to be careful.

You were down to £6 one year?—

Yes—then we really got the wind up.

Yes, that was in the year 1962 which shows only a balance of £6 carried forward. I notice that, while in most years the income is £135 or £136, in 1961 it went down to £99 but in 1962 it went up to £168. Can you deal with that, Sir?—I think it is a question of income tax being refunded.

You do not get any other income from any other source than the funds standing to your credit and the annuity? —No. We did get a subscription of £5 from an American visitor some years ago.

So that if any person were anxious to subscribe to the fund, he could do so?—If anybody here—we would be delighted.

There is no reason why anybody having the interest of this fund at heart should not, during the many years back, have helped you by voluntary subscription?—Certainly; we would be delighted.

As far as you are concerned then, am I correct in saying that, having given this proposition the greatest consideration, you recommend its acceptance?—I do.

You consider it consistent and part of your duty as one of the trustees to do so?—Yes.

The witness was cross-examined as follows by Mr. McWilliam.

Mr. McWilliam: Mr. Godfrey, you appreciate that you are a trustee of this fund—a trustee of these graveyards? —Yes.

For whom do you think you are a trustee of the graveyards, if not for the representatives of the people who are buried in them?—That is a very difficult question.

Has it never occurred to you to think about that question?—We succeeded the previous trustees who go back to the 18th century.

Who do you think you are trustees for, Mr. Godfrey?—We are trustees on behalf of the court for certain funds and the cemeteries were given into our hands; they were vested in us.

In your position as chairman of the trustees, have you had occasion to go through the documents relating to these trustees?—Yes, I have been through practically all these documents.

And you have read the scheme?—Yes.

Am I right in saying that the scheme prepared in 1902 was a scheme purely for the conforming church which had formerly been known as Saint Patrick’s? —I was never much concerned with the 1902 scheme; we were really only concerned with the 1917 scheme.

The 1902 scheme is the basis of the 1917 scheme?—We were really concerned with the 1917 scheme.

Did you ever hear that the Huguenot communities in Dublin had a school in Myler’s Court which I understand is somewhere in the vicinity of the park now at Saint Patrick’s Cathedral?—I know that the Huguenot conforming community had a school for girls.

In a place called Myler’s Court? Did you read any of the books on the subject?—I have read Dr. Knox’s book. I have read a certain amount; one has not time to read everything.

Do you agree that the Huguenots of Peter Street subscribed and bought this plot of ground and built a church on it with their non-conforming subscriptions?—I think it was bought by the Lucy Lane and Bride Street communities jointly in 1707. They joined together with the aid of public subscriptions, including subscriptions from Dublin Corporation and the Archbishop of Dublin.

Am I right in saying that Lucy Lane and Peter Street were both non-conforming churches—Saint Mary’s and Saint Patrick’s were the conforming churches and they had separate funds at that time?—Yes, but I think they all helped one another.

Are you aware that when the school was closed down, the funds which had been subscribed by both communities to the school were collected or controlled from then on by the conforming community of Saint Patrick’s?—I have not heard that.

That was in 1823 according to this book of Miss Lee’s which is entitled The Huguenot Settlements in Ireland, page 227. Have you considered that?— No, I have not read that passage, I must admit.

Was the 1902 scheme for the conforming church alone at that time?— Yes, that is so.

Is that not borne out because the people in that scheme had to be members of the Church of Ireland?—I dare say that is so.

When it came to 1917, the two graveyards in Merrion Row and Peter Street were vested in the Trustees and in addition, the Trustees got the funds which had belonged solely and simply to those two churches of Peter Street and Lucy Lane. Is that not right?— I think so.

Do you agree that at that time two separate churches were amalgamated?— It may be so.

Is there not a confusion of thought in saying that a trust for the upkeep of a graveyard can be applied for the purposes of educating children or sustaining elderly people. Do you think the trustees of a graveyard are not bound to apply it for the upkeep of the graveyard? —Surely all these trusts are charitable; they included providing for clergymen and also for educating children and so forth.

I think you will find that Miss Lee is correct in saying that the funds for the education of children was amalgamated with the funds of the conforming churches in 1823. That left the Fund for keeping up the church which belonged to the other community; you do not know anything about it?—I have not read this, I must admit.

If you were the trustees of a graveyard, Mr. Godfrey, solely and simply, would you feel entitled to sell that graveyard and apply the proceeds to look after the poor of the city of Dublin? Would you?— Not if I was simply and solely a trustee of the graveyard and if I was not at the same time and by the same Act trustee of other things as well to help the poor. All these things must go together, according to the 1917 Scheme by which we are bound.

Will you agree with me that the first time the trust for the upkeep of the graveyards was brought into the Scheme was when the new Fund was brought in, in 1917?—That may be so.

Do you appreciate that the trust was placed before the trust for maintaining the poor descendants of the Huguenots? —I do not understand what you are talking about now at all.

It goes before, in the Scheme at all events?—I see what you mean.

When you took over in 1921 or 1922, you were appointed a trustee?—

Chairman: I do not understand that question of yours, Mr. McWilliam. You said that in the Scheme the trust for the graveyard came before the trust for the poor.

Mr. McWilliam: Yes.

Chairman: The trust for the poor is No. 3 in my Scheme and the other one is 3a, subsequently, in my copy. Is my copy defective?

Mr. McWilliam: It does not follow in that way. Paragraph 3 says:

The nomination from time to time of poor persons who shall be as hereinafter provided the objects of the said Charity shall be vested in the said Trustees and shall be made at the meeting of the Trustees to be held at the times and in the manner hereinafter provided.

and then paragraph 3 (a) was put in:

The Trustees may out of the capital or Income of the Funds now or hereafter to be vested in the Trustees discharge all rent or arrears of rent now accrued or hereafter to accrue due in respect of any Burial Ground now or heretofore or to become vested in or held by the Trustees under this Scheme and also all such funds as may be necessary or desirable to put all such Burial Grounds and the graves and tomb-stones therein in good repair and condition and to so maintain them.

Then you come to a whole lot of other sections and then section 9.

Chairman: You are referring to section 9?

Mr. McWilliam: I am—Sections 9 and 10 (a).

Chairman: There is a big difference between 3 (a) and 9: One is “may” and the other is “shall.”

Senator Sheldon: The very fact that it is 3 (a) would appear to indicate that this is something added in order to give permission to the trustees to use the moneys other than for the provision of annuities to poor persons.

Mr. McWilliam: That is correct but it followed as a result of getting the new fund in 1917. It was in 1917 that that 3 (a) was added when they got the new fund.

Deputy Sheldon: The Scheme as proposed in 1917 actually in its original drafting included 3 (a)? It was not that 3 (a) was added during a discussion of the Scheme?

Mr. McWilliam: The Scheme as you read it now is that of 1902 as amended in 1917.

Chairman: 3 (a) is an amendment put in in 1917 and super-imposed on the 1902 Scheme?

Mr. McWilliam: Yes. That appears if you read a copy of the Order amending the Scheme dated 24th April, 1917. That appears in that year.

Chairman: We have not seen that. You will forgive me if I did not know it.

Mr. McWilliam: When you were appointed, Mr. Godfrey, in 1921, or thereabouts, would you say the graveyard was in bad order?—Yes.

Were you aware that there was a statutory duty on the owners of graveyards to keep them in order?—I think the trustees were aware of it but they had no money to do it with.

You cannot tell us when the matter was considered? Is there any minute dealing with the cost of refurbishing or tidying up this graveyard in 1903 or 1904?—It was in the agreement with Jacobs in 1924.

Had you considered the cost?—I am quite sure they had.

Is there a minute to that effect?— My memory does not go back to that.

Have you looked?

Mr. Parke: The minute book which is related to this period is in the archives of St. Patrick’s and cannot be got out. My agent made a perusal of it in order to find a reference to Messrs Jacob acquiring the property, when we received notice. He did so. The extract I have is confined to that. If the matter becomes important, my agent can go into St. Patrick’s again and seek any minute there may be but the minute book is not available and is deposited in the archives and cannot be got out.

Chairman: I understand from the word “notice” that notice was given?

Mr. Parke: We were asked to give particulars of all dealings with Messrs Jacobs concerning the graveyard for the previous 50 years. We did that.

Chairman: Do you mean a notice about High Court proceedings?

Mr. Parke: In this matter.

Chairman: It seems rather peculiar. We have not got one up here at all.

Mr. Parke: I cannot account for that.

Chairman: Could we have one now, please?

Mr. Parke: I can give you my copy. (Copy handed up.)

Senator Nash: Would Mr. McWilliam refer me to what statute imposes an obligation for the maintenance of the graveyards?

Mr. McWilliam: I have not the reference before me. It is the Burial Grounds Acts.

Mr. Parke: Is it the 1856 Act?

Mr. McWilliam: I think it is later. I shall deal with it later when I sit down.

Senator Nash: Thank you very much.

Mr. McWilliam: One of the reasons why I asked you about the cost is that you said—I take it, without having any keen appreciation of the amount—that it would cost half the funds. You have not any minute about that and you do not recollect whether or not it was ever discussed. Is that so?—I do not.

With regard to this business of disinterring bodies from graveyards, you have said in your Affidavit that you are a member of the Church of Ireland?—Yes.

Am I correct in saying that the teaching or the principles of the Church of Ireland are against disturbing graveyards?—I do not know what is meant by “disturbing.” I think we all recognise that there is no objection to removing remains from one place to another and the bodies of many saints and patriots and so on, have been disinterred and there is no objection to that at all from the Church of Ireland point of view either.

I shall now read Canon 41 of your Church: it is headed: “Of Consecrating Churches.” It reads:

As often as Churches are newly built, or re-built, or Church Yards are appointed for burial, they shall be dedicated and consecrated:

You have sworn in your affidavit that you believe this graveyard was consecrated. The Canon then continues:

provided that the ancient Churches and Church Yards shall not be put to any base or unworthy use.

Is that a statement of the Church of Ireland?

Mr. Parke: Before the witness answers this extremely difficult theological point, may I point out that my friend is quite unintentionally misleading the witness. That deals with consecration in accordance with the rites of the Church of Ireland and no such consecration could have taken place in this instance because it never belonged to the Church of Ireland. Whatever ceremony took place, it had nothing to do with the Canon my friend is reading.

Mr. Godfrey: The Archbishop did not come into this at all.

Mr. McWilliam: I am not interested in how the consecration is done. Will you agree with me that in this country it is the general view that graves and graveyards should not be disturbed, unless it is absolutely necessary?— With that qualification, that is right, but it is very often found to be necessary.

Is that the view of the people of Ireland contained in that paragraph of the Constitution referred to by other members of this Committee?—I do not know the paragraph.

It states: “The property of any religious denomination or any educational institution shall not be diverted save for necessary work of public utility and on payment of compensation”?—Except by the permission of the religious community or owners of the property concerned. Surely that is what it means?

That is quite correct. Am I not right in saying it is the general view of the ordinary man in this country that graves and graveyards should not be disturbed, unless it is absolutely necessary?— Unless absolutely necessary. I think everybody will agree with that.

With regard to this particular graveyard, you have stated in evidence that the difference between the ESB proposition and this proposition is that these bodies are to be properly transferred from this graveyard up into Mount Jerome?—That is true enough.

Do you feel perfectly happy, having got this proposal on your hands to keep up this graveyard? If you had merely been allowed to have the bodies transferred to Mount Jerome and you were relieved of the responsibility of keeping up this graveyard, would you have been happy if it had been done with due form and with the proper ceremonies?— There is no point in that being done, unless there was some inducement to do it, unless it was necessary in some way. The only necessity in this case is that we should carry on the fund by means of getting a larger income.

It would save you the necessity of keeping up the graveyard, that is, if Jacobs had not undertaken the duty?— We were not keeping up the graveyard. Jacobs were keeping it up.

Would it be sufficient inducement to you to agree to the bodies being transferred reverently to Mount Jerome that you had been relieved of the dnty of keeping up the graveyard?—No, that is nonsense.

Is it a question purely of amount as to whether you agree it is to be done or not to be done?—It is a question of our getting sufficient funds in order to carry on our trust satisfactorily.

A trust different from the trust of keeping up the graveyard?—A whole trust, which includes graveyards and also paying money to poor Protestants of Huguenot descent.

In the application that the ESB proposed acquisition be refused, I understand you swore an affidavit in that matter?—Yes, I believe we did.

Did you swear in paragraph 9 of that affidavit: “Each of the said Trustees is a member of the Church of Ireland and a person of Huguenot descent, and as such, is in his or her personal capacity, strongly opposed to the proposed acquisition of land by the Board as constituting a desecration of a Christian burial ground and an improper and unjustifiable appropriation of the property of the charity”? Did you consider that that was a desecration of a Christian burial ground?—I have already explained why.

Did you feel strongly about it?— I suppose I did, yes.

Again, I must put it to you that the strength of your feelings is in some way related to the value of the return to the Trustees, for admittedly charitable purposes, you get? Is that so?—It is in relation to our ability to carry out the trust. I cannot really put that in terms of money because money is always varying so much.

I asked you at the beginning for whom you thought you were a trustee. You told me you were not as you thought a trustee for the representatives of the people buried there but in some way a trustee of the courts. Did it occur to you that there might be people interested in the burials that had taken place in this graveyard, descendants of theirs?—Yes.

Did you say in answer to Mr. Parke that one of the reasons you did not go ahead on an earlier application by Jacobs was the difficulties which had been encountered and you thought there might be opposition from certain quarters? Is that not what you said?— We thought there might be opposition from certain quarters.

Did you think those certain quarters were descendants of the people buried in the graveyard?—There are all sorts of people always opposed to everything. They might include those.

Did you think some of the descendants might have legitimate grounds for opposition?—No, I did not think it would be legitimate, but I thought they might object.

Mr. McWilliam: Are you aware that the summons you brought was not served on any of the representatives of the descendants?

Chairman: Surely that is a matter for the courts and not a matter for this Committee.

Mr. McWilliam: Another point arises. Did you or your co-trustees make any effort to ascertain the views of the representatives of the people buried there before you brought this application? —I think that would be almost impossible because we have not got a list of addresses and telephone numbers.

Did you make any attempt, either in committee or otherwise, to consider whether you could find any of them?— We advertised, certainly. That is about all we could do.

Subsequent to the Court application? —We were quite prepared to do so at any time.

Mr. McWilliam: You made no attempt to find any of them before you made application to the Courts?

Chairman: Surely the Court decided that the advertisements were adequate. If the Court thought the advertisements were not adequate, they would have directed other advertisements. You are trying to put us, by these questions, in the position of criticising or overriding the judgment of the Court. On that basis I do not think this Committee can consider that aspect.

Mr. McWilliam: I am not, Mr. Chairman, really trying to override the judgment of the Court. The Committee, as I understand it, has to consider the proposition of whether it is expedient to pass this Bill and whether a Court would approve it or not. I am suggesting all these things are relevant for the Committee to consider, whether the Court says or has said it is legal to do what is done or not. That is all I wish to say at this stage.

Now, with regard to the objects of the charity, am I not right in saying that almost any charity in Dublin could help a number of the people you would be helping by your charity, although they might not have the funds? Is that not right that—

Mr. Godfrey: Almost any charity?

Mr. McWilliam:—could help a number of the people that you would be helping?—I do not know. These are Huguenots and persons of Huguenot descent who are Protestants and are rather rare and people do not go out of their way to help them.

Do you not think that there are a number of charities within whose ambit they might come?—I do not think there are so many.

When you were talking about the exhumations and removal of bodies, you said that in Saint Thomas’s and Saint Bride’s a somewhat similar procedure was adopted. By whom were you told this?—I went to the office at Mount Jerome and I asked them about this and they turned up their books and they found a record of 422 bodies in Saint Thomas’s and they found a record that the plots were 54 feet by 22½ feet. That is the sort of thing I found.

Am I not right in saying that Saint Thomas’s was knocked down in the shelling in 1916 and obliterated? Is that not right?—I thought it was in 1922 but I may be wrong.

I am instructed that it was 1916?— I understand that it was 1922 but I may be wrong.

Whichever it was, do you agree that it was knocked down by gunfire or bombs or something?—Or something.

Is that not right?—Or something. I am not sure what it was; I was not there at the time.

Chairman: It was during the Civil War.

Mr. McWilliam: It was situated in O’Connell Street?—In Marlborough St.

Am I right in saying that the church was rebuilt?—Not in the same place as before.

Do you see any distinction between removing bodies from a church or graveyard which has been destroyed in wartime and taking up the bodies in a graveyard such as this?—I do not think the persons concerned would really mind, to tell you the truth, if the whole thing was done for a good purpose.

You mean the people buried there or their descendants?—If we could ask the people buried there, I think they would agree, if the object was a good one and if it was done with care and so on.

I must take you up on that. Is there not a general feeling in this country that a man is buried in the spot where he will remain until what he believes is the Day of Judgment? Is that not a common belief?—There are many common beliefs which are quite erroneous.

Well, it may be erroneous …?—I am not concerned with erroneous beliefs really.

I am only asking you about your knowledge of the population of Ireland? —I think it is quite wrong; I think the common belief is that remains may be removed at any time for a good purpose, in the case of saints and so on, or politicians or what-not. They can all be removed for a good purpose.

Any good purpose?—For a good purpose.

Do you suggest that this graveyard could be sold and the bodies exhumed and the money applied to any other charity?—No; I think we would be chiefly concerned with their descendants, the descendants of Huguenots.

Mr. Parke: You were questioned rather severely by my friend about the fact that you did not advertise before you brought the summons. Am I correct in saying that you were advised that you would have to bring the summons first and then go to the court and that the application on the 26th July was for that purpose?

Mr. McWilliam: I did not use the word “advertise”; I said “inquire.”

Mr. Godfrey: That was the only feasible way.

Senator Nash: A distinction is being drawn between the fund for the upkeep of the cemetery and funds to help the poor. Originally, was the money for the cemetery as such or is the fund for the poor really being applied for the upkeep of the cemetery?—It is very hard to answer a question like that.

Mr. Parke: I think it could be answered—perhaps Mr. Godfrey may not be in a position to do so—quite readily by looking up the records. I do not think Mr. Godfrey is in a position to answer it.

Chairman: Is it your view, Mr. Godfrey, that you are the trustees of a non-segregable trust and that you have to look at the whole of it and see how best it can be administered?—That is right. I am thinking of the trust as a whole.

Chairman: Thank you, Mr. Godfrey.

The witness withdrew.

Captain James Chaigneau Colvill sworn and examined.

Mr. McCracken: Captain Colvill, you are one of the Trustees of the Fund?—Yes.

When were you appointed?—In 1938 approximately.

I think it was in 1936. You have been a Trustee for a considerable length of time?—Yes, but I went on war service in May, 1939, and I did not return until the beginning of 1946. I remained a trustee but I had nothing to do with procedure during that time.

You are of Huguenot descent?—Partly.

Have you any ancestors who were members of the Peter Street congregation that you can trace?—Yes, I have.

Perhaps you could tell us the family names?—My Huguenot connection is through a family of French Huguenots named Chaigneau. There appear to be ten Chaigneaus buried in Peter Street. They are not direct ancestors of mine; they are collateral.

But they are blood relatives?—Yes, definitely.

Therefore, apart from anything else, you are giving evidence as a descendant of some persons buried in Peter Street?—Yes.

First of all, we had better go through the history of the Jacob proposals. What was your view on the earlier proposals?—There was a first proposal I remember about 1945. I had a letter in Italy about a proposition to sell to Jacobs.

At that time did you attend meetings, and so on?—No.

Were you ever asked for your view?— I was. I knew little of the details of the thing except what was in this letter. My reply was that I was in favour because I thought it was better to sell and use the proceeds for the living rather than leave it there where it was no good to anybody.

Are these still your views?—Yes.

This is a different proposal—the nature of it and the size of the amount being offered?—I do not remember what the amount was in the first proposal.

You are one of the Trustees at the meeting. You are one of those who made the affidavit in connection with the ESB acquisition in 1948. In that affidavit you said you were opposed to the acquisition. Could you state briefly why you said you were opposed to that acquisition and now you are in favour of this sale?—Are you referring to the ESB?

Yes?—The two proposals are so totally different that it is difficult to compare them. The first proposal we were to get nothing out of, as far as I can remember, except some trivial sum. The second proposal from Jacobs is giving a handsome sum. It is better to sell the place and use the proceeds for the benefit of the living.

Chairman: In the affidavit of the ESB for acquisition, the date given in paragraph 16 is 1941.

Mr. Parke: There is a misprint; 1948 is correct.

Chairman: Paragraph 16 is wrong?

Mr. Parke: It should be 1948.

Mr McCracken: You heard Mr. McWilliam, Captain Colvill, cross-examining the previous witness, Mr. Godfrey, concerning the nature of the Trust, whether it is a trust for a grave yard or a trust for the poor. What are your views on the nature of the French Huguenot Trust?—I think the objects are all equal, that is to say, the upkeep of the graveyard, helping the poor and promoting education of the needy. They are all equal in so far as the funds allow.

As a descendant of a person buried, apart from your position as Trustee, have you any abhorrence to the removal of the remains?—None at all.

Have you any objection to the proposal of Messrs Jacob to build on this ground?—No, once the bodies have been removed.

The witness was cross-examined as follows by Mr. McWilliam.

Mr. McWilliam: You are a soldier, Captain Colvill?—No, the Navy.

Would you agree there are a number of people who genuinely have an abhorrence at the removal of bodies from a graveyard?—That is quite so.

Would you say the ESB offered a trivial sum? I take it when you swore this affidavit complaining of the desecration of the Christian burial ground, that really was not one of the high things in your mind; you were thinking of the trivial sum?—My views were not expressed in connection with that but in connection with Jacob’s first offer.

The same views did not apply to the ESB, that it was a trivial offer? Did you not feel it was too small an offer? Is that not one of the reasons why you objected to that transaction?—In a way. It was not going to do us any good; it was going to destroy the graveyard.

Do you realise you are Trustee of several graveyards?—Two.

Have you ever read the scheme? You know you are a Trustee of the old Conformist Church?—Yes.

Have you ever seen it?—Many years ago.

Is it your view that the graveyard in Merrion Row should be sold if you could get a good enough price?—If we get our price from Jacobs, I see no reason why we should sell it.

Has it crossed your mind that you should sell Merrion Row?—Yes.

Did it not occur to you that you should sell both, if the opportunity arose?—No.

Did you consider selling the plot opposite the old Cathedral Lane?—No.

One final question. Do you feel that if you could help any charity, you would be entitled to sell this or any other graveyard to help that charity? If you were the Trustee of the graveyard?—Yes.

Senator O’Quigley: Might I ask a question? The scheme provides that the company would carefully search for and remove, with all due reverence, all human remains. Have the Trustees considered what standards will be applied in determining whether all the remains have been removed at a particular time?

Captain Colvill: Not so far as I know.

Chairman: I think I must rule that out of order. This is a matter for the Committee Stage on Section 3, not for the Preamble. Thank you, Captain Colvill.

Business suspended at 4.50 p.m. and resumed at 5 p.m.

Mr. Ashley Powell sworn and examined.

Mr. Parke: You are a Trustee of the fund and you were appointed, I think, in 1938?—About then, yes, if I remember.

And you have been an active Trustee since that time?—I have always attended meetings.

During that period of trusteeship, there were several approaches made by Messrs Jacob for the purpose of acquiring this graveyard?—Yes.

Can you tell the Committee what were your views on these several proposals as they came up?—We were advised in the beginning by Mr. Hungerford, who was a very well known Chancery lawyer, and we were warned that we should not interfere with the burial ground except under order of the court and that it would require an Act of Parliament, and he specially warned us that we might meet criticism and we always bore in mind that it was our duty to present any offer that might be made by Messrs Jacob in a neutral manner so that any objector could make his case. When it came before the Court, the judge did require the Trustees to express their individual opinions and we thought that as Trustees it would be an outrageous thing to refuse an offer so beneficial to the charity.

It was a matter which, I suppose, engaged the anxious attention of the Trust?—Indeed, it did. Judge Kenny gave us credit for that in his judgment.

I will be opening that judgment at a later stage. I take it each one of you individually, as far as you are concerned, considered it very carefully from the religious as well as every other point of view?—We did.

And it was considered by all the trustees, inluding yourself, that it should be accepted?—Yes, we were unanimous and I think we all held that you must have a sense of proportion—so vast an advantage to the poor Huguenots and the other people of Huguenot descent are very numerous.

Mr. Godfrey was questioned as to whether you gave any attention to the question for whom you held this graveyard on trust. Is that a matter which engaged your attention at all—what were the objects of the Trust in so far as the graveyard was concerned?— I cannot say I considered it in a very exact manner but I was aware of the scheme of 1917 and that seemed to me to lay down our duties.

Mr. Godfrey said he considered the Trust as a whole?—Certainly.

Bound to consider every aspect of it? —Certainly, for the benefit of the Huguenot public, you might say.

That one part of it concerned the graveyard; the other part of it concerned the benefits to the poor?—To the poor or to advancing any person in a trade or profession.

Is that portion of the scheme to which you would like to give more attention?— We would, indeed. We have been able to do it in only one instance but it was successfully done.

Do you think if you had more funds at your disposal, you might do it on other occasions?—We could do marvellous work if we get an income of £1,000 a year. We could give scholarships in schools and attempt to send young men who would not otherwise be able to afford it to universities, advance them in professions. We could do marvellous things.

Mr. Godfrey was questioned about the natural repugnance alleged to exist in this country concerning disturbing the dead and in particular there was quoted to him a canon, one of the canons of the Church of Ireland. You are a member of the Church of Ireland?— I am. I am a member of the Synod, too.

Have you on occasions in that capacity had to consider schemes for disinterment and reburial?—We certainly have. You have been given evidence as to Saint Thomas’s and Saint Bride’s. There are two more that my attention was drawn to. I went up to the Representative Church Body and I saw the papers which deal with these exhumations and reinterments and there were a couple there that were brought to my notice. One was Saint Kevin’s—old Saint Kevin’s. What was done in that case was the Electricity Supply Board applied to the Representative Church Body and the Representative Church Body could not keep it in order. The old graveyard was being used for hiding stolen property and it became a rubbish dump like what you have heard of Peter Street and they willingly surrendered to the Electricity Supply Board a portion of the graveyard. They exhumed the remains from that portion. The Electricity Supply Board paid £200 to the parochial funds and the remains were buried in another part of the graveyard. Now, there was another case I may draw your attention to, Saint Mary’s, Athlone. In the case of Saint Mary’s, Athlone, portion of the graveyard was required for road widening and the remains were removed together with the earth in which the remains were buried and they were buried in another Protestant graveyard. That was, I think, only about a year or two ago.

Do you find from your experience that great repugnance to disturbing remains which was suggested by Mr. McWilliam? —I do not think so. I think there would be a general feeling of regret that remains had to be exhumed but I do not think that you would for that reason refuse this sum that is offered us.

Did you know anything about this fact, that when the Poulaphouca scheme was put into operation a graveyard was abolished there?—There was, and also in the Lee electricity supply, there was a graveyard above Inniscarra—I have forgotten the name of the place— and I think the bodies were reinterred.

The ESB attempted to do very much the same to Peter Street as you described as having been done at Saint Kevin’s in 1948 and on that occasion the Trustees vigorously opposed it?—We did.

And you swore an affidavit a passage from which was quoted?—Yes. I know that. I said in that affidavit that the ESB indicated they wanted to acquire the frontage of the Huguenot burial ground in Peter Street to place a transformer on it. The Chairman and I interviewed the Head of the ESB, the late Dr. Browne, and we showed him a sketch plan which we had got from a Mr. Maconchey, our consultant engineer in which he indicated several places near the Peter Street cemetery which were not required for housing or road widening and which could be used for a transformer which they wished to place there. He was very sympathetic in his approach to us and we were extremely surprised and distressed when we found a Compulsory Order was made in respect of Peter Street.

Did the fact that the proposal of the ESB envisaged leaving the graveyard there …?—There was no provision in the compulsory Order for the removal of remains. It would have been placed on top of the graves.

Chairman: It is clear that the part that was the subject matter of the Compulsory Order did, in fact, also include graves?—That question was raised and in some affidavit put in by Messrs Jacob that was denied but I do not think that was so because it took in about half the plot and the burials that you see—you have it before you. It is a considerable portion. There had been several hundred burials and I do not think there was any evidence whatever that they were confined to any one portion of the burial ground. We applied by writ of certiorari to quash the order on numerous grounds and the ESB evidently thought we were right because they did not enter an appearance and the Order was made absolute.

Mr. Parke: Were you influenced in opposing it by the fact that there was no general scheme for exhumation and that what was going to happen was that it would still remain a graveyard with an ESB transformer in it?—That is quite correct and it was a burial ground in which burial rights still existed because the Huguenot burial grounds were excluded from the Public Health Act of 1878 which gave power to close burial grounds. This was never closed.

I shall deal with that at a later stage. You said in that affidavit that you regarded this proposal as desecration of the burial ground. Do you still think that?—I do.

How do you distinguish that from the proposition put forward by Jacobs?— First of all the remains are to be disinterred and reverently reinterred—

Chairman: This is on Section 3 not on the Preamble. The method or methods of disinterment is not for the Preamble.

Mr. Parke: I really wanted to get the witness’s view that it was the fact that there was no scheme at all for disinterring under the ESB plan that influenced them.

Chairman: So long as we do not get on to methods of interring it is all right.

Mr. Parke: I shall certainly keep off that. You have considered this matter conscientiously whether this proposition should be accepted?—Yes and it is in accordance with the rules of the Church of Ireland. I think those rules are relevant. There are three methods in which they deal with cemeteries: one is when a cemetery is made an open space under the 1906 Act. There is also the case where there is a compulsory purchase order and the case of consent. There is a further one where they hand over a burial ground to the health authority, the council or corporation, as was done with Saint Kevin’s.

If Mr. McWilliam wants to question you further about that, he may do so. On the use of the fund, you have no doubt it will be able to assist you greatly? —Yes, it will be marvellous.

There are many other factors which influenced you in coming to this decision?—I think a man who has a sense of proportion will think this wonderful sum of money stands on a different footing from the £200, mere chicken feed, offered by the ESB.

The witness was cross-examined as follows by Mr. McWilliam.

Did I hear you correctly as saying you thought there were 700 burials there?— No, several hundred, 200 or 300 I think. You have the burial register there.

I took you up wrongly then. I thought you said 700. Am I not right in saying that the Poulaphoucha and Lee schemes were for the benefit of the entire community of the country? Is that not right? These are fed into the general ESB grid?—Yes.

You agree they stand on quite a different footing from this graveyard?— No, I think Jacobs are making food and bread the staff of life and their commercial enterprise is not only very advantageous to the economy but it is necessary for the food of the people.

Are you suggesting there is no other method by which Jacobs could deal with this situation that confronts them? —I believe not. I believe Jacobs applied to the Corporation for a portion of Kevin Street and the Corporation refused. I am only saying this on hearsay.

I think we could leave that to Jacobs to give the facts. You think it is in exactly the same position as the Poulaphoucha and Lee schemes?—I do, yes.

I want to get this from you. Do you think the Merrion Row site ought to be sold if you could get £10,000 for it?— I would wait until that happened and make up my mind then.

I am asking you to make up your mind now?—No, I never answer a hypothetical question.

Could you use an extra £10,000 if you had it?—We could indeed. I am sure we could. We will get in applications when we are able to send boys to university or start them in business.

Having the views you do have that graveyards should be dug up and used for commercial purposes if you can get enough money should you not put a stipulation in this Bill about Merrion Row if you got a good offer?—I do not see what this has to do with it.

Chairman: I think, Mr. McWilliam, we are dealing with one graveyard here.

Mr. Ashley Powell: I should like if I am allowed to answer the question he is going to ask me because I have the answer.

Mr. McWilliam: There are at least eight graveyards in Dublin which are either not being used or are shortly to be closed. Do you think it ought to be the policy of the trustees of these cemeteries to sell them for commercial purposes?— That is their business. I should like to answer the question about the Cabbage Garden—you referred to the cemetery at Church Lane. It is known as the Cabbage Garden. It is down opposite Saint Patrick’s Cathedral. On the west side of the lane there is a Huguenot cemetery.

Chairman: No. 4 in the first part of the Schedule?—Yes. The corporation are to knock down a long row of houses. The name of the street is, I think, The Haymarket. They asked us if we would consent to the graveyard being included in the scheme. They sent us a map in which they showed our little graveyard as an open space. They did not then proceed with the scheme and they have now brought it up again, and we discussed it at our last meeting. They have returned to their proposal that our little graveyard should be made an open space. So, I believe, is the Cabbage Garden.

Chairman: I do not quite see that it is relevant?—Mr. McWilliam said something about Cathedral Lane.

Mr. McWilliam: You did not spot the question I meant to ask. You are generally interested in Irish families?—I am, my own at any rate.

Do you think there would have been any trouble in ascertaining the descendants of the people buried in Peter Street?—It is very difficult to find the addresses of people. Now, if I were a candidate for the Seanad as I once was—

Chairman: I think we shall leave the matter of election to either House of the Oireachtas.

Mr. McWilliam: Neither you nor any of your fellow trustees suggested that an inquiry should be made into the matter of descendants of families buried there? —I do not know how we could have set about it.

Could you find similar names knocking around Dublin?—A lot of them are in the female line. There would be the question of advertising. Under the order of the court beneficiaries are persons of Huguenot descent.

Do you not think that descendants of people buried in the cemetery—?— They are poor people requiring assistance.

Perhaps you heard me suggest how these two schemes came to be arranged. The first step was taken in 1902 in relation to the Conforming Church and then came the Non-conforming Church? —That was before my day.

Did you ever read the 1902 scheme?—I never did.

It is all one scheme now with little additions made in 1917. You did not take the trouble to read them?—No.

The witness withdrew.

Mrs. Mildred May Empey sworn and examined.

Mr. Mc Cracken: You are secretary to the Trustees?—That is correct.

For how long have you been secretary?—Since 1959.

As secretary, you are responsible for keeping the various records?—Yes.

Do you now produce the minute book? —Yes.

Do the Committee wish to see it now?

Chairman: If it is entered in evidence, we must have it for our private deliberations. You may keep it for the present and we can send for it as required.

Mr. Mc Cracken: What is the period of that minute book?—From 1929.

As secretary, can you say where is the previous minute book?—It is in Saint Patrick’s Cathedral.

Of course, you were not there then?— No. It was handed over in 1929.

Are these the accounts?—Yes, audited by Ormsby and Rhodes.

Your latest audited account is for 1964?—Yes. It contains all the details. You are now referring to the balance sheet?

As secretary, are you also responsible for paying the annuities?—Yes.

Have you got a list of the annuities?— Yes. I do not know whether the Committee have already been given a list.

Senator O’Quigley: We have it as one of the documents.

Chairman: It is with the accounts handed in.

Mr. McCracken: If somebody wishes to receive an annuity, how would he set about it?—He would write to me and I would send him an application form to complete. The one I am producing is an old printed form.

Perhaps if you tell us very briefly the facts the Trustees require it would be best?—They must be people of Huguenot descent and must be recommended by somebody.

How are you normally approached?— Generally verbally.

By the applicant themselves or by somebody else?—Generally by somebody else—by the rector of the parish in which they live.

Approximately, how often do you get inquiries as opposed to actual applications?—It is spasmodic. Sometimes they meet me in my office. Sometimes I have inquiries seeking election. Many people do not know about it. They have to wait.

Is this because you have not enough money to pay them?—Yes.

Are they actual inquiries or appplications?—Sometimes they inquire and I say there are no funds available. When there is a vacancy, I send an application form. Inquiries are generally followed by applications if they are very poor people. Sometimes people apply and when they discover the amount is only 5/- a week they disappear.

I do not think we should go into any names or anything but I should like you to give the Committee an idea of the type of people you get. Where do the applicants come from?—Do you mean inquiries or annuities.

I refer to inquiries?—I have several from Limerick, some from Ballinasloe, Portarlington and Dublin.

They come from throughout the country as well as from Dublin?—Yes.

You have been secretary for some years. In your opinion, would these applications be granted? In other words, are the people suitable?—Yes.

Is there any way in which the people get to know about this?—We do not encourage it because we have not the money. It is very small and there is always somebody waiting when a person dies or we get some money in. There is always someone waiting to be elected and we notify the person.

You never have to look for applicants? —No.

Would it be fair to say a great many people who would qualify know nothing about it? Are there many poor Protestants of Huguenot descent who would not know about this?—There were three recently and it was the previous secretary who told those people about it and asked them to apply to the Huguenot Fund.

How are the annuities actually paid? Do you send the money out?—Four people are paid by cheque every two months. That saves the price of cheques. The other person comes in every month and is paid by cash.

Since you took over as secretary in 1959, have you had any inquiries from other people about this cemetery?— No. It is generally the Merrion Row cemetery I get inquiries about. This cemetery seems to be more widely known than the Peter Street one.

Have you ever had somebody claiming to be a descendant of somebody buried in the Peter Street cemetery?—No.

I think you sent out a circular, if I might call it, to the Trustees asking them whether they recommended accepting this proposal in July, 1964?— That is correct.

Are these the replies you got back?—Yes.

Did every one of the Trustees recommend acceptance?—Yes.

Chairman: I was looking at your technical proofs in relation to the Preamble. Do I understand, in relation to paragraph I, that your proof is based on the acceptance by Mr. Godfrey, Mr. Powell and Mr. Colvill and that that proves those orders that are referred to in paragraph I of the Preamble?

Mr. Parke: I have produced the orders as well.

Chairman: I do not think so.

Mr. Parke: I am sorry; I thought they were in.

Chairman: So far as paragraph 3 is concerned, is it the secretary who is going to prove she has received the proposal?

Mr. Parke: Yes.

Chairman: Nobody has proved to us that Mr. Justice Kenny had made an order.

Mr. Parke: I thought the order had been handed in.

Chairman: We got copies for the benefit of the Committee but we did not receive the attested copy.

Mr. Parke: I am sorry; I thought you had received it.

Chairman: I wanted to get this clear before you are finished with the secretary. Have you advised the Secretary to the Committee that such is the case?

Mr. Parke: I have.

Chairman: The original order of Mr. Justice Kenny was handed in and given back. That is the reason we have not got it. What about paragraph 6?

Mr. Parke: That would be a matter of law, a matter on which I would have to address you. I cannot offer any facts in evidence.

The witness was cross-examined as follows by Mr. McWilliam.

Mr. McWilliam: You have produced Mrs. Empey, an order of 27th July, 1954, and an order of 5th October, 1964, by Mr. Justice Kenny?—Yes.

Have you been advised as a matter of law that this proposal cannot be completed without the authority of a private Act of Parliament?—Yes.

Chairman: You were so advised?—Yes.

Mr. McWilliam: Have you never looked for applicants?—No.

Would I be correct in saying you never looked for descendants of Huguenots for the Huguenot funds?—Yes.

Do you send out applications, appeals for donations?—That did not come within my duty.

It has never happened within your knowledge?—No.

You never heard of it being done?— No.

The witness withdrew.

Mr. Jeffery B. Jenkins sworn and examined.

Mr. Parke: Before I examine this witness, I would like to reiterate what I said at first that this is a matter of practice. My submissions are not based on the requirements of Messrs. Jacob but I tender it as evidence because of paragraph 9.

Mr. Jenkins, you are a director of Messrs. W. & R. Jacob & Co. Ltd?—I am.

How long have you been a director?—Since 1947.

Have you been connected with the firm prior to that?—I joined as an employee on the engineering staff in 1936.

Your particular qualification was on the engineering side?—No.

Briefly, this factory has grown up piecemeal over a great number of years?—Yes.

Do you produce now a plan showing the present Jacobs factory in its entirety?—On the ground floor.

That is the plan which has already been handed in to the members of the Committee?—It is.

What has been the effect of this piecemeal development on the manufacturing business carried on in the factory? Has it made it very difficult or what has happened?—It is very difficult in this way. In 1851, when my great grandfather founded the business in Dublin, it began in a very small area in Peter’s Row, opposite the buildings on the other side and ever since then the company has been gradually acquiring the property which is shown on the rest of the block with the exception of the yellow rectangle which is the Huguenot graveyard. Over the years the purchase of property has been in both directions and as money was available and as needs demanded, buildings of many storeys were erected, principally down Bishop Street. The earlier type of biscuit making machines were much smaller than they are at present and you will notice that Bishop Street has got a series of dogs’ legs in it and there are very few straight lines where you could get long lines of production plant.

Is the long line of production plant vitally important?—It is customary in industry.

Where at the moment are you able to keep your longest line plant?— The longest line plant is shown on the bottom section passing just behind the graveyard.

That is, Nos. 1, 2 and 3 plants?—Yes.

Nos. 4, 5, 6 and 7 are shorter?—Yes, shorter.

Is that a matter which affects your production?—The economy, yes.

If you were to acquire this graveyard, what would your plans be?—The plans would be an extension of what is already going on at the present time. We shall be shortly starting on the demolition of half the length of Peter’s Row out towards the corner of Peter Street in order to erect a new dough-mixing building. We are doing this in order to keep a straight production line. Already the site is cleared for a new warehouse and despatch department. The object is to try to get a straight production line. It is limited considerably by the graveyard in its present position.

Does the tracing of this show what you would intend the factory to be if the graveyard were bought?—It does.

Would you tell the Committee what effect that would have on your production?—It would permit the extension of five existing ovens, as set out in the lower plan, and the installation of two or, possibly, three more plants nearer Peter Street with the ultimate object of having the output of the plants brought directly into the warehouse area.

Would that, in your opinion, have a substantial effect on economic production?—It would. We regard it as vital if we are going to remain competitive.

You swore an affidavit in the Court of Proceedings and in paragraph 8 of that you said:

To comply with the Government’s policy and to make the Factory more economic and its products competitive a major reconstruction of the Factory is in hands and the Company’s plans would be advantageously revised and modified if the cemetery could be incorporated.

Does that represent the situation?—It does somewhat.

Would you like to amplify it in any way in reference to the Government’s policy?—In common with other industries, we were approached by the Committee of Industrial Organisation, under the Department of Industry and Commerce, asking each industry in turn what plans it had to modernise plant and become more economic in order to fit itself for possible entry into the Common Market and it applies even more now with this talk of possible free trade agreement between the United Kingdom and this country.

You think your factory would be unable to comply with those requirements unless you could extend your plants in the way in which you had hoped by acquiring this cemetery?—It would be a grave hindrance to us if we could not get the graveyard.

Your company has offered a sum of £20,000 for this and the actual offer has been put in. You identify that as being the offer by your company?—I was a signatory.

In fixing the price of £20,000 for this whole plot, was that in any way referable to what might be called the ordinary market value of this in the open market. Was it affected by the peculiar situation of the plot?—In the past values had been given to us by accredited valuers and I think the highest was somewhere round £750 and it seemed to us, having failed to interest the Trustees sufficiently beforehand, that as this was such a vitally important feature for us the offer had to be substantial enough to persuade the Trustees.

So that in fact this £20,000 has nothing to do with the ordinary market value of this property?—

Senator Sheldon: For the record, do you know the size of the plot?—The scale is 25 feet to the inch and I think it is roughly 80 feet by 60 feet.

Mr. Parke: About 800 square yards? —No, about 80 feet by 60 feet.

Mr. Parke: So, in order to get this, you are ready to pay £20,000?—Yes.

The Company has been in occupation of this since 1924 under a caretaker’s agreement?—Yes.

I handed in some time ago, when I was opening the case, certain photographs which were taken at that time and which you furnished the trustees. I wonder if we might formally identify those photographs?—Those photographs were reproductions from old prints which date back to prior to the 1924 agreement—

You mean old photographic prints?—

—which I have but they are very hard to follow.

You yourself were not aware of what it was like in 1924?—I was not brought in to see it although I was alive.

Jacobs took it over and they converted it into a recreation area?—Yes. The mortuary chapel, which features in the photograph, with the roof damaged, and so on, the actual masonry walls were reasonably sound. We repaired the roof, plastered and painted the interior but did not alter the shape or outline. Because we are a food factory, smoking is not permitted anywhere in the factory and the men in the bakehouse, where conditions were a good deal hotter than they are now, were allowed off 15 minutes in the morning and 15 minutes in the afternoon to go out and have a smoke and a cup of tea. They go into the shelter if it is raining. Normally they sit round on benches.

Have you a photograph of the place as it now is?—Yes. This was a colour photograph taken from an upper floor of the factory buildings about two years ago by one of our staff.

I suppose, if you were to acquire this property, you would have to make some other arrangements for the recreation of your staff?—We have roof gardens, anyway.

This is an attested copy of the Affidavit you swore for the court proceedings. Would you just identify it?—I do.

Are the facts in that Affidavit true to the best of your knowledge and belief?—They are.

How many employees are there in the factory at the moment?—There are about 1,600 weekly paid; somewhere about 500 men and a little over 1,000 women. Managerial and office staff of about 200.

If you were able to develop your factory in the way you would hope, would employment increase? Would you have a larger staff?—I do not think it would make very much difference to the numbers employed.

The witness was cross-examined as follows by Mr. McWilliam.

Mr. McWilliam: Before I cross-examine this witness there is one thing which I should like to make clear. It is suggested in some way that I am responsible for this witness. He put in an Affidavit in the court. I understood, from the nature of it, that his case was based on the necessity to Jacobs of having this graveyard. I disclaim all responsibility of having required this witness.

Mr. Parke: I withdraw any suggestions.

Mr. McWilliam: Mr. Jenkins, you are aware that this graveyard has been there longer than Jacobs, about 145 years?—Yes.

And, through all the extensions and additions that you continued to make, you were aware that that graveyard was there?—My grandfather would have been.

I meant that your factory would?— It would have been many years of development before factory operations came anywhere near the graveyard.

Exactly. At the same time, however, every time you acquired a little more property and extended the factory in one way or another you knew the graveyard was there and certainly since 1915, 1916 or 1917, when you started to make offers, you were aware that there would be very great difficulty in acquiring it?—Yes, but the point of acquiring the graveyard did not really become apparent from a machinery point of view until early in the 1930’s.

That is not quite the point. You knew all along that there would be very great difficulty in your firm’s acquiring it. You probably had nothing to do with the firm then?—My grandfather had.

Exactly. In 1934, you built your ovens in a position where any extension would have to come over the graveyard. Is that so?—They were built there as long as we could get them in. If we had had more room, those ovens would have been longer at the time. They were shorter than was normal practice even in those times because of the fact that the graveyard wall prevented any extension.

Exactly. In your Affidavit you say that if you could get this graveyard you could revise and modify your plans for extension. That means that you have plans for improving your factory which do not incorporate the graveyard: is that right?—We have plans but they could not be fulfilled as economically or as satisfactorily to us as by other means.

But it is possible to provide a considerable improvement without taking in the graveyard?—It would not be possible to put in the productive capacity that we could put in if we had the graveyard.

You stated in Paragraph 3 of your Affidavit that there were two courts off Bishop Street bounded by houses. You have all those in now?—We have incorporated the whole of the block with the exception of the—

Were those blocks taken in before you put in these ovens in Bishop Street?— They were.

Could you not have rearranged your factory then, knowing that the distance was too short to put in the proper ovens, when you took in those new blocks?— The principal one is known by Adam’s Yard: it is not marked on the map but the entrance is between 49/50 Bishop Street. It was a courtyard in at the back. In the interim, multi-storey factory buildings had been erected in different parts of Bishop Street. There was another courtyard opposite No. 32; another one, 35 and 36; but they were incorporated in the last century.

May I just have it clearly? Have you actually got alternative plans for improving your bakery without the graveyard?—We have alternative plans but they are restricted inasmuch as we could not put in as large equipment as we would like.

The graveyard, of course, as it was used by you and everyone—I have not seen the photograph but I understand it looks extremely well—has been an asset in some small way to your people: is that right?—It has, but that could be provided—

As you say, roof gardens?—Yes.

At the time this garden was made, I understand there was a plan made of the graves: is that correct?—There was.

And that showed a great many of the graves, at least where they were: is that right?—It only showed roughly— I have a reproduction of it.

Does it show a number of the graves? —It merely shows where there were tombstones roughly positioned in the grass.

Would this plan give the names that appeared on the tombstones?—Most of them were indecipherable. There were only five on which you could read any names at all. We took a note of those names and marked them on the plan opposite where the tombstones were placed against a wall.

That is what I would have thought. You would agree it is incorrect to say that none of the graves could be identified? Apparently, at least four or five could?—We could not identify exactly which tombstone belonged to which position.

I thought you had marked that on the plan?—All we marked is where the tombstones were. We have marked the tombstones with their names as standing up against the wall.

Does that not mean that the people whose names are on the tombstones were buried at the spot where you picked them up?—Some of them were in the middle of the graveyard and some were along the walls.

You would normally expect that where they had fallen down was where they had been erected?—We have indicated roughly what tombstones they were. This was a reproduction made in 1948. It only shows the outline of the mortuary chapel. There are other names attached to those. The only names we have are on the other drawing. The one name decipherable is the name that Captain Colvill mentioned. These are up against the east wall of the graveyard. Those details were taken at the time by a member of the staff who is now dead. These were produced at a later date because the tracings were dilapidated.

(Drawings handed in).

Do you not anticipate your factory will require to extend even further in the future?—Not beyond the plans we have at the moment.

Ever?—I do not think we could. We have certain machinery in our place far more closely together than any other biscuit factory I know.

Am I right in saying that the normal business if it does not advance tends to go backwards, so when you get the complete expansion on this plot of four acres you will want to expand somewhere else?—Not necessarily. In many other countries you have 24 hours continuous operation seven days a week. We have not got to that stage yet.

Do you think it is a possibility?—We are not even up to a full two-shift operation. There is a margin of productive capacity through greater machine utilisation.

Would you agree with me that it would be rather distressing if you moved your factory somewhere else having taken a graveyard which was there for 250 years for a purpose for which you did not really require it later?—I would not anticipate moving.

Senator O’Quigley: What is the anticipated increase in productive capacity that would result from the acquisition of this plot?—You could get 33⅓ per cent. increase on five existing ovens by extending them. You could install two or possibly three much longer plants which would give room for replacement of some of the older plants and give a 20 or 25 per cent. increase in productive capacity to the bakehouse over and above what I said before about lengthening the existing ovens.

That would be a 20 per cent. increase of your total production?—Yes.

Chairman: You said you did not think if this additional machinery was put in you would be able thereby to give additional employment. Are you prepared to make any comment on the converse of that? If it is not put in is there any likelihood of any restriction in employment?—If we do not succeed in keeping up to date there is a possibility of our biscuit prices remaining higher than imported biscuits.

That is part of productivity in every business?—We are very conscious of it.

Chairman: Thank you very much, Mr. Jenkins.

The witness withdrew.

Mr. Parke: That concludes the evidence on behalf of the promoters. There would be a number of matters on which I would wish to address the Committee if they so require.

Chairman: I am anxious to suit everybody’s convenience. Do you wish to address the Committee on these matters in your concluding speech or before Mr. McWilliam?

Mr. Parke: I am quite ready if it would suit the Committee to allow Mr McWilliam to call his evidence today. I will take whatever course suits the Committee. I will address you now or at the conclusion of the evidence.

Chairman: I think the evidence first would suit everybody’s convenience better.

Mr. William Percival Le Clerc sworn and examined.

Mr. McWilliam: You live in Dublin and you are attached to the Ancient Monuments Commission?—I am an Inspector of national monuments.

As your name would suggest you are a descendant of the Huguenots?—Yes.

Are you satisfied that there are relations of yours buried in this graveyard?—Yes, I am.

Give the names please?—I have a list of the names. There is Pierre, who was buried in 1773; Andre, who was buried in 1782; Jean, who was buried in 1789; Charlotte, a child—and, therefore, not an ancestor—who was buried in 1795, and Marie, who was buried in 1795. That is the list.

You are objecting to the acquisition and sale of this cemetery. Would you tell the Committee very shortly why you are objecting?—I feel the place where your forbears are buried in some way belongs to you. Even if its legal ownership may be exercised by trustees, I still feel the trustees have a certain duty to those whose forbears are buried there. I do not consider it right for the trustees to ignore the descendants of those people, who have a real interest in it.

In particular, this burial ground being the site of the church in which some of my ancestors were not only buried but baptised is of particular value and many descendants of the Peter Street Huguenot community will feel that this is not any burial ground, it is a very special burial ground. We all have ancestors buried here and there all over Ireland but this was the sort of original plot. It is of much greater value, representing the very origins of our family.

I think you got in touch with a number of descendants from the Huguenots, is that correct?—I did, yes.

And I think you received a number of letters?—I have been in touch with them, yes.

Did you get any letters approving?— There was no Huguenot with whom I got in touch by telephone who did not agree, as did every person that I telephoned who had a connection with this, that one must protest against this.

In addition to the people you got in touch with, Mr. Walsh wrote to your solicitors and claimed that he was a descendant of the Huguenots also?— I do not know Mr. Walsh.

But he wrote in. We will just pass that. I think in addition to descendants of Huguenots both the Archbishop of Cashel and the Archbishop of Tuam wrote to you? You have come in contact with them in connection with national monuments?—I had contact with these Catholic Archbishops and I wrote to them explaining what was afoot or what was proposed and I received letters from each of them agreeing that it was very right and proper to protest and very wrong to despoil the burial ground.

I think this is a copy that someone sent you. It may have been in already. Is that correct?—Yes, they sent me a copy.

I think a copy is in. Had you heard of any descendant of anyone buried in this cemetery who consented to this application until Captain Colvill came up today?—No, none of the people that I was in touch with approved of it. There was one who said he objected very strongly but did not in fact write an objection. He was a man of Huguenot descent who had become a Catholic, a man called Le Blanc who lives in Dublin. He said that although not of that persuasion he still very strongly objected to this proposal.

It had been suggested that the real reason for this is because there would be such a vast sum of money going to the poor representatives of Huguenots in the country. Have you any comment to make on that?—I did feel that between the trustees and the public there is simply one-way traffic, that is that they receive applications for funds but they themselves make no applications for benefactions. It was mentioned earlier that it was open to any member of the public—and I felt somebody had his eye on me—to subscribe to the Huguenot fund. An American subscribed but I have never felt it necessary to subscribe to the Ford Foundation but I am sure it would help its work. I was not even aware of the existence of the trustees until two or three years ago and I had often wanted to find out who they were because I used to be upset by the condition of the burial ground in Stephen’s Green but I did not know where to find them. It is not really very open therefore, I feel, to the members of the public to come forward with subscriptions.

You said you had telephoned some of these people, did you write letters to some of these people?—I did, yes.

Have you produced them?—

Chairman: I would like particularly to see the copies of the letters on which those replies were based. His Grace, the Archbishop of Cashel makes it quite clear that he writes the letter on the information supplied by Mr. Le Clerc.

Mr. McWilliam: Are those copies of letters you wrote?—Yes. That is Tuam. There are two to the Archbishop of Tuam.

Mr. Parke: Are they both the same or are they different?—No, they are two different ones.

Following are the letters referred to:

Sydney Avenue,

Blackrock, Co. Dublin.

16th February, 1965.

His Grace, the Archbishop of Cashel,

Archbishop’s House,

Thurles,

Co. Tipperary.

Your Grace,

I presume upon our meeting in connection with Holycross Abbey to bring the following matter to your notice.

A proposal without precedent in Ireland is to come before the Dáil on 18th February in the form of a Private Members Bill. It is to authorise the use of a burial ground for building a factory extension.

The burial ground is in Peter Street, Dublin; the plot is about 64 feet by 110 feet and was acquired by a Huguenot congregation who wished to continue to worship according to the rites of the French Reformed Church; they built a small church on it in 1711; this church was demolished in 1838 and a mortuary chapel was built in 1840; the last recorded burial was in 1879.

My personal interest is because the first of my family, Pierre Le Clerc, who settled in Dublin shortly after 1685, worshipped in the church; his five children were baptised there between 1717 and 1730; he was buried there in 1773 as were four other members of the family during the subsequent twenty years.

The burial ground later came to be vested in the Trustees of the French Huguenot Fund, who administer a small capital sum of about £2,000 for charitable purposes. Jacob’s Biscuit Factory has gradually surrounded the burial ground, which is now laid out as a flower garden providing an amenity to the employees. Jacobs have now offered £20,000 for the plot to permit an extension of their biscuit ovens. The Trustees obtained permission in the High Court to accept the offer, subject to decent exhumation and reburial of the remains of about two hundred and fifty people and to an Act of Dáil Éireann legalising these proceedings.

In the High Court the Judge said that the transaction was justified because it was a matter of the living against the dead and it would provide an income of about £1,000 a year for charity. This is a very questionable philosophy. The Trustees have not shown that there is any urgent need for such charity among the descendants of Huguenots or, if such a need exists, that they have made any attempt to raise funds by other means. Jacobs alone have a motive for disturbing the burials.

If your Grace feels that a motive of commercial expediency is not an adequate justification for establishing a formal legal precedent for what would be scandalous undertakings, a word in the right quarter may influence the outcome.

Percy Le Clerc.

Sydney Avenue,

Blackrock, Co. Dublin.

16th February, 1965.

His Grace, the Archbishop of Tuam,

Archbishop’s House,

Tuam,

Co. Galway.

Your Grace,

I presume upon our correspondence about Ballintober Abbey to bring the following matter to your notice.

A proposal without precedent in Ireland is to come before the Dáil on 18th February in the form of a Private Members Bill. It is to authorise the use of a burial ground for building a factory extension.

The burial ground is in Peter Street, Dublin; the plot is about 64 feet by 110 feet and was acquired by a Huguenot congregation who wished to continue to worship according to the rites of the French Reformed Church; they built a small church on it in 1711; this church was demolished in 1838 and a mortuary chapel was built in 1840; the last recorded burial was in 1879.

My personal interest is because the first of my family, Pierre Le Clerc, who settled in Dublin shortly after 1685, worshipped in the church; his five children were baptised there between 1717 and 1730; he was buried there in 1773 as were four other members of the family during the subsequent twenty years.

The burial ground later came to be vested in the Trustees of the French Huguenot Fund, who administer a small capital sum of about £2,000 for charitable purposes. Jacob’s Biscuit Factory has gradually surrounded the burial ground, which is now laid out as a flower garden providing an amenity to the employees. Jacobs have now offered £20,000 for the plot to permit an extension of their biscuit ovens. The Trustees obtained permission in the High Court to accept the offer, subject to decent exhumation and reburial of the remains of about two hundred and fifty people and to an Act of Dáil Éireann legalising these proceedings.

In the High Court the Judge said that the transaction was justified because it was a matter of the living against the dead and it would provide an income of about £1,000 a year for charity. This is a very questionable philosophy. The Trustees have not shown that there is any urgent need for such charity among the descendants of Huguenots or, if such a need exists, that they have made any attempt to raise funds by other means. Jacobs alone have a motive for disturbing the burials.

If your Grace feels that a motive of commercial expediency is not an adequate justification for establishing a formal legal precedent for what would be scandalous undertakings, a word in the right quarter would I am sure influence the outcome.

Percy Le Clerc.

23rd February, 1965.

His Grace the Archbishop of Tuam,

St. Jarlath’s,

Tuam,

Co. Galway.

Your Grace,

Thank you for your kind letter about the Huguenot Burial Ground; I am very grateful for your encouragement.

The Peter Street burial ground is not so well known as that at the corner of St. Stephen’s Green, but I fear that if the precedent is given for destroying one, the turn of the other will soon come; the cases would be exactly similar. Two precedents for the purely commercial exploitation of burial grounds as building sites would undermine any case for protesting thereafter. I find it hard to believe that in Ireland we can accept this new principle that burial grounds can be disturbed to serve commercial interest so long as the price paid for them is high and the money is given to charity.

Naturally I see this matter from a very personal point of view; I would quite understand if, looking at the matter from a more detached point of view, your Grace felt that the transaction involves no compromise of principles; but if a dispassionate consideration of the problem suggests that it is to be deplored, it would greatly strengthen my Petition to the Dáil, if I could include a letter from your Grace objecting to the proposal.

I fear that it is not now possible to arouse any sufficient volume of public protest in this matter, because few people seem to see it as one that can affect them personally and the number of people I have been able to find with any direct connection with the Peter Street burial ground is very small indeed.

Again I wish to thank your Grace for taking such an interest in this unusual problem.

Yours sincerely,

Percy Le Clerc.

Senator Sheldon: Would it be fair to ask did the witness write to all the Bishops and Archbishops or did he pick one or two?—I wrote to three, to Dr. Simms the Archbishop of Dublin and to these Catholic Archbishops.

How did you select them?—Well, I do not know very many Archbishops.

Senator Sheldon: Very few people know even three.

Mr. McWilliam: I take it that you felt strongly about this matter?—I did, extremely so.

And still do?—And still do. I should perhaps mention that from Dr. Simms I received a rather noncommital reply.

Chairman: We gathered when you had not produced it that it was not exactly favourable to your view. In regard to the map that was handed in by the previous witness, Mr. Jenkins, it appears to indicate one tombstone which is decipherable and which was mentioned by Captain Colvill and another of 1824 with the name Le Bas. That is a pretty common name in Dublin. Was any inquiry made by the witness of them?—

Mr. Le Clerc: I made a selection at random of names I thought might still exist and Le Bas is not among the list.

Chairman: What about Espinasse, Perrier and Pommoiea? The list of names at random were—Le Clerc, Crebessac, Prioleau, Mangin, Beranger, Mercier, Mestayer, Tourtellot, Cramer, Le Blanc, Lamotte, Tuthill, Pittar, Peter, Laserre, Adam, Bouvier.

Chairman: The only positive evidence we have of anybody being buried is this on the tombstones?—We have the registers.

Chairman: They have not down names as such?—

Mr. Parke: They are one of the exhibit documents which will certainly be handed in.

Chairman: That will be seen at the exhibit.

Mr. McWilliam: Mr. Le Clerc, where did you take this list from?—I took it from a list published in the list of burials in the register.

That is a letter you received from the Archbishop of Dublin?—Yes.

Deputy Larkin: Did you communicate with the Catholic Archbishop of Dublin?—No, I did not.

You wrote to the Archbishop of Cashel but never wrote to the Archbishop of Dublin.—I never met him and I could hardly presume to write to him.

Mr. McWilliam: I assume you never anticipated these letters would come up in Court like this?—I did not.

Mr. McWilliam: I think noncommittal would describe the reply.

Chairman: Shall I say people in my situation have occasion to make noncommittal replies when they mean “No.”

Mr. McWilliam: I hope I will not get a noncommittal reply.

The witness was cross-examined as follows by Mr. Parke.

Mr. Parke: I trust you will not. I want, Mr. Le Clerc, to say at once that I fully appreciate and I accept the views you hold. It is no part of my clients’ wish, or my own, to suggest otherwise; but I do want to put to you the clash of opinions, of which there are two obviously diverse views. You hold the view that on no account should these graves be stirred. Can you understand the views of the trustees that having considered the matter, they think otherwise if the needy can benefit? I know you do not agree, but do you respect it as a view?—I see the point. But I feel there are other ways of benefiting the living besides digging up the dead.

Perhaps you would tell us some?— One of them would be for the trustees to invite the Huguenot descendants to contribute to their fund.

Do you think a sum of £20,000 would be raised by that means?—I feel it possible that a sum of £1,000 a year would be raised by that means.

In the matter of the benefit accruing to the living, you do not think these graves should be disturbed?—I would not put it like that. I feel if the living were in dire need, which has not been established, if there were Huguenots starving in the streets, then of course one might descend to this kind of last resort, but it should be regarded very much as a last resort.

You really think that a charity should only take strong measures if people are dying in the streets? Surely you are pushing it too far.—You know the point I am making.

You are putting it too far when you say that?—Huguenots are in general fairly prosperous people. If you watch statistics, you will find Huguenots contributing to charities rather than depending on them.

I am sure you do not disagree with Mr. Godfrey or Mrs. Empey that they have more calls on their funds than they can deal with?—They have more beneficiaries.

You have no doubt there is a need for such a charity?—There is always a need for charity.

I mean this particular charity, not charity in the abstract sense. They have said they have a waiting list for the wretched annuity they can give. They have many people who would apply if the annuities were more substantial. They say they could assist young people in advancing in life in the modern professions. Do you accept that?—I do.

Do you think they are worthy objects?—I think they are.

Does it not come down to a clash of two divergent points of view?—I think they are taking the last resort.

It is a clash of two divergent points of view, both of which are very deservedly held by the people concerned. Do you regard this as having a very special place in your affections? This graveyard, when did you last visit it?— My last visit was in March, 1964. That was in fact just before I heard about this proposal, and it was only when I went there that I was told about it.

Were you in the habit of visiting that graveyard?—I passed it by, but it is rather complicated to get in there. It did take from one-half to three-quarters of an hour after arriving there before I actually got into the graveyard. I calculated something like 128 ancestors, some of these buried in Peter Street. I do not visit all their graves regularly. I used to pass along Peter Street and look in at the wall.

Hardly over the wall. Do you visit them with any degree of regularity?— No, I do not.

That was your first visit?—I visited it only once.

You mean you never visited the graveyard until 1964?—It took me a long time to find out how to get there.

You knew of its existence for a long time?—I did.

You were possessor of the register?—No.

You had access to the register?—Yes.

You never thought of visiting this place which held a very special place in your affections?—I am not given to visiting graves.

But you do feel strongly about them? —I do. I like to feel they are still there. I have only visited graveyards once in respect of ancestors. I just do not go moping over graves. But I do like to know they are not being interfered with, and are left there. This is no longer the place where their children were baptised. I know the bones are there under the ground but this is very different from the grave of your ancestors.

Do you feel strongly about all graveyards in that respect?—I do. I think one should respect them.

Have you ever taken any steps in connection with any of the other acquisitions of graveyards in the city of Dublin which did not concern Huguenots?—I do not know whether I would have been of an age to do it. When was the most recent?

One in Poulaphouca?—Poulaphouca— this is a very different story.

Why?—A different story because here it was not for commercial ends. It was for a very large-scale public utility and I feel there that was the only resort. You could not hold up the whole of a vast scheme of public good of that kind for the sake of a small burial ground.

So that you recognise that?—I recognise that in extreme cases, yes.

Have you taken any interest in the affair in Saint Kevin’s burial ground in Camden Row which is going on at the moment?—No.

Did you know about it? It has been much publicised in the papers?—I do not claim—

Senator O’Quigley: Is that conversion to an open space?

The Witness: I do not claim to be a burial ground expert. I have other interests in life than burial grounds but I am very interested in my family burial grounds.

The witness withdrew.

Mr. David Claude Cecil Mercier sworn and examined.

Mr. McWilliam: I think you are a descendant of some of the Huguenots who are buried in this cemetery. Is that correct?—Yes.

Can you give us the names of any buried there?—Francois Mercier and Abigail and Dinah. I only have that information from other people. I have no definite evidence myself that they are buried there except that my grandfather and my grandmother have told me over the years that many of my people were buried there.

It is very hard to give definite evidence of so long ago. I think you come from Limerick. Is that right?—Yes.

And you have no present associations actually with Dublin?—None whatever, no.

Do you object to this graveyard being taken over?—I object to the graveyard being taken over because my ancestors are buried there. I think it is wrong, incorrect, to do so and I support Mr. Le Clerc.

Have you interviewed or spoken to any members of your family?—Yes, I have. I have spoken to my son and my cousins and we all disapprove of it.

Do they all live in Limerick?—No. Some live in Dublin.

I think their signatures appear on these letters?—My son and my wife were objectors on those letters, yes.

The witness was cross-examined as follows by Mr. Parke.

Mr. Parke: Does the fact that this acquisition could mean great benefit to the descendants of those who are buried there in any way affect your mind on this problem?—Certainly, one would like to see poor people benefiting considerably by a large sum but at the same time I do not agree that whatever the sum should disturb my ancestors.

No matter what benefit it might effect?—No matter what benefit.

The witness withdrew.

Mr. Henry Aimers Wheeler sworn and examined.

Mr. McWilliam: I do not think you are a Huguenot?—No, I am not.

I think you have had considerable experience of graveyards around the city of Dublin?—I have seen a good many of them, yes.

Is that in some capacity?—Well, I have looked at some of them when I was writing a book in conjunction with another author on the Dublin city churches of the Church of Ireland and I have subsequently had occasion to look at a number of churches during my work with the National Monuments Branch in various parts of Ireland.

I think that in those days anybody who was buried had to be buried in a churchyard or graveyard of the established church, with the exception of these little Huguenot graveyards?— Yes, there were one or two, like Bully’s Acre, at Kilmainham, which were not attached to a church but, by and large, the only graveyards were parish graveyards attached to the established church.

I think there are a number of these graveyards which are now disused?— There are, yes.

And there are a number which would look as if they might become redundant in the near future—is that right?—Yes. I should say there are quite a number of those.

I think you have made a list?—Yes, I have a list here.

I think you have had them typed out and made copies of them?—Yes.

I think of the graveyards that are actually disused there is Saint George’s? —In Hill Street—old Saint George’s, yes. That has been disused. The church yard is a playground but the gravestones are preserved around the edges. The church is gone since the 1890’s.

Saint John’s in Fishamble Street?— Yes. The church was pulled down in 1884 but the graveyard still exists.

And Kevin’s in Lower Kevin Street? —That is the one that is being turned into an open space at the moment.

Is that part of the one that the little Huguenot graveyard belongs to?—No. The Cabbage Garden which is down Cathedral Lane, that is, off Upper Kevin Street. These are different ones. The Cabbage Garden is another disused graveyard not attached to any church. I think it is corporation property.

Then there is, of course, the Bully’s Acre you mention?—That is in the grounds of the Royal Hospital at Kilmainham. It was a public graveyard, closed, I think, around the 1850’s.

Is it enclosed by the wall of the Royal Hospital?—Yes. It is not accessible for that reason to the public.

It is in a different category?—It was— public—yes.

There is a list of churches which would appear to be likely to become redundant in future which have graveyards attached?—Yes. There are a number of these. Saint James’ in James’s Street has about 1½ acres of graveyard. I think it is quite likely to be closed.

And Saint Luke’s in the Coombe?— Saint Luke’s in the Coombe has a bit of ground and then Saint Mark’s in Pearse Street, about a half acre of ground and Saint Mary’s in Mary Street which is very liable to close has about one acre which I think is being laid out as an open space. It is quite a large graveyard.

I think there are other disused graveyards in the suburbs which you have not taken into account?—Yes. Donnybrook is one case in point.

The witness was cross-examined as follows by Mr. Parke.

Mr. Parke: I cannot dare to cross-examine you with any severity. I might cite your excellent little book to the Committee, which I have here with me. Does not that book show that in addition to the graveyards still existing and now disused many many graveyards, perhaps just so many graveyards, have entirely disappeared and been built over?—There are some which disappeared a very long time ago, in medieval times, like Saint Doolagh’s. There was a rather heavy mortality then. That was not very recent.

Of course, Saint Bride’s went in 1889? —Yes. It was part of a general scheme. There was a completely different layout of the streets in the area.

It has been completely built over?— You could not tell now where the church was.

The same applies to old Saint Thomas’s?—Yes. That was more or less in the middle of Cathal Brugha Street.

Was it not Marlborough Street?—Yes. The frontage was there but the actual site of the church was where Cathal Brugha Street runs now.

The church was built on an entirely new site?—Yes. The church was built on another site.

There is no trace of remains of the site of the old church or graveyard?—No. It is impossible to tell now where they were. The whole street alignment was changed. That was part of a general scheme of redevelopment.

Witness re-examined by Mr. McWilliam.

Arising out of that can you tell us what happened Saint Thomas’s old church?—It was badly damaged, I think. It was burned certainly in some of the fighting during the Troubles. I forget exactly when. I think the ruins were removed about two or three years later. They decided not to rebuild it and to take the opportunity apparently of cutting a street through, what is now Seán McDermott Street. There was no street continuing through to O’Connell Street. It was blocked by the old Saint Thomas’s church.

The point about that was that it was being used until it was knocked down?— Yes, until it was burned.

And then they built a new one?—Yes.

Mr. McWilliam: That is all the evidence for the petitioners.

Chairman: Thank you, Mr. McWilliam.

The witness withdrew.

Chairman: Since members of the committee do not wish to call back the witnesses, I think all the witnesses may be allowed to go at this stage.

The Committee adjourned at 6.45 p.m. and resumed at 8 p.m.

Chairman: Before counsel open their addresses, may I say the Committee have decided we shall hear the addresses by counsel on both sides now? Having heard them, we shall adjourn until such time as we have had an opportunity of seeing the transcript of evidence. We shall then meet privately and deliberate on the transcript, as we should do in any event. Then we shall consult with the agents on both sides and advise them whether we have found the Preamble proved. If we have found the Preamble not to be proved, then the necessity for anybody else to attend will not further arise. If we find the Preamble to have been proved, then the Committee will meet again to consider the Bill section by section and the amendments and we shall certainly, in that event, require some assistance from the promoters. It will be a matter for the petitioners then to decide whether they will come in. A suitable date will be arranged between the Clerk to the Committee and the agents. If we find the Preamble not proved, this is the last occasion on which we shall have the pleasure of seeing you. Might I suggest that we get one point clarified beyond question? As I understand it, in the scheme in relation to the charity, which is an amalgamated scheme of 1902 and 1917 Orders, Part I is the property included in the 1902 Order and Part II is entirely the property added in 1917. Is that agreed to be the correct version?

Mr. Parke: That is correct.

Mr. McWilliam: That is so. This matter concerns entirely, as far as I am concerned, and my clients, the second last recital to this Bill: “Whereas it is expedient that the said cemetery be closed.” “Expedient” is the operative word. I shall not go into a long talk about expediency but I do not think anybody will contradict me when I say that it is not sufficient to say it is expedient for either Jacobs or the Trustees of a Trust if it is not a thing that the people of this country would approve of. This is an Act of the Oireachtas. To my mind, there seems to be some confusion of thought with regard to the nature of the Trusts of these funds. There is no doubt that the first scheme, prepared in 1902, dealt with the funds of the conforming church which was part of Saint Patrick’s Cathedral and then its subsidiary, Saint Mary’s across the river.

I think the Committee will be satisfied that the two bodies, the non-conforming and the conforming, together ran these schools at Mylers Alley and that almost certainly, from the point of view of the reference I gave from the book by Miss Lee, at page 228, the funds of the schools were merged with the funds of the representatives of the conforming church of Saint Patrick’s. At the regrettable likelihood of my being tedious. I think this is important because the funds for those schools were probably associated with other charitable funds and there is nothing at all before me or before the Committee to show that any of the funds which were subsequently applied—at least the remains of them after defalcation—in 1917 were joined with the previous funds and were used for anything but the maintenance and sustenance of the minister and the upkeep of the church. I am not suggesting for one minute that these people kept accounts and divided their funds. They did not do anything of the sort. If they had spare funds they applied them, and the Committee will be satisfied that the primary purpose of these funds, joined in 1917, was the upkeep of the church and graveyard.

I know perfectly well that the church had long since collapsed and been knocked down. They obviously appealed to the Vice Chancellor in 1917 because Clause 3 (a) to the scheme gives liberty to employ, not only the income, but the capital of the funds for the maintenance and upkeep of the graveyard. Presumably he had, in 1917, before him, some account of the unfortunate condition of the graveyard.

The trustees do not appear—there is no record before us with regard to this: it may be they did but there is no record before us that the trustees made any attempt, at that time, to assess the actual cost of repairing and restoring the graveyard, putting it into a tidy condition and assessing how much interest or capital they would have to use. Your first duty, if you are the trustee of a graveyard, is to the graveyard. If you are trustee of a fund then your duty is to control the fund. It is an accident or incident of this case that the same trustees are trustees both of the fund and of the graveyard.

The fund is clearly in two parts, joined in 1917 to what was originally there in 1902. The trustees were given, specifically, the duty to look after the graveyard. They might expend money but the graveyard was vested in them as trustees and no matter how much all the trustees may have thought they were merely trustees in some way which did not detail any duties upon them it is clear in their actions that they knew in their hearts they had to keep up the graveyard. The only people they could be keeping it up for was for the benefit of the people interested in the graveyard, the descendants of the people who were buried there. They did that to the best of their ability and they did an extremely good job when they made arrangements with Messrs Jacob whereby Messrs Jacob took over the expense of the graveyard and kept it in a delightful condition as a garden.

That may seem slightly irrelevant but it is very important in this connection to realise that the trustees had two distinct duties, one, to keep up the graveyard and, the other, to do the best they could, with the funds they had, to advance the education of descendants of Huguenots and keep the elderly people who were in destitute circumstances. It has been suggested, and I am sure it will be again suggested, that the High Court said this, that, and the other. Might I very respectfully point out that all the High Court did was to say that they saw nothing wrong with applying the funds obtained by the sale of the graveyard towards the promotion of the care of the old and the young in a charitable way if the Oireachtas decided to pass an Act to that effect.

The whole effect of that is that the whole responsibility is thrown on the Oireachtas and, primarily, on this Committee to think out for themselves, not by saying a judge of the High Court has decided anything, but deciding for themselves if this is a proper thing to do. I cannot emphasise too strongly that it is for this Committee to make their report without regard in any shape or form to any proposal of a High Court judge other than that he has said it is proper, if the Oireachtas decide that they could pass this Bill for the High Court to implement it to the best of their ability and they will do so. That is a very important consideration in dealing with this matter.

That brings us to an Act of the Oireachtas. The Oireachtas can deal with a great many things and a great many things are dealt with, not because they are not against the Constitution, but because it is expedient or, as I would say, it is proper so to do. I would suggest one of the things it is not proper so to do is to desecrate, and I use that word quite plainly, a graveyard for the purpose of business. That is what the net issue is. Are we going to desecrate a graveyard for the purpose of business?

I put it absolutely straight to this Committee that the attitude of the greater part of the people of this country is that that very thing should not be done. It is improper to do it and it is not expedient to do it. I know it is expedient for Jacobs and it is expedient for this charity. It is expedient in the general sense of the good of this country.

What is this Bill going to lead to? The Oireachtas, the Dáil and the Seanad must face up to it. Will all our derelict graveyards be left open to sale for commercial purposes whenever anybody has enough money? It is merely a matter of money in this case because two or three trustees have come up here—I do not pick any quarrel with these trustees—and there is no doubt they were not prepared to sell this property for a small sum of money. It is only the amount of money they are concerned with. Is it expedient for this country that we should depart from what is the accepted practice of our Christian community that graveyards are in some way sacred and intended to be permanent? We have to face up to that.

Let us take the trustees themselves. Most of them have been trustees for a very long time. Apparently they were short of funds for the second part of their charity but they took no active steps of any sort or description to try to increase their funds. Mr. Le Clerc had never even heard of this particular charity. It was not publicised in any way. No communication was made to people who might subscribe to the charity. It may be in law, I fully agree, they were not bound to do anything of the sort but does that excuse the trustees from not doing anything? Mr. Le Clerc says it is most probable that Huguenot representatives in this city or country probably, or possibly, might subscribe quite well to the charity if they knew about it or were asked to do so. Does that excuse the trustees from doing nothing when they say they were absolutely destitute for funds? I do not agree it does. It is suggested and was put very forcibly to the petitioner in this case that he took no interest in this graveyard. Now at the time this graveyard was derelict he personally was too young to have any interest in anything. By the time he became interested in wondering what had happened to his ancestors, the graveyard was in a very tidy condition but it is not to be suggested that when there are trustees responsible for looking after graveyards any private person is supposed to go and tend them himself. It was suggested that he in some way was to blame because he was not sufficiently interested to go and spend a considerable time in this graveyard. I do not know about anyone else present in this room, but I should have thought most of us very rarely visit the graves of our relatives once we know where they are. We do not keep going back but we like to know that these graves are there and that the people are still in them. Some feel more strongly than others about this. In fact some feel very strongly. I would like to think that most people in this country feel very strongly that the bones of their ancestors are allowed to remain in peace.

These people bought this graveyard with their own money by subscription in 1711, one of the purposes being to put their bones in it when they died. The trustees are the trustees of that graveyard to see that the wishes of the people are carried out. I very much doubt, if the evidence of the trustees is correct, that these people, having thought about it all which, of course, they did not, would say:—“Yes, take us all up and sell the graveyard and apply the money to some other charity.” Now I know nobody can answer it but most of us have knocked around the country and have met people but when it actually comes to the person concerned being asked: “Are your ancestors to be moved?” they would probably say “no”. All the people in this case have said “no,” with the possible exception of Captain Colvill who does not seem to have any direct ancestors in this graveyard. Mr. Wheeler gave a list of a number of graveyards in this city which are available or are disused.

Are we going to start a rush, a competition by big insurance companies to build massive office blocks on top of these graveyards? Some of these graveyards are in the centre of the city and are very valuable. Are we going to start a competition in bidding for old graveyards? In my submission it is against all the beliefs and feelings of all the Christian communities in this country.

Are we going to take Merrion Row next? The trustees were very slow to express an opinion of their willingness to sell it. They did not say that their ancestors were buried in Merrion Row. I do not know whether they were willing but certainly they seemed to be very slow to agree that they would sell Merrion Row if the opportunity arose. They have no ancestors in Peter Street, with the exception of Captain Colvill. With regard to the attitude of the trustees in this connection, it is very easy to understand that if, say, I were a trustee of a very impoverished charity, I should probably be very much exercised in my mind. It is a very difficult dilemma these people are in. They have a charity which is short of money and they feel they can do good but have they tried the other possible methods of doing good to the people who would benefit by this charity? I submit that they have not.

Again I come back to the trusteeship. I would have thought that the ordinary man in the street felt that the people principally interested in the graveyard were the descendants and that the trustees were trustees for those people as the nearest people interested in the bodies that had been buried in the graveyard. Did they attempt to find the attitude of these people? No, they made no attempt. It is not just enough for the trustees to say it would be terribly difficult. I would not have minded had the trustees held a meeting and inquired if anybody was interested. But nothing was done at all and we are palmed off with the quiet expression that it would be impossible to trace anyone. They had the list of names; all they had to do was read down that list and I am willing to suggest that some one of the trustees must have heard of the name of the petitioner because, although he is not a very distinguished man, according to his own reckoning, he is in public life, has been heard, has given public lectures and his name is certainly familiar in several parts of the city. I know they were not guilty of any breach of trust in not finding out the views of the descendants but I would have thought that that was one of the things that would have been done if they were active, interested trustees.

Now with regard to Jacobs, they came into this place 145 years after the graveyard was opened. They gradually extended—very right and proper if I may say so. I am not casting any aspersions on Jacobs—they have a most honourable name in the city in business but they are business people and they want to extend their business; very properly. They want to do it legally and instead of encroachments being made they have come openly and tried to do this properly—more credit to them. But we are getting to the position that because they have the power and strength and can offer enough money they are going to be able, merely because of the amount of money, because the trustees have, practically speaking, admitted that it is the amount of money involved, to take over these graveyards. As far as I can see this is how the case lies. It is not a thing which is approved generally. I cannot see how anybody can say that manufacture of any sort, whether, as in this case for the benefit of the community or whether it is only slightly for the benefit of the community really makes any difference to the principle of the matter. It does not make any difference to the principle of the matter whether the sum advanced is £200, in which case it is desecration, or £20,000, in which case it is a proper thing to do and not desecration.

I should like to keep to the instances that have been quoted as having been similar in some way. Kevin Street appears to have been taken over to some extent for the purpose of road widening, a public utility, but I have no details of it. The other one is Saint Thomas’s and there appears to be very little doubt there were two aspects of that. First of all, the church being knocked down or burned out—very much the same thing —the local authority acquired it for a public utility—again a public road down where the church had been. They are quite completely, I would suggest, different cases, much the same line as the Poulaphouca which was on a much larger scale. I would like the Committee to remember the remark of my client when he was cross-examined about it in the witness box to say that that was a general utility for the benefit of the entire country and was comprising an enormous scheme of which this graveyard was a very small portion and was for the benefit of the general public. I know that, in spite of Mr. Parke’s disclaimer of any intention to put his case on the ground that the advantage to Jacobs is of general use to the community and therefore he comes in under that ground, the only reason for the affidavit and evidence of Messrs Jacobs is for that purpose. I should like to suggest to this Committee that the advantage to a private company—a public company, of course, but not a public utility company—is not in any way to be compared with the advantage to the general public of a general public scheme which was the case with both Poulaphouca and the two road widening schemes.

The rest of my case, Gentlemen, you have heard entirely in my cross-examination and I do not want to repeat everything several times. I would just like to remind you that instead of being challenged for his public spirit in coming up on a case in which he feels very strongly, and is entitled to feel strongly as being personally associated with this graveyard, and as a member of the public, the two or three people who have given evidence in this Committee ought to be commended for the views they have expressed in the witness box. That it was extremely difficult for them to do so and that it is an ordeal which no witness enjoys must impress the Committee with the strength of their belief that what they are doing and urging is right and that they feel very strongly that any such sale as this and use of the graveyard is a desecration of a religious piece of ground which simply ought not to be allowed.

Chairman: Might I just ask you a few questions that arise in my mind on your remarks? You opened by saying you were dealing with Paragraph 5 of the Preamble. Do I infer, from that, that you accept Paragraphs 1—4 and 6?

Mr. McWilliam: I have been brought up in the hard school not to admit anything but I cannot dispute anything down to Paragraph 5; shall I put it that way.

Chairman: Perfectly fair.

Mr. McWilliam: They are all documents. It is established by documentary proof.

Chairman: The Committee will of course agree with you, without question. It seemed to me that it was the High Court that decided what was the proper advertisement and it was for us to decide the merits of this application and we are not bound by any Order of the Court. You also said that the 1902 Scheme dealt with the funds of the conforming Church. I take it you mean dealt only with the funds?

Mr. McWilliam: Exactly.

Chairman: That is what I thought. The scheme, as far as I can see, does not differentiate in the body of the Scheme at all between Parts 1 and 2, if I correctly read it.

Mr. McWilliam: Apparently that is correct, yes.

Chairman: I wonder if the trustees would have been empowered to expend moneys out of the Trust Fund for the purpose of making a public appeal by way of advertisement, for example, for funds. I do not know, to be quite honest with you. I was hoping I would get some enlightenment from Counsel on that.

Mr. McWilliam: I have frequently and almost continuously during the course of my residence in Dublin been pestered with advertisements from charitable organisations of one sort or another. I thought it was just common practice. Practically once a week I get an advertisement from some charitable organisation.

Chairman: I do not know whether or not there is an inherent right in a charity to expand or not; I do not know.

Mr. McWilliam: I am quite certain that if the return exceeded the advertisement no question would ever be raised.

Chairman: I agree, because you take the cost of the advertisement out of the first return you get in just as the first money collected by one particular body is always put towards the expenses incurred by that body. Supposing they did not get it in, I wonder would they be entitled to deduct it?

Mr. McWilliam: This is a charitable organisation which has been maintained for a very long time. I very shrewdly suspect that if a report of a meeting had been put into a paper as a report they might not have to pay for it but certainly no attention was drawn to this charity at all, drawn to the notice of the people who would be likely to subscribe. I can see that there must be very inexpensive ways of doing that.

Chairman: Thank you.

Mr. McWilliam: There was just one matter that you did ask me.

Senator Nash: In your view, Mr. McWilliam, is it the proper course for this Committee to project themselves into the wishes of the trustees or de novo, on their own, to come to a conclusion whether or not it is expedient or should they, on the other hand, consider whether the trustees were correct? In other words, even if this Committee may themselves come to a different opinion from the trustees should they, if they consider the trustees had reasonable grounds for coming to their conclusions, agree with the trustees?

Mr. McWilliam: No, I do not think you are concerned at all with the trustees. First of all, I think you are bound to accept and I will certainly accept that the trustees are acting perfectly properly and in an upright fashion in coming here.

Senator Nash: That is accepted.

Mr. McWilliam: Then the point to be considered is: is it expedient for the purpose of the good of the country as far as you are concerned?

Senator Nash: In other words, is this Committee to deal with the matter like an appeal from a jury: you accept the decision as being correct unless—

Mr. McWilliam: No, there is no question of an appeal. You consider it, de novo.

Senator Nash: In other words, it will be our own decision irrespective of what decision the trustees—

Mr. McWilliam: Exactly that.

Chairman: We have to consider whether it is expedient in terms of public policy. “Expedient” here is—

Mr. McWilliam: You must consider whether it is expedient for the persons concerned—some are the trustees beneficiaries and Jacobs and my clients —and public policy: you consider the whole lot.

Chairman: We have had no memorandum from the Attorney General, I gather. Is that not so. If it is a matter of public policy, I am surprised at that.

Mr. McWilliam: I thought the Oireachtas was the proper body to consider whether an Act should be passed and whether it was proper to do so. You may get advice from the Attorney General.

Chairman: The Oireachtas is the proper place to decide but I am surprised that the Attorney General has not given us a view.

Mr. McWilliam: I think he expressed a negative opinion.

Chairman: He did appear on the summons.

Mr. McWilliam: My recollection is that he expressed the view that he did not wish to take any part: is that not correct?

Mr. Parke: Yes. When the matter came before the Court on the first occasion, it was indicated that possibly the Attorney General would oppose the Bill. Subsequently, when the matter came up on the 5th October, 1964, the Attorney General said he was not expressing a view one way or another and left it entirely to the Court.

Senator Nash: One further question. The Trust was set up first in 1902. I take it you accept, judging from photographs we have got, that the graveyard was in a shocking condition and looked like a dump in 1917? Was there authority to expend moneys between 1902 and 1917 on its upkeep and maintenance?

Mr. McWilliam: There is a little confusion about this. This graveyard was not in the scheme in 1902. It only came in in 1917. The scheme only concerned the conforming funds at that time. This graveyard had nothing to do with the scheme until 1917.

Senator Nash: Is it that there were no funds in existence prior to 1917 out of which this graveyard could be maintained?

Mr. McWilliam: There were funds in Court but nobody had control over them.

Chairman: The funds in Part 2 were there but in Court?

Mr. McWilliam: Yes.

Chairman: There was no manager of the funds?

Mr. McWilliam: Exactly.

Senator Nash: Was there no one who would claim title to them, who was sufficiently interested in the graveyard?

Mr. McWilliam: That would appear to be the position.

Senator Nash: Or was it just sheer carelessness on the part of the people whose relations were buried there?

Mr. McWilliam: Actually, nothing was done. That is the only fact we have.

Senator O’Quigley: Can you give us any enlightenment on the duty of persons in control of disused graveyards with regard to their maintenance and upkeep?

Mr. McWilliam: I meant to refer to that. Under the Public Health Acts they were bound to keep them up. Section 185 of the Public Health Act of 1878 states:

When any burial ground not being attached or contiguous to any such church, chapel, or place of workshop, nor situate as aforesaid

—that is, in a demesne—

is without any sufficient fence, or is not kept in decent order, the burial board for the district within which such burial ground shall be situated may, by notice in writing to the owner of such burial ground, require him properly to fence the same and put it in decent order …

It is a very long section. Then we have section 186, which would apply to this case:

When such owner cannot be ascertained, or notice as aforesaid cannot be served, such burial board may give notice by public advertisement in some newspaper circulating in the county wherein such burial ground is situated, of their intention to fence the burial ground, or put the same in decent order …

When they do the work they pay for it and charge the people if they can find them.

Chairman: What is the burial board in relation to this cemetery? Would it be Dublin Corporation?

Mr. McWilliam: I think so.

Mr. Parke: That is correct. Certainly in 1902 or 1917 they would have been.

Chairman: Whatever was the appropriate authority never did give notice under that section?

Senator O’Quigley: There is not any section which throws an obligation on the owner.

Mr. McWilliam: The first section does. I have not gone through the Act. There may be some penalty prescribed. I do not know. It says they “shall” do. The penalty would apply if they do not do it.

Senator Nash: It says they “shall.”

Mr. McWilliam: Yes.

Chairman: Would you mind reading section 185 again?

Mr. McWilliam: It states:

When any burial ground not being attached or contiguous to any such church, chapel, or place of worship, nor situate as aforesaid, is without any sufficient fence or is not kept in decent order, the burial board for the district within which such burial ground shall be situated may, by notice in writing to the owner of such burial ground, require him properly to fence the same or put the same in decent order within a time to be specified in such notice, not being less than six calendar months, and if such notice be not complied with within the time specified in such notice, the said burial board may securely fence such burial ground, and put the same into decent order, and the expense thereof shall be deemed part of the expenses incurred by the burial board in the execution of this Act …

The next is section 186 when the owner cannot be ascertained.

Chairman: In section 185 there is no obligation thrown on the owners of the cemetery itself. There is an obligation thrown on the authority, Dublin Corporation, to do something about it but there is no obligation on the owners?

Senator O’Quigley: Except by implication.

Mr. McWilliam: Except indirectly. The only other thing I think I was asked about was the proper advertisement. I am not suggesting that the Trustees were by law required to do this. I have never suggested this. Of course, they are not. They did all they were required by law to do. But I would suggest that a Trustee who exercised his mind about the fund would possibly have done a little more in this case. If I might be allowed to make one remark about something I overlooked. The petitioner refers at paragraph 7—Mr. Parke mentioned this—to the question of consecration. It was the Trustees who said this ground was consecrated. They believe it was consecrated.

Mr. Parke: The church was consecrated.

Mr. McWilliam: I would like the Committee seriously to consider that there has been no theological evidence brought in by the promoters as to how they propose to deconsecrate this ground if it was consecrated. It is a matter which is of importance to people of religious susceptibility in this country that there should be a piece of consecrated ground now dedicated to the manufacture of any commodity. If that is the position it would then clearly be, in my submission, desecration of the piece of ground no matter how reverently the bodies had been removed.

Mr. Parke: I should like to say in reference to remarks which Mr. McWilliam made before he was asked certain questions which suggested that Mr. Le Clerc and his witnesses were severely challenged about the views they hold. I trust no observation of mine did anything of the kind. I have the highest respect, and so have my clients, for the views held by Mr. Le Clerc and those who support him. I trust nothing I said to him could in any way be treated as challenging his sincerity and good faith. I understand fully his attitude of mind and the ordeal which my friend says he was subjected to. I trust I did not make that ordeal any more onerous by making any reflections on his attitude of mind. My attitude to his point of view is that I think it is wrong. I think it is mistaken but that it is sincerely held would be the last factor I would like to challenge.

This is an unfortunate case where one has a clash between certain viewpoints. That held by the petitioner and those who support him is one which is undoubtedly widely held; on the other hand, that held by the trustees is I think one which is widely held. It is a question as to whether we primarily consider the interests of the dead or the interests of the living and it would be idle for us to try to imagine what would be the views of the persons interred in that cemetery, could they be asked, or had they been asked before they were buried: at any future time would you like your descendants to benefit from this plot of ground or would you prefer to remain there for all eternity irrespective of whether by so doing you are going to deprive your descendants of benefits?

Now, it is a point of view which we cannot expect the holders to yield because it is in some degree largely a matter of conscience but the Oireachtas have got to consider expediency and I accept at once what Mr. McWilliam has said about the meaning of expediency. It means expedient having regard to the results of the Bill and the effect which that would have firstly upon certain defined groups of people, principally in this case those persons who are entitled to benefit from the charity, and secondly Messrs Jacob, and also upon the general public and the question of public policy must inevitably enter into it. If this Committee reports to the Oireachtas that they consider that notwithstanding the benefits which will accrue to the defined classes I have mentioned they still consider it to be contrary to public policy then that is the end of the matter and I cannot press that that would not be a right viewpoint for the Committee to take. The Committee represent the sovereign Legislature of this country and have within their power the making of laws for all persons, not merely the descendants of the Huguenots who benefit from the charity, nor Messrs Jacob nor any other group; they have to make laws for the whole community and if they think that it is not expedient having regard to all the factors, then of course the Committee will report against this Bill and it would not be for me or my clients to complain on that ground, but I want to urge on the Committee that it is expedient from all points of view that this Bill should be allowed to proceed.

Now, I am reduced to considering only this one portion of the Preamble. I would ask you, gentlemen, to consider the reality of the situation and not the bogies which Mr. McWilliam has dangled before you. It is no part, if I may respectfully submit, of this Committee’s function to decide what might happen if another Bill relating to another graveyard with wholly different circumstances in the background were to be presented. I submit that this Committee is concerned to legislate for the circumstances which arise before it. What are those circumstances? You have a charity which is short of funds. Now, I will deal in a moment with the criticism which has been levelled against the Trustees on that score. You have a charity which is short of funds. You have a charity in a position to acquire funds and I suggest that no matter how vigorously they might have prosecuted a fund-raising campaign, the possibility of raising a capital sum of £20,000 is so remote that it may well be disregarded. For whom are the Trustees bound to apply these funds? They are to apply them for the descendants, at least in part, of the very people who are buried in this cemetery. They are not considering uprooting Huguenots to benefit somebody else. They are considering applying the funds which they will raise as a result of disinterment for the very descendants of that community who lie buried there. I would be sorry to think that if these people who are there interred had been asked this question in their lifetime they would have been so selfish as to consider that they would rather remain in their graves in perpetuity than allow that graveyard to be turned to the advantage of their impoverished descendants. We are not seeking to apply these funds otherwise than for the benefit of the community from which this graveyard ultimately derives and while I fully understand the views of those who think that the desecration of a graveyard takes place whenever human remains are removed and the graveyard applied to some other purpose, I would submit, gentlemen, that it is expedient in taking into account all the aspects of this case that the descendants of these people should benefit.

Now, we are in this country very respectful to the dead, and rightly so, but are we entitled to presume that the dead take so narrow a view or would have taken so narrow a view of their own rights while they were alive? The Trustees have been criticised severely for not trying to raise funds more vigorously. I have already indicated that it is most unlikely that any sum equivalent to this could ever have been raised. One member of the Committee asked did they think that it would have been right to expend a large sum of money on advertising and Mr. McWilliam replied that he received, as many of us do, many requests for subscriptions every week but it is my experience that those invariably come from charities which are not organised under an order of the Court. I do not think there is a clause to be found in the scheme of 1917 which would authorise them to spend sums of money on advertising. Of what use is seven shillings or five shillings a week to anybody? Are we not bound to take into account the benefit that would come to the living if this Bill is promoted? I have been trying all along to confine this case to that aspect of it and to lay as little stress as possible upon the accruing benefits to Jacobs for whom I do not appear and in whose commercial future the Trustees are not interested in the sense that they have no particular interest in them, but the petitioner throughout the whole of the petition and throughout his evidence has laboured all along that what we are trying to do is to sell this graveyard for commercial purposes and no others. That is the reason why the Trustees are here. If it is expedient that they should obtain this money for the benefit of a charity, I do not see why it should be inexpedient if the result is that a graveyard is built over. Now, of course, if it were an existing graveyard, fit to take human remains, it would be a desecration. If the scheme advanced by the ESB were put through, you would possibly have an existing graveyard under the transformer station. You have now an opportunity of reverently and properly disinterring the remains, and if the Bill proceeds I have no doubt it will contain all proper precautions in that respect. You will have the remains reinterred in a plot, and who will their neighbours be in that plot? They will not be people who have been buried in the ordinary way in the graveyard but, as Mr. Godfrey has told the Committee, they will be other persons who have been disinterred and reinterred.

Gentlemen, you will be doing no new thing in agreeing to this Bill. In the case of Saint Thomas’s, it may be said that road widening was better than making biscuits, but the fact remains that all the persons there interred were disinterred without apparently a word of public protest. This great feeling which we are told exists in this country against disturbing corpses remained remarkably quiescent while that was being done. In 1899, and people say we are perhaps less religious nowadays than we were in Victorian times, it might be expected that there would be a greater outcry. In 1899 one of the most ancient parishes in Ireland was taken away and its graveyard taken away so that a portion of the city could be extended. That was when the Earl of Iveagh endowed a scheme for the citizens of Dublin living in that area. Is that not an example of what is expediency? If the scheme had been held up or prevented because of an outcry, or because of the removal of one of the oldest parish graveyards in the city of Dublin, would that have been expedient? We know that the whole development produced great public benefit for the citizens of Dublin and it was done at the expense of the removal of graves from an old graveyard and the reverent reinterment of them.

That was, I respectfully suggest, an example of expediency and a proper example of expediency. This case is even narrower. The persons who are to benefit are the actual descendants of the same community, perhaps not of the actual persons buried, but of the same community as those buried in that graveyard, and I would suggest that a more proper application of the funds would be difficult to imagine.

On the history of the funds, I think Mr. McWilliam has introduced a certain degree of confusion. Analysis will show that the situation is not quite as he imagines. He laid great stress on the school at Mylers Court. We do know from the evidence before us that each of these communities, the conforming and the non-conforming, have their own funds which they applied, while the charities still existed to maintain and relieve the poor. Those funds became limited to the relief of the poor. Certainly the vestries continued to exist after the abolition of the charities, and this applied to both conforming and non-conforming. These funds in 1902 represented the conforming funds and they were obviously charitable funds for the relief of the poor, the Saint Mary’s church not being in use and there being no sustentation. That was the situation in 1902 and this fund was by order of the Court set out for certain charitable purposes in 1902. It was limited because it applied to those members who were members of the Church of Ireland.

What happened to the non-conforming? They had ceased to exist. Their vestries ceased to exist. Their funds were still vested in some Trustees but their graveyards were not at all. The graveyards of the non-conforming charities were never vested in the Trustees of the charitable funds. Then we know there was a lapse and that 20 years’ paralysis struck down the funds and that during that time there were no owners of the graveyards. But something had to be done about the graveyards because they did belong to these nonconforming charities that had long ceased to exist. Then when Mr. Le Fanu applied in 1917 to have the scheme of 1902 amended the documents show that for the first time these graveyards and the church fund became vested in the same people so that the charitable funds could be applied in part to the maintenance of the graveyards and the graveyards thereupon became vested for the first time in the Huguenot Trustees. They had been all conforming Trustees. Two more were added. The funds were brought in together and the two graveyards were brought in. There is one reference only in paragraph 3 (a) to the fact the Trustees “may” pay out of the capital. Senator Sheldon referred to that at an early stage. It seems to me this was discretionary, deliberately discretionary. If Mr. Justice Burton had intended to say “they shall” he would have said so.

I accept Mr. McWilliam’s submission that the maintenance of the graveyard was the object of this trust. We know that Peter Street was in bad condition at that time. If it had become a major concern the scheme for Peter Street would have been put into the report. It would have been obvious that a special provision would have to be made for a substantial capital sum. I shall accept correction on that. We have no evidence on it except general knowledge and the knowledge that it was in bad condition.

Mr. McWilliam: Capital is mentioned.

Mr. Parke: Mr. McWilliam has misunderstood me. If it were agreed to be a primary object of the scheme that the graveyard be maintained in preference to the charges, or pari passu with the charges, then it must have been obvious in 1917 that a very considerable sum would have to be applied in respect of Peter Street. It may be difficult to believe that if that were so there would not have been a special provision in the scheme relieving them. I agree of course that the trustees are empowered; they may do it. I cannot accept Mr. McWilliam’s contention that on reading the scheme as a whole the trust either primarily or pari passu was devoted to the graveyards.

If that be so, I think Mr. Godfrey has expressed the views of the Trustees when he said that he regarded this as a fund which had two objects and he had to administer both of them. As Chairman of the Trustees he had to do the best he could with the funds available for both of these objects and, clearly, the continuing claims of the living have influenced the trustees, who are the persons who actually have to deal with this, who have to refuse the applications, and they have considered that these claims outweigh the natural repugnance which they would have to disturbing a graveyard, particularly when the proposal is such that they should be reinterred properly, under all proper precautions, in a plot adjoining plots where similar reinterments have taken place in Dublin in the past. We have also discussed the question of consecration and deconsecration. Probably my friend will accept as a statement of the law—I can cite the authority if there is any doubt about it—that under the English ecclesiastical law and what would have been the Irish ecclesiastical law prior to the disestablishment of the Church of Ireland in 1869, no consecrated ground could be built on without the authority of an Act of Parliament irrespective of whether it be a graveyard or affected by the Disused Burial Grounds Act or any other matter. That is a matter of what is referred to as ecclesiastical law and ecclesiastical law in England is the law of the Established Church of England enforceable by the ecclesiastical courts and, if necessary, with the aid of the civil courts. There is a body of ecclesiastical law which would be enforced by the civil courts because it is part of the ecclesiastical jurisdiction and that situation undoubtedly extended to Ireland and was undoubtedly the case up to 1869. But, consecration within the meaning of the ecclesiastical law inevitably means consecration in accordance with the rites and ceremonies of the Established Church whose ecclesiastical law is going to be enforced by the Courts and it can have no concern whatever in respect of a churchyard which, if the churchyard itself was ever consecrated—a matter of some doubt—but, certainly the church apparently was—it was consecrated or dedicated, whichever would be the appropriate word, in accordance with the rites and ceremonies of the Reformed Church of France. No question of a faculty of deconsecration which, I understand, was obtained in the case of Saint Thomas’s from the Archbishop of Dublin and almost certainly was obtained in the Saint Bride’s Church in respect of Saint Bride’s Graveyard, could possibly arise here and it is interesting in that connection to observe that the Bull Alley Act which dealt with the Saint Bride’s Graveyard does not, and I respectfully submit very properly does not, make any reference whatsoever to deconsecration because, of course, there was no ecclesiastical law in Ireland dealing with such a matter in 1899. I am certain that what did happen was that since it was a Church of Ireland parish church the Archbishop of Dublin issued a faculty which enabled it to be deconsecrated but that was a private matter, no concern of the legislature; there was no ecclesiastical law involved because there was no Established Church of Ireland at the time. The whole of the Saint Bridget’s Churchyard is dealt with in one section—section 7—of the Act and it is dealt with in a very short way and nothing like as elaborately as we have hoped to deal with it in this Act should it proceed. Therefore, I submit that as far as the law is concerned no question of the consecration or non-consecration of this churchyard arises at all and I think Mr. McWilliam probably agrees with that because he laid his greatest emphasis upon the fact that there was a sentiment in this country strongly opposed to using ground which had been consecrated by anybody for any purpose for any other purpose than that for which it was originally dedicated but that seems to ignore certain facts because if Mr. McWilliam is talking about the sanctity of consecrated ground then it means it should not be used for anything other than its consecrated purpose and the Public Open Spaces Act, 1906 would be wrong and repugnant to the conscience of the Irish people. Nobody has ever suggested that. If it is wrong to build a factory on a place it is equally wrong to have boys playing football on it, which they could do on a public open space. The whole of the history of the city of Dublin shows that we must daily walk over ground which was once consecrated and I suggest, gentlemen, that this great repugnance does not exist that is suggested by Mr. McWilliam and that if the bodies are disinterred and reinterred the purposes for which the ground was consecrated has become spent and however much many of us might regret it there is no real impediment to its being used for any purpose whatsoever which might be authorised by the Act of the sovereign legislature. I do not wish to labour these points. I think the issues have become manifestly clear in the course of the evidence and such remarks as have been made by counsel on both sides. I do not know whether the Committee would wish me to deal with the last paragraph of the Preamble which I notice my friend Mr. McWilliam sidestepped even more completely than he sidestepped the first five. In regard to the first five he was merely prepared to say that he did not dispute them. He said nothing at all about paragraph 7, that this cannot be achieved without the Act of the Oireachtas.

Mr. McWilliam: I perfectly agree about that. I never suggested it could be done without the Act of the Oireachtas.

Chairman: That was my understanding.

Mr. McWilliam: I thought I made that clear earlier on.

Mr. Parke: I must have missed that. I do not know whether members of the Committee would wish me to refer to the provisions relating to disused burial grounds. I think Senator O’Quigley actually asked me if I would deal with that. If I could give the references perhaps it would be agreeable?

Senator O’Quigley: Yes.

Mr. Parke: The relevant Act on which the whole thing depends is the Disused Burial Grounds Act, 1884 and it is rather surprisingly for such a very important Act a very short one. Section 2 says:

In this Act a “disused burial ground” shall mean a burial ground in respect of which an Order in Council has been made for the discontinuance of burials therein in pursuance of the provisions of the said recited Acts.

The other two sections do not particularly matter. That Act did not apply to Ireland but by the combined operation of the Public Open Spaces Act of 1887 and the amending Act of 1906 I think it is clear that the Act was extended so as to apply to Ireland and all the counsel who at one time or another— and they have been quite a number who have advised in this case—all came to the same conclusion—I do not propose to argue the point as I am sure Mr. McWilliam can see that is so, that the definition was extended so as to include a graveyard which had ceased to be used either by order in council or by any other means.

The 1884 Act amended the definition so that it read: “Any burial ground which is no longer used for interment.” I think there can be little doubt in this case that the burial ground has been no longer used for interments since the last interment was almost 100 years ago, but even if that be not right as this Act provides that the burials should cease it would become a disused burial ground and the same consequences would follow. I take it it is agreed that as a result of the operation of these Acts it is necessary for a private Act of Parliament to be passed to authorise the building of anything other than a church, chapel or extension. That is why it appears to me that the Bull Alley Improvement Act had to provide expressly that the property would pass freed and discharged of ecclesiastical trusts and other liabilities. That was statutory authority for the building of a number of the buildings which now stand on these sites and of which Mr. Wheeler who is obviously well acquainted with these matters says one cannot say what is standing on them now.

The sovereign Parliament of course can authorise the erection of any building once the graveyard has been disused. On the question of the Constitution I think that the point which I raised originally would be my primary argument, that this is not the property of any religious community because it is vested privately in trustees, in individuals who have certain trusts to carry out. They are all private persons not representing any religious community but even if it did bear on the matter —which I say it could not—the immediately preceding paragraph of that article of the Constitution, Article 44, section 2, paragraph 5 provides: “Every religious denomination shall have the right to manage its own affairs. …”

There was never any intention I submit on the part of the Constitution to deprive a religious body of the right to do what it liked with its own property. All the Constitution did was to say that property should not be taken from them or diverted to some other purpose against their will. I submit that Article 44 has no application because this is not the property of any religious denomination.

We have been severely criticised for what is considered as being a change of front in connection with the ESB application. I think the witnesses have probably explained that. I think it is manifest that what the ESB were proposing to do was to leave the graveyard and dig up just such bones as they happen to find under the transformer station and put them somewhere else and leave the trustees with the graveyard containing a transformer station. That would be desecration: it would be a wrong and improper thing to have done and I do not think that the trustees have to apologise for the attitude they took up then or that they should have any difficulty in reconciling that with the attitude they now take up. Of course they do not make any bones about this; the larger sum of money is a very considerable factor. For years the trustees have been reluctant to come before the court on these offers because they did not think they were justified. Eventually a sum of money so large was offered that it was, they felt, their duty to do so. I do not think the trustees need apologise for that, for saying “Yes, because we now hope to be able to do so much we will approve of this.”

We are also criticised for not making inquiries. I do not think that is a very serious criticism. We could have looked up a few names at random in the telephone directory which corresponded with those in the register of burials and suppose we had been lucky in our draw and found that the people we got in touch with were in favour of the proposal, would we be then entitled to say: “There are four people in favour of this. Go ahead”. I think the trustees took the proper course in applying to the court and they got a direction regarding the advertisement. Mr. Le Clerc did suggest a few people but he obviously could only touch a few sources and could not possibly comprehend the whole thing. The trustees could have done no better.

Finally, there is the question of Mr. Justice Kenny’s judgment. I could hardly disagree that this Committee is the legislature and the legislature is not bound to follow the order of the court though I do accept that they would pay respectful attention to a judge of the High Court who had dealt with the administration of this charity and would for instance pay attention to the fact that in the actual order his Lordship said that it is expedient, that it is for the benefit of the said charity that the said offer be accepted. That is actually written into the order of the 5th October. I agree of course that I am now appearing before the Legislature who make the laws and that the observations of a judge while I have no doubt they would pay attention to them are not conclusive any more than the observations of the judge in actually pronouncing judgment. I regret to say I have not got a certified copy of the judgment but if it would be of assistance to the committee it has been bespoken if the committee wish to read the words of the judge. I shall say no more but very respectfully I want to suggest that the committee are entitled to look upon the judge as representative of the thinking people of Ireland. It is a High Court judge who takes that view and I do not think one is entitled to say that no reasonable, sensible man in the country will support it. If the learned judge took that view I think the committee are entitled to consider him a reasonable man.

In the disorderly presentation of the case I may have omitted certain documents one of them being the Le Fanu affidavit and another the appointment of the trustees who are the promoters. If I have failed to put in any of these documents my agent will of course make certain that they are before you. I trust I have not omitted any but I may have done so.

Senator O’Quigley: Have you the originals of the High Court Order and the 1917 scheme? What we have here is a copy made out by the Commissioners of Charitable Donations and Bequests?

Mr. Parke: I have only got copies myself.

Chairman: The original was probably destroyed in the Four Courts.

Mr. Parke: The 1902 Order should be in existence because there was exhibited in the affidavit an official copy and an official copy of the 1917 Order was also exhibited, so that must be somewhere. I trust my agent will be able to locate these documents. I do not wish to repeat any part of my argument and if there is any other point on which I may be able to assist the Committee I shall be only too glad if my attention is drawn to it.

Chairman: I have just two points. In relation to the beginning of Paragraph 5 of the Preamble, “Whereas it is expedient that the said cemetery be closed …”, the trustees handed over the cemetery on a caretaker’s agreement to Jacob’s. The power of an Order in Council is now vested in the Government under Statutory Order. Am I to take it the trustees did not seek any order to close the cemetery?

Mr. Parke: No, it was not done.

Chairman: It would have been the more natural thing to do when Jacob’s were turning this into an open space.

Mr. Parke: That is possibly so but apparently no such course was taken.

Mr. McWilliam: This cemetery was expressly excluded and no Order in Council could be made.

Mr. Parke: I do not think my friend is right.

Chairman: All I wish to establish is that no special order was made.

Mr. Parke: Section 166 of the Public Health (Ireland) Act, 1878 governs this matter and though a general order would not affect them, undoubtedly the Board as it then was, had power to take a special order, if they so desired. It only meant they had to do so expressly. Such an order could have been sought but it was not.

Chairman: Nowhere in this Bill or indeed on a careful reading of the Bull Alley Bill is there mention of a mandatory provision on the trustees to ensure there would be continuing care of the new resting place.

Mr. Parke: That is so.

Chairman: I would have thought that would have been a normal thing— at least to assure it would have been put into the Bill for the purpose of trying to influence us. Jacobs pay all the costs up to the time the remains are placed in Mount Jerome Cemetery but there is nothing in this Bill to require that the trustees would maintain the plot in a proper manner. While nothing is enshrined in the Bill in regard to maintaining the plot, is it clear that the trustees are entitled as of discretion to utilise the income of the fund for that perpetual care?

Mr. Parke: The way in which the matter was approached was that under the scheme the care of the cemetery is vested in the trustees and they have a discretionary power of maintenance, not an obligatory one. If the Bill were passed, one of the immediate effects would be that the cemetery would be divested from them and, secondly, their funds would have to be readministered. A scheme would have to be set up. It was thought, perhaps mistakenly, that it was inevitable this matter would have to be dealt with and it was perhaps more appropriately dealt with by the Court in fixing a scheme because the property of the trustees would be different in the sense that they would have lost the graveyard but that there would be a plot containing these remains and it would be necessary to amend the scheme to provide that the trustees’ funds would be applied to the maintenance of the substitute plot. If the trustees’ advisers were mistaken in that and if the Bill were to proceed further, the trustees would be satisfied.

Chairman: I was surprised the case was not made to us that this would ensure in eternity that the remains would be reverently cared for.

Mr. Parke: It was thought it would be a matter for the Court administering the Trust Fund. It would be a matter entirely where the trustees would bow to any recommendation of the committee. We confined our case to a narrow sphere.

Chairman: The committee would be entitled, with the promoters’ consent, to request that a subsection be added to section 3 to the effect that the promoters would ask the Court to add such a provision to the scheme.

Mr. Parke: Certainly, without any question. Such a proposition would, of course, be wholly acceptable to the trustees.

Senator Nash: Would you agree that the trustees are trustees for a religious community?

Mr. Parke: No, with respect, simply for poor persons who happen to be of a particular religion and descent. No community now exists. It is more than 100 years since any community, either non-conforming or conforming, existed. They have disappeared. The trustees are for a class of beneficiary of Protestant Huguenot descent. There is no such separate community.

Senator Nash: A section of a religious community, could we say—a section of Protestants, being a section descended from the Huguenots?

Mr. Parke: Yes, but it would be a very difficult section to define because it would embrace all disciplines in what are roughly described as Protestants of all kinds. It would be rather difficult to express it because it would embrace such an amorphous class. It could embrace Quakers, for instance. The class is too vague.

Chairman: Senator Sheldon and I were in doubt as to whether we agree about what it meant.

Senator Sheldon: It varies in different parts of the country.

Senator Nash: Is there any risk of hurting religious susceptibilities if this ground is to be deconsecrated?

Mr. Parke: It is a difficult problem. It is difficult to see how the deconsecration would take place. It has been more than a century—1817 was the last time a service was held in the non-conforming groups and this was a nonconformist cemetery. I do not know how deconsecration would take place. It might be possible that representations would be made to the French Reformed Church to send over some Minister to do it. I do not know how it would be done.

Senator Nash: Is there a branch of the French Reformed Church still in existence in France?

Mr. Parke: They are derived from the same French Reformed Church as the Huguenots who came to Ireland were. The difficulty is there is no Minister of that non-conforming Huguenot community in Ireland today because there is no such community here.

Senator Nash: So their susceptibilities as such would not be hurt.

Mr. Parke: I know people like the petitioner disapprove strongly of anything being done with consecrated ground. I can forsee, if the Bill proceeds, my friend might have some good suggestion to offer. If he has some suggestion to offer I would be happy to look at it.

Senator Nash: If the descendants are practically all members of the Church of Ireland would it be within the power of the Protestant Archbishop of Dublin to give the faculty for deconsecration?

Mr. Parke: That matter has been inquired into. It is not within the jurisdiction of his Diocese. This church, in fact, came into existence because its members did not wish to conform to the Church of Ireland. I do not mean the Archbishop would hold it against them in any way but it was manifestly a church which, when consecrated, was consecrated under an entirely different discipline. Therefore, the Archbishop of Dublin would not be empowered to give the faculty for deconsecration. The Archbishop of Dublin would not feel it proper for him to give the faculties for some other religious community which in a general sense did not come within the ambit of the Archbishop.

Senator Nash: Do the cemetery authorities in Mount Jerome maintain all the graves or must each family maintain its own?

Mr. Parke: As far as I know each family maintains its own unless there is a special trust with regard to it. The cemetery authorities will not maintain it unless a scheme is set up whereby a person says he will pay so much if they will agree to maintain it in perpetuity. In that case a capital payment is made.

Senator Nash: One capital payment is made to the cemetery authorities in any particular case?

Mr. Parke: Yes.

Senator O’Quigley: You were talking earlier about the provisions of the Constitution. I agree that the provisions of the Constitution relate to existing religious communities with regard to the distribution of their property. I think you made a point now that there is no such religious community as the Huguenots in existence in Ireland and that therefore, whatever rights they had would devolve on, and are vested in, the State. If the community has ceased to exist then in whom is the authority or power to look after the interests of that body which no longer has a corporate existence?

Mr. Parke: That is an interesting point and it is not one which had occurred to me. It would seem that the property in this graveyard would belong to the trustees on behalf of the community which has ceased to exist. It might be said it would have been so vested in the State had it not been that the Court assumed jurisdiction in 1917 and directed that the property be vested in the trustees and that all future dealings with it would be subject to the order of the Court.

Senator O’Quigley: If a local authority, in the ordinary course of events, own a graveyard certain people might like to bury their families in a particular plot in it. If that family dies out who has the right with respect to it or who has the obligation in relation to it? Is it the owner, the cemetery authorities or is it some other body in whom this power is vested?

Mr. Parke: If it could once be shown that there was a perpetual charity, then the Attorney General as guardian of charities would, I imagine, be entitled to exercise powers in respect of it. He would be able to exercise powers with regard to it because of his power of looking after and distributing charitable funds. It might be he would be the person entitled to act as guardian of those rights.

Senator O’Quigley: The trustees simply had the legal right to this property. They have no rights and liabilities in relation to the different plots. Therefore, it would be the State who would have power with regard to these.

Mr. Parke: I am not forgetting that this Committee are in no way bound to do anything simply on the grounds of the views expressed by the trustees although they may give attention to them. The State, represented by the Oireachtas, has the final disposing power with regard to this matter.

Senator O’Quigley: When you were talking about this large sum of £20,000, it occurred to me that there is some statute law relating to the disposal of corpses after death. Is there some regulation for the use of corpses for scientific purposes and so on?

Mr. Parke: There is the Anatomy Act. There is no property in a dead body. I think I would be right in saying nobody has any property in a dead body. The State has power to regulate the improper disposal of bodies. I confess I would be slow to say what are the provisions.

Senator O’Quigley: In fact, is it not the sentiment of the vast majority of the population to have their own corpses after death disposed of in a particular way?

Mr. Parke: That is true. Most people make arrangements for the final disposition of their own corpses after death.

Senator O’Quigley: Would you agree that this is the general sentiment? Most people, whether they make a will or not, expect that wherever they are buried they will not be removed. Unless they give any special directions for burial, is it not a matter for the executor where the person is buried when he arranges interment?

Mr. Parke: I think it is correct to say that most people expect that once they have been buried it is unlikely, or highly improbable, that they will ever be disturbed though human nature is such that we all know that after the passage of a sufficient length of time many graveyards do get disturbed. In the cities of Dublin, London and other places one is always discovering burial places when excavations are made in respect of buildings. I do not think even the most sanguine of us think that our bones will rest undisturbed for all eternity. All we can say is that we hope they will remain undisturbed for a very considerable number of years. In this day and age with all sorts of unforeseeable events, who can say in 500 years hence whether any of the cemeteries we know will be still there? I think all we can hope for is that they will be there for a long time but the continual discovery of old burial grounds and old cemeteries in the course of erection of modern cities shows that it is a hope which is frequently disappointed.

Senator O’Quigley: It is another thing to ask Parliament to approve it.

Mr. Parke: Parliament has done it in certain circumstances where it considered it expedient. It has been done on more than one occasion but it is for the Committee to decide whether or not it is expedient. If one had the opportunity of investigating all the Private Acts of Parliament, it might be discovered in the Railway Acts and other things that many old graveyards may have been taken over. I have done my best but the old private statutes make it very difficult. I have found numerous examples in England where old railway companies, in the course of their enterprise, got powers to acquire graveyards.

Senator O’Quigley: I think this volume here represents only two years of Private Acts.

Mr. Parke: There is no proper index and it is very difficult to trace. In drafting this, with the assistance of Mr. McCracken, I did find a fairly useful English precedent in respect of two railway Acts of recent times and I made use of them to some extent—one in respect of the city of London and one, I think, in respect of the city of Manchester.

Are there any other points on which I can assist the Committee?

Senator O’Quigley: That is all.

Chairman: Gentlemen, thank you very much indeed for the assistance you have given us. We will consider the matter as soon as the note of the evidence is available to us and the Clerk to the Committee will indicate to the respective agents the Committee’s decision in respect of that first stage and then, of course, it follows automatically whether we have the pleasure of seeing you again or not.

The Committee adjourned at 9.55 p.m.