§ The House went into Committee on this Bill.
§ Clause 56, respecting charities, being proposed,
§ Lord John Russell
said, that it was a provision for placing certain trustees, to be appointed by the Town Councils, in the situation of the present Corporations, and not for giving to them any greater power than those Corporations now stood possessed of. Whether under the present Corporations, or the Corporations to be created by this Bill, there was a sufficient control over the funds of these charities or not—laying aside the whole question of an intentional perversion of the charities to private or party purposes—it was a fact that the trustees appointed by those who had the management of the funds did often, either from carelessness or some other cause, entertain such a mistaken sense of their duty that the funds were not applied to the purposes for which they were originally given, or to purposes to which they might be devoted with very beneficial effect. It was, therefore, the opinion of himself and his Colleagues, that some controlling and superintending power should exist for the purpose of causing the funds to be rightly and directly applied. It was not, however, expedient that any provision to that effect should be 233 introduced into the present Clause, which went simply to the extent of giving the new corporations the power of appointing trustees for the management of the funds.
§ Mr. Hardy
wished to know whether, under the term "Charitable Funds" was comprehended the patronage of livings? If so, the disposition of livings in the Church of England might fall into the hands of those who were not connected with the Establishment. There was in the hands of the Corporation of Leeds certain patronage of that kind, and he wished to know how it would be affected?
§ Mr. Hughes Hughes
repeated the same question, and said, that a considerable sum of money had been left to the Corporation of Oxford for the establishment of forty lecturers in that city, resident clergymen of Oxford. He did not know whether the Clause was intended to apply to that property?
§ The Attorney-General
said, the Clause applied exclusively to charities, and did not embrace church patronage.
§ Mr. Hughes Hughes
complained that there was no Clause in the Bill which provided for such cases as he had adverted to. It was very true that it was now proposed to make those who were trustees of charities personally responsible for any breaches of trust with which they might be chargeable, but that was rendered all but nugatory by the fact that no qualification was required from the members of the Council. If the provision were adopted which he should propose, some of the trustees at all events belonging to a liberal profession would afford some guarantee for a due performance of their charitable functions. He had a list of no fewer than twenty-two charities of a very important character belonging to the city which he had the honour to represent, and which placed considerable political power in the hands of those by whom they were dispensed. Some of them were given specifically to be enjoyed by members of the Church of England, and as the Recorder and Magistracy were much more likely to belong to the Establishment than the members of the Council, he was anxious that the former should at least have a concurrent direction in the application of the charity estates. He did not ask that the Recorder and Magistrates should be the sole trustees, but merely that they should be associated with the fifteen chosen of the Council; and he did not see any possible objection that could be entertained to such a proposition. It would, 234 in his opinion, secure the public generally, and shield from all suspicion of abuse the exercise of that power which naturally arose through the charitable funds. The hon. Gentleman concluded by moving that "there be added to the number of charitable trustees of every borough the Recorder for the time being (if any) of such borough, and all Justices of the Peace acting in and for the same."
In answer to a question put by Mr. Estcourt,
§ Lord John Russell
said, that the Clause had no reference whatever to Ecclesiastical trusts as connected with Corporations. But that was, no doubt, a most important subject, and there was a notice on the books which would bring it regularly under the attention of the Committee in a future stage of the Bill.
§ Mr. Estcourt
asked what would then become of Church patronage which was vested in Corporations, seeing that the Clause contained no provision in that respect?
§ Lord John Russell
said, that under the operation of the Bill the Church patronage would go with all the other powers and possessions of Corporations, and the new Corporations would have the same power of dealing with it that the present Corporations had. The hon. Gentleman was well aware that since the Repeal of the Test and Corporation Acts, a Corporation at the present moment might be composed entirely of Dissenters, and be as competent to dispose of Church patronage as a Corporation consisting entirely of members of the National Establishment.
§ Mr. Harvey
hoped that hon. Members would lay aside all party feeling and prejudice and come to the discussion of this most important question without any tinge of political or factious animosity. They were all agreed on the principle, and could only be anxious as to the best method of carrying it into efficient practical operation. He begged leave to put a case: in some small boroughs where there might be only fifteen Councillors, unless there was some Clause to provide that the electors should not be the elected, there would be an appointment without an election. The trustees and the Council would be one and the same body. He did think, whether the trustees were rich or poor, peers or paupers, without some controlling and unconnected power over the whole, they would only have a perpetuation of the abuses which were connected with the 235 present system. The trustees might be persons of the greatest wealth, high station, local influence, and indisputable moral pretension; hut if they were not placed under the control of some impartial and responsible power, the charitable trusts never could be properly, beneficially, and satisfactorily executed.
§ Lord John Russell
said, he had already stated, in his opening address, that the effect of the Clause would be merely to place the trustees appointed by the Council in the place of the present Corporations. They would have no greater powers than those now vested in the old Corporations; even supposing the case, therefore, that the Council should all elect themselves, they would stand exactly in the same situation with the Corporations which now exercised the power of the trustees. It was another question, into which he did not wish at present to enter, whether they should disqualify members of the Council from serving as trustees,—the number being so large as fifteen, he thought that principle might be attended with inconvenience, particularly in small boroughs. But what he had stated to the Committee at the commencement was, that in his opinion, whether under the present Corporations or under those about to be created by this Bill, there was no sufficient control over the funds of charities; and that, even laying aside the whole of the question of intentional perversions of the charitable funds, it did often happen that the trustees who had the management of them, either through carelessness or some other cause, took so mistaken a view of their duty, that the original purposes of the charity were not accomplished, and those for whose benefit such foundations were instituted received no advantage whatever. He had, therefore, stated it as his opinion, and that of his Colleagues, that some controlling and superintending power should exist, by which they might be enabled to check and regulate the application of those funds in case the local bodies who had the management of them misdirected or perverted them. The question in what manner that object could best be attained had recently been brought under the attention of Parliament in that House by the hon. Member for Southwark, and in another place by a noble and learned Friend of his (Lord Brougham), chiefly in connexion with the subject of education. That noble and learned Lord had since informed him that it was his intention shortly to introduce a 236 Bill for the purpose of establishing a central Board of Commissioners, which should have the control and supervision of charities, as far as education was concerned, with certain powers of directing the trustees to apply the funds in a certain manner, in conformity to the original intention. He did not think that it would be advisable to introduce any clause to that effect in the present Bill; but he was of opinion that before long Parliament would find it necessary to take up the subject. For his own part, he should be ready, cither if any other hon. Member undertook it, to second and support any measure which he thought might be effectual for the purpose, or, if no measure was introduced into Parliament, as a member of the Government, he should be prepared to consider what course should be adopted for the purpose of securing a general, an efficient, and an intelligible control of the charitable funds of this country. At present he could only say, that he was inclined to consider the measure which some time ago had been introduced by the right hon. Baronet (Sir Robert Peel) with respect to a certain class of chartered schools in Ireland, as presenting a very fair model of a measure for that purpose, in which he (Lord John Russell) could at once fully and entirely coincide.
§ Sir Robert Peel
thought no one could for a moment contest the truth and importance of the observation made by the hon. Member for Southwark, that they should all, on such a question as the present, whatever might be their divergence of political opinion, endeavour to consider this question on its own merits without any party bias, and solely with the view of making the clause as satisfactory in its operation as possible. With that object in view, and there being no difference of principle between them, they had first to secure the application of those charities as nearly as possible to the original intentions of their foundation, and in the next place to prevent the abuse of them for any Parliamentary or electioneering purposes. The only question was by what mode those objects could be most efficiently carried into practical effect. He agreed with the hon. Member for Southwark, that wealth, property, and station in society were not necessary guarantees of the due performance of a charitable trust. The truth was, that persons were apt to undertake the duty of trustees without at all considering the obligations which that imposed on 237 them; and in proportion to the high station which they occupied in society, having more important mutters to engross their time, it was not likely that they would give till that detailed and continuous attention to the trust which, perhaps, its interest and importance demanded. But while he agreed with the hon. Member so far, he must be allowed to go a step still further. He confessed he did not think, on the other hand, that any system of popular election or control would of itself supply a sufficient guarantee that the charity trusts would in all instances be properly discharged. He did not by any means wish to undervalue the usefulness of that principle. He believed that popular control would induce the Council to administer properly the borough funds, to enforce a system of economical expenditure, and adopt proper measures with respect to paving, lighting, and other local matters in which the interests of the borough might be internally concerned. But with respect to charities, he did not think that popular control would be a sufficient check to the abuses which were complained of under the present system. Party feeling would no doubt enter into the constitution of the Council, and where there were advantages to be distributed, and good things to be given away, they had a right to presume the possibility of abuse, and adopt the best means of preventing it. The whole of this country was divided in political feeling, and those differences of opinion and prejudices existed to as great, if not to a much greater, extent in small boroughs as compared with large towns. Indeed, he very much doubted whether the severest contests might not, in the history of elections, be traced to local partialities for particular families rather than to any broad and distinctive differences of opinion on great political questions. The predominant party must, according to all analogies of the Constitution, be presumed to be a body capable of committing an abuse, and therefore they ought to take some security that the perversions which had occurred under the old system should not be perpetuated under the new. Their first object should be to provide for the due fulfilment of the original trust, and then to take care that no perversion took place. He greatly regretted that the House was called upon at present to make any arrangement on this subject; for he was most anxious that the fulfilment of these trusts as originally intended, should be secured, and the perversion of them to any but the specified 238 or proper purposes be prevented. He was afraid, however, that if they were under the complete control of the corporate bodies, the application of these funds would be guided by the political opinions and party and private prejudices which must inevitably prevail in such bodies as those contemplated. The hon. Gentleman the Member for Southwark proposed, and the noble Lord appeared to assent to his proposition, that there should be instituted some Central and general Commission, which might exercise a superintending authority over all these Charities. He did not deny that in some cases a superintending Commission might do some good; but he very much doubted whether the appointment of one to watch over the distribution of the existing charities would be attended with the advantages which the noble Lord seemed to anticipate. These charities were generally granted by individuals, to be applied to some specified purpose, for local and individual benefit. Now, the management of such funds must naturally rest with those who are resident at the place in which they were to be distributed. A superintending board might very well direct the mode in which the accounts of charitable bodies should be kept, or originate the appointment of trustees; but as these charities were strictly local, as different objects were contemplated by the establishment of each of them, as they were held in trust by different persons and different bodies of per-sons, the immediate direction and superintendence of them must be local. And no board sitting in London could determine whether they were applied to the proper personal purposes which they were originally meant to answer. All the knowledge which the details connected with such funds called for, required local and individual management, and imposed upon the Legislature, the necessity of leaving them to the management of local authorities, to be constituted in some way or other. The noble Lord had alluded to a Bill which he had brought in with respect to endowed schools in Ireland, and argued that because he had appointed, under that Bill, a Central Board in Dublin, he was favourable to the formation of a similar body to watch over the distribution of the funds of the various charities throughout the country. The cases, however, were very different. These endowed schools were, in Ireland, spread over the whole country, and it was very easy for a board sitting in Dublin to exercise a superintendence over schools all 239 established on the same royal foundation, to direct the amount of salary to be paid to the masters of them, and to watch over their general management; but it did not follow that a board appointed in Dublin to direct the distributions of the funds of the numerous charities in Ireland could attempt to answer the object of their establishment with any prospect of success. He was very much afraid that they were proceeding to legislate with respect to these charities without sufficient information. He had hoped (and he would certainly suggest it to the noble Lord) that the noble Lord would, before they took any step in the settlement of this question, have appointed a Select Committee for the purpose of making a report to the House on the nature of the charities connected with Corporations. He thought that some scheme must be devised by which a provisional arrangement must be entered into, before the Clauses which regard to charities supposed to be connected with the Corporations, could be carried into operation. He was quite satisfied that the charities of the old Corporations, which were left under bequests, or Acts of Parliament, could not be transferred to the new bodies without making some intermediate provision. The nature of those trusts varied exceedingly; for instance, some of them were left for the benefit of the freemen, who were those appointed under a totally different system to be in future the recipients of these funds. The freemen were, by this Bill, about to be extinguished; in what manner were these funds, left exclusively for their advantage, to be in future applied? By the great Revolution which was about to be effected in Corporations the new trustees would find it exceedingly difficult to administer them according to the original intention of the donors. This dangerous question would also be raised by it, "What is corporate, and what is charitable property;" Now he thought it would comparatively be a very easy matter for nine or eleven gentlemen first to give a general view of the different trusts, to distinguish between those which could be considered only corporate property and those which were detached from the Corporation, and determine by what scheme they might be applied, as strictly as possible, to their original purposes. He would, at all events, recommend the noble Lord to erase that Clause by which every person is prevented from being a charitable trustee, under the new 240 Bill, who is not a burgess. There were many respectable Clergymen and Gentlemen who were perfectly well qualified to become trustees to charities but who had no desire to mix in local politics or differences, and who would, therefore, be unwilling to become enrolled as burgesses. He would not hesitate to go the length of saying that the man who had no direct interest either in electioneering or Municipal purposes, would be far the most likely man to use his exertions towards the fair and honest application of charitable funds. He begged, in conclusion, to impress on the mind of the noble Lord opposite, that such a transfer of trust as this Bill effected, should not be made without due consideration and on the fullest information. There was in one city so large a sum as 18,000l. a year disbursed annually under charitable trusts. How did they mean to deal with such property? which must prove a blessing or a curse, according as it was well or ill applied. It would, he thought, be most desirable, if the noble Lord should not consent to the postponement of the question of charitable trusts until the House was in possession of the knowledge which would enable them to legislate properly on the subject, that he should agree to leave the further consideration of this and three or four other Clauses which referred to charities, until the other provisions of the measure were disposed of.
§ Lord John Russell
quite agreed with the right hon. Gentleman that those persons who were best qualified to be trustees of charities would not perhaps wish to become burgesses. He would, therefore, consent to strike out that part which required the trustee of any charity to be a burgess. With respect to the appointment of a Commission to which the right hon. Gentleman alluded, if he thought that appointment could lead to any practical result, he should not hesitate to accede to the Motion; but he did not at present see that it would be attended with any such effect. If the right hon. Baronet wished to have the Clause postponed till Monday, with a view to make any favourable alteration in it, he would not object to its being postponed.
§ Sir Robert Peel
could not hold out any such hope to the noble Lord. He would however say one word more with respect to a Commission. He thought that much more good might be effected by the appointment of some person attached to one of the offices of state, who would give constant reports to 241 Parliament of the mode in which the duties of those invested with charitable trusts were fulfilled, than by the establishment of any cumbrous Commission. Instead of dividing the Government of the country into a variety of Commissions it was his decided opinion that when any increase of its functions was rendered necessary for such an object as that of watching over the management of charitable uses, that some person should be attached to one of the Departments connected with some of the responsible Ministers of the Crown, by which course all the expense of a Commission would be saved, and the danger of having such practices carried on under the countenance of such a body as might escape the observation of Parliament, avoided. He would throw out, therefore, a suggestion, the adoption of which would save a ten-fold degree of expense, that a clerk should be added to those of the Treasury or Home Office, who should have the direction of these charitable funds, and should have part of his time employed in some other business if it should happen not to be wholly engaged by the duties imposed on him. He did hope, therefore, that the Government would give up the idea of appointing any Commission, but would see that the duties of such a body should be performed by some person in the office and under the control of some responsible Minister of the Crown.
§ Mr Hume
hoped, that the Clause would not be postponed. He was sure that a clerk would never be able to watch over the proceedings and control the management of the charitable trusts of the country. Although the proposition of a noble and learned Lord did not entirely meet the views which he had taken of the system of charities as regarded education throughout the country, yet he agreed with the substance of them. He was convinced that a general and superintending control over every charity in the kingdom, such as that contemplated, would be successful in guarding against abuse. Therefore, he hoped that instead of multiplying the number of persons engaged in the Departments of the Government, they would, where it was found necessary, appoint such a body as might be expected to watch with due care over the expenditure of thousands and millions of property invested in charitable trusts.
Sir Matthew White Ridley
moved the following Amendment:—"Provided also, and be it further enacted, that nothing in 242 this Act shall extend, or be construed to extend, to alter, abridge, or take away the right to any premises, hereditaments, land, or funds, which may now be the private property of any incorporated company in any borough, whose title to such property is independent of the existing Corporation of such borough, and which such company may hold under ancient charters, confirmed by Crown grants, long usage, testamentary bequest, or Parliamentary enactment, to and for the particular use and benefit of the members of such incorporated company."
§ Sir Robert Peel
wished to be understood as not having spoken of charities for the purposes of Education, when he adverted to the appointment of a Commission.
§ The Attorney-General
It was impossible that the Bill could be construed to affect in any way the species of property alluded to in the Amendment of the hon. Baronet (Sir M. Ridley). The different descriptions of property to which he had adverted, were under the control of certain bodies, or what might be termed separate Corporations. He hoped that the Clause would not be persisted in; for though it was impossible to deny that much greater difficulty existed in legislating on this subject, than if these charitable trusts had been of late invested, still he expected that under the proposed system, all the beneficent purposes for which they had been left would be fully answered.
thought the Clause admitted of much improvement and wished it postponed. He would only say in the hope, that the Clause might be postponed, that the proposed transfer of charitable trusts would be a perversion of the intentions of the original donors.
The Chancellor of the Exchequer
suggested whether the final consideration of the Clause should not be postponed until a period when they might come better prepared for the discussion upon it. The intention of the Bill was, that the liability of the present Corporations with respect to charitable trusts, should be continued in the new Corporations, and it was therefore fitting that they should have a choice in the trustees.
§ Mr. Cresset Pelham
had understood from the noble Lord, the Secretary of State for the Home Department, that the probability was that this Clause would be postponed with a view to referring the whole subject of charitable trusts to the inquiries of a Commission. He was very desirous that the question should be investigated by an 243 impartial and efficient tribunal; and recollecting that some years ago a Commission had sat for that purpose, he thought the labours of that Commission might be made the ground-work of a new Commission; and among other objects, to avert the danger of the hostile collision which might be apprehended in the transfer of authority from one body to another.
§ Mr. Hume
adverted to the manner in which, in Scotland, trustees for the administration of similar trusts were appointed. Of a body of twenty-one-trustees, the Council elected ten, and the burgesses eleven. This formed a very efficient board of control; and perhaps the same principle might be applicable in this country. He wished to throw out another suggestion. It was frequently the case that the burgesses were not sufficiently acquainted with the purpose for which charities had been instituted. The whole of the accounts ought to he open to general inspection, in order that it might be ascertained whether or not the legitimate object of the charity was carried into effect.
§ Mr. Harvey
observed that it might be desirable to postpone the consideration of the Clause, but that it was obvious that the Clause itself could not be altogether dispensed with. The old Corporations were about to be extinguished; and it was necessary to take care that the goods and chattels of the deceased should be properly disposed of. If the property in question were left unprotected, it would be like a wreck on the shore, and thousands would be scrambling to come in for a share of it. It was important, therefore, that the property should be administered by trustees; and the Clause had that object in view. The right hon. Member for Tamworth had misunderstood him in one point. He had never stated or contemplated that all the charitable funds in the country should be in the hands or under the control of a permanent board. All that he suggested was, that there should he a permanent board of supervision, to which the trustees of the different charities might, from time to time, be amenable. But it never, for a moment, occurred to him that the actual administration of all these charitable trusts— thousands in number, and local in their character—ought to be transferred from trustees on the spot, to a board in London. With respect to the Councils, in his opinion, neither should the members of them be altogether excluded from the trusts in question, nor, should those trusts 244 be exclusively composed of members of the Council. If from the trust all members of the Council were excluded, the consequence would be the creation of a formidable power in every town much greater than the Corporation. But he thought that a provision might he made, that where there were fifteen trustees, not more than seven or eight of them should be members of the Council.
§ Lord John Russell
deprecated further discussion of the Clause at the present moment, and more especially with reference to the Question of whether only a portion of the trustees should be composed of members of the Council.
§ Mr. Scarlett,
while he admitted, that in small towns it might be difficult to find persons, not members of the Council, who were competent to be trustees, thought that in large towns it would be highly expedient that the trustees should not be exclusively members of the Council. It was not his opinion that existing abuses would be much lessened by this Bill, which transferred power from an independent to a popular body, that had every motive to distribute their patronage for political purposes. It must be recollected, that although the burgesses themselves might not he in a condition to benefit from the mal-administration of these trusts, every burgess had many relations, some of whom might be in such a condition. If the Town Council, a popular body, had the whole administration of these charities, it was certain, if any reliance could be placed on experience, that they would be appropriated entirely to political purposes. Such could not be the object of either side of the House; and it was, therefore, exceedingly desirable that time should be given for the consideration of the subject. Otherwise, they would not he acting on the professed principle of the Bill; which was that the funds in question should be administered in a fair and honourable manner.
Various verbal Amendments were agreed to; and eventually the amended Clause was ordered to stand part of the Bill.
On Clause 62 (Council to become trustees of all acts, of which Corporations were, ex officio, sole trustees being read,
§ Sir Frederick Trench
said, that he wished to know from the noble Lord oppo- 245 site if it was his intention to propose any Clause to prevent Roman Catholics or other Dissenters from interfering with the patronage of the Established Church as connected with these Corporations. Under this Bill, Roman Catholics and Dissenters were eligible to be chosen on the Town Councils, and, unless some provision were introduced to guard against it, such would have the disposal of the Protestant Corporation patronage partly in their hands.
§ Lord John Russell
said, that he would refer the hon. Gentleman to the fact that the statute of Charles 2nd, which excluded Dissenters from Corporations, had been repealed.
§ Sir Frederick Trench
said, he did not mean any discourtesy to the noble Lord, but he must say, that he looked upon the noble Lord in no other light than as an instrument in the hands of those about him. He did not mean to say that the noble Lord himself had any designs hostile to the Established Church; but, seeing that he was only an instrument in the hands of those who had, he thought it behaved the House to see that the interests of the Protestant Church were not injured by this Bill. He considered that the noble Lord and those around him were utterly unable and incapable to carry on the Government of the country. The noble Lord was, in fact, in the hands of the great giant, who wielded him, as his victim, just as he pleased. The object of his question to the noble Lord was to ascertain if the interests of the Protestant Church and its patronage were to be preserved in the hands of men belonging to that Church? To that question the noble Lord thought proper to reply with a sneer, but he could tell the noble Lord that he should always do his duty in that House honestly, conscientiously and fearlessly, whatever view the noble Lord might think fit to take of his conduct.
§ Lord John Russell
did not think that he had said anything to subject him to the imputation which the hon, Gentleman had cast upon his observations. What he said, had immediate reference to the subject before the House. The hon. Member wished to know if Ecclesiastical patronage was to be exercised by members of the Established Church; and what he (Lord John Russell) said in reply was, that the Act of Charles 2nd, which excluded Dissenters from Corporations, had been repealed by Parliament without any restriction, and that it certainly was not his 246 intention to make any new provision to reenact the Test Act.
§ Mr. Law
said, that the effect of the present Bill would be to nullify the 15th section of the Emancipation Act, prohibiting Catholics from at all interposing with any appointments connected with the Established Church. He did not mean to say that he considered the danger to the Church greater from the Roman Catholics dispensing its patronage then other Dissenters: but he disapproved of any Dissenters having any influence over the patronage of the Church. It was true that Dissenters had been admitted to Corporations, and had thereby been concerned in the distribution of Church patronage; but it should be recollected that they were now taking property from the hands of the trustees, in whom it had been vested by the original donors, and were about to place it in other hands contrary to their intention. He was not desirous of establishing any test to ascertain the religious creed of Councillors, but some provision should be made to prevent Dissenters from interfering with the appointments of the Established Church, allowing them to do which would be as unjust as it would be to enable Churchmen to interfere in the appointments of Dissenters.
said, that the hon. and learned Gentleman, when he talked of disappointing the will of the original donors, forgot how many souls were at this moment suffering in purgatory for want of the masses they gave their property to obtain. As the hon. and learned Gentleman had been pathetic upon the disappointment of the original donors, lie would in his turn be pathetic, and appeal to him on behalf of the suffering souls who had not had the masses celebrated for them, which much of this property was given for. At all events he could assure the hon. and learned Gentleman that his fears were vain; for by the Irish Penal-laws, passed by a gross breach of the faith of Treaties, the Roman Catholics of Ireland were deprived of all power, directly or indirectly, to present, either individually or as Corporators, to any living, and these statutes had never been repealed.
Nor in England; and the Duke of Norfolk could not now present to any advowson, any more than before the passing of the Emancipation Act. The 15th section of that Act kept the penal statutes in full force, and there was nothing 247 in this Bill to repeal them. He was, however, quite ready to agree to any Clause preventing the interference of the Roman Catholic Councillors, under a penalty, with any appointment relative to the Established Church. He did not exercise power of this kind, as he might, in his own religion, for he considered the subject too delicate for him to meddle with; and à fortiori, he did not wish to meddle with the ecclesiastical appointments of a religion with which he was unconnected.
§ Mr. Law
said that his point was, that under this Bill there would be no means of ascertaining what Councillors were Dissenters. He wanted those means, in order that Dissenters might be prevented, should they be so disposed, from improperly intermeddling with Church property. As to the term of "the original donors," he applied the term in a larger sense. He used it in reference to the numberless trusts confided to Corporations to be affected by the Bill.
would protest against the introduction into this Bill of any test to make a distinction between Dissenters and the members of the Established Church. He would repeat, however, that he should have no objection to impose a penalty on Roman Catholics acting improperly in regard to Church livings.
The Chancellor of the Exchequer
said, that the existing state of the law had been lost sight of. Corporations were already open to Dissenters, and in many there was a preponderance of Dissenting members. Besides, there was no statute against a Dissenter possessing and disposing of the advowson of a living. Suppose that he (the Chancellor of the Exchequer) became a Dissenter, still that circumstance would not divest him of any control he might have in the usual way over Church property. If the principle of excluding Dissenters from controlling the advowsons invested in Corporations was good for anything, it was also so far good as to exclude Dissenters from exercising any power over their private property in advowsous. The late Mr. Wm. Smith was a Dissenter, yet who disputed his right to dispose of advowsons? Now, hon. Gentlemen, ought to go the whole length of the principle, or not argue upon it at all. He confessed he would rather see all Church patronage in the hands of members of the Established Church; but that was not the question under consideration.
§ Mr. Williams Wynn
abstractedly agreed 248 in the proposition of the honourable and learned Member for Dublin, as to the original destination of this property; yet, after a practice of 300 years had violated the theory, he thought it would be a gross violation of the rights of private property, strictly to enforce the abstract proposition. He did not wish to dispense with any check that was provided by law on the Dissenters (including of course Roman Catholics) from interfering with the property of the Establishment. By the Act which repealed the Test and Corporation Acts, a declaration was required to be made by all persons, on taking any corporate office, that they would not do any thing that was prejudicial to the established religion; but the Bill now before the Committee would dispense with that declaration, and enable Dissenters to assume corporate offices without any check whatever. He on a former occasion expressed his disapprobation of the Oath of Abjuration, because he thought it inoperative; but he at the same time approved of the Oath of Allegiance. Upon the same principle he now disapproved of any religious test; but he thought that before any person belonging to these corporations exercised any power in dispensing with Church patronage, some declaration ought to be made similar to that contained in the Act repealing the Test and Corporation Acts.
§ Lord John Russell
after what had fallen from the Right Honourable Gentleman, wished to state what he considered the present state of the law to be, and what would be the effect of this Bill. The Act repealing the Test and Corporation Acts replaced the ancient securities by a declaration to be taken by every person assuming an office either under the Crown or in a Corporation. But that declaration was not to be a test applied to the conscience; and he was of opinion that after this Bill should be passed, the same declaration would be required from persons taking office as was now required by the law.
§ Lord Sandon
thought that as the Clause now stood, it would be a practical invasion of the rights of the Church, inasmuch as the power of presentation would be given to members of Corporations without any restriction, or any mode of ascertaining their religious principles.
§ Mr. Wilks
was delighted to hear the observations made by the noble Lord, the Secretary for the Home Department. He begged to assure the noble Lord, the Member for Liverpool (Lord Sandon), that 249 there was nothing in the law of England to prevent Protestant Dissenters from being proprietors of every advowson in England— nay, nor Roman Catholics. [Mr. O'Connell: Roman Catholics are prevented, but Jews are not.] What, then, would be the consequence of any such alteration as should preclude Dissenters, in any of these boroughs, from acting with the rest of the members of the Common Council in the dispensing of Church property? It would be to raise up that spirit which, for half a century, all parties had been endeavouring to destroy. If Parliament were to make any such distinction, it would tend very much indeed to defeat that general harmony which it was the object of the Legislature to effect by repealing the Test and Corporation Acts; and would create anew the tyranny of the members of the Church, and cherish afresh those irritations and that spiritual tyranny, arising from dissent, which it was the hope of all would be done away with by the repeal of the Test and Corporation Acts.
§ Mr. Twiss
suggested, that each Dissenting member of a corporation should make the declaration prescribed by the Test and Corporation Acts; and that a Clause should be introduced to that effect. Another point he would suggest was, that corporations of towns ought not to be invested with Church patronage under any circumstances, and still less so when, as would be the case under this Bill, the members of the Corporations would be elected by large bodies of the lower classes, subject to many passions and prejudices from the influence of which a more select and better educated class of electors would be exempt. A tyranny of this kind would be much worse than that of which the hon. Member (Mr. Wilks) had spoken. He presumed that if a separate measure had been introduced to deprive Corporations of Church patronage, it would have received the support of hon. Gentlemen opposite, but he did not see why they should not support a similar principle in a Clause in this Bill. There were in Liverpool eighteen churches to which the Corporation of that town had the presentation. Would it be fit that Protestant clergymen should be going about to solicit the patronage of the ninety Town Councillors who were appointed by a body ten times as numerous?
§ Lord John Russell
appealed to the Committee, whether it was proper to protract this discussion, inasmuch as no amendment had been proposed. Me had already 250 said, that a declaration must be taken by the members of the Corporation; it was not necessary, therefore, to introduce any clause to that effect. The question which the hon. and learned Gentleman had raised, as to whether the Corporation ought or not to exercise the power of appointing to Church livings at all, was one on which he would not give an opinion. If the question should be brought forward, he admitted it would be worthy of consideration; but this was not the time to discuss it. He therefore hoped the Committee would at once pass the Clause.
§ Sir Frederick Trench
said, that it was his intention to propose an amendment, in a much as he thought that this was calculated indirectly to do that which no person would attempt to do openly and directly. He believed that the effect of the Clause would be, whatever might be the intention of those who proposed it, to destroy the Established Church. If he had on a former occasion expressed himself warmly, he begged to assure the Committee he had done so sincerely; and his conscientious belief was, that the noble Lord opposite (Lord John Russell) and many of his Colleagues were nothing but puppets in the hands of the giant opposite. The amendment which he intended to move would be to the effect that the property of the Church should be at the disposal of those persons only of the Town Council who were members of the Established Church; but as he understood that it would come in more properly in the 79th Clause, he should defer it till that Clause was proposed.
§ The 62nd Clause was agreed to.
§ On Clause 87th being put,
§ Mr. Harvey
said he had an amendment to move upon that Clause. He thought Recorders, who were, in fact, Judges, ought not to be placed in the dependent situation of seeking favour from attornies; and, therefore, he moved as an Amendment to the Clause, "that no person shall hold the office of Recorder of a city, town, or borough, who practises at the assizes or sessions of the county in which such town or borough is situated."
§ The Attorney-General
said, he had no objection to the principle of the Amendment; and would agree to it, if it were possible to provide such salaries for persons filling the office of Recorder, as would induce them to give up their practice; but the boroughs would not submit to the pecuniary burden necessary to effect that object.
§ Mr. Sergeant Talfourd
said, that as he filled the office of Recorder, he could state from experience, that his conduct as a Judge was never in the slightest degree influenced by his practising as a Barrister. If the Committee should be of opinion that the adoption of the Amendment would promote the pure administration of justice, he would submit to its decision, although it would sever a tie which bound him to the Corporation of the town which he represented.
Mr. Sergeant Goulburn
approved of the Amendment on the ground that the conduct of a judge ought to be above suspicion. It was almost impossible that if a Recorder was in the habit of practising as a Barrister circumstances would not occur which would be prejudicial to his character as a judge.
§ Mr. Grote
admitted the justness of the principle on which the Amendment of the hon. Member for Southwark was founded, but recommended him not to press it to a division, because, if carried, it would deprive the smaller boroughs of the advantage of having Recorders at all, on account of the expense which their appointments would then necessarily lead to.
§ Clause agreed to.
§ Clauses to 94, inclusive, were adopted.
§ House resumed. Committee to sit again.