HC Deb 03 August 1838 vol 44 cc986-95
Lord J. Russell

moved the Order of the Day for resuming the consideration of the Lords' amendments to this bill.

Mr. Ball

objected to that part of the amendments by which charitable trusts were to continue to be vested in the present corporators during their lives or until Parliament should otherwise determine. He moved, that the Committee disagree from that amendment.

Lord Stanley

said, that in effect this would be to bring back the bill in this respect to its original state. He approved of this amendment of the Lords, and he hoped the House would concur in it. As the bill went up to the Lords, the power was given to the Lord Chancellor to appoint trustees, provided, that by the end of a year after the passing of the bill Parliament should not have otherwise determined. Now, he had a strong objection to resting the appointment of the trustees of charitable trusts in the Lord Chancellor, who was a political functionary, and must be supposed to be under the influence of political feelings and prejudices.

Lord J. Russell

said, he did not claim for his noble Friend, the Lord Chancellor of Ireland, or for any other Lord Chancellor, a total exemption from the influence of political feelings; but let him ask, were the old corporators so far removed from all such influence as to be the best depositaries of those trusts? To him it appeared that they, without comparison, were much more objectionable on the ground of political feelings than a Lord Chancellor. He thought it would be much better to adhere to the old clause than to agree to the amendments sent down by the noble Lords.

Mr. Goulbourn

denied, that the old corporate bodies would be influenced by such strong political bias as the Lord Chancellor. It should be understood that the corporations were the trustees originally selected by the founders of the charities, as persons most likely to advance the interests of the trust, and he thought it would be most unjust to remove the powers legally intrusted to them, and vest those powers in the Lord Chancellor, who, from the nature of his appointment, must have strong political feelings. He was determined to support the amendments discreetly introduced into the clause by the other House.

The Solicitor-General

contended, that the system of appointing charitable trustees in England had not been a failure; on the contrary, it had given every satisfaction. He denied, that the Lord Chancellor was at all actuated by political bias in making those appointments. He sate in his court to decide on all cases referring to charitable trusts, with feelings of as little partiality as if he were deciding in any case brought under his consideration as the chief law officer in the country. He heard all petitions on the subject as the presiding judge of the Court of Chancery, and not as the partisan of the Government; but if the trusts were vested in the ex-corporators, who had left office with excited and angry feelings, great party bias would prevail.

Mr. O'Connell

expressed great surprise at the remark of the noble Lord (Stanley), that the Irish Corporations had not abused the trust vested in them. Had it not been proved that a sum of 2,900l., which was held by the Corporation of Belfast as trustees in 1787, was not applied to charitable purposes, but actually expended on the corporate body themselves? The same parties had let out at nominal rents for ninety-nine years to Protestants, their own private and political friends, lands left for the benefit of a charity called the Poor of St. John's. How did the Corporation of Dublin act? Did they not vote from the charitable trusts 2,500l. for corporate hospitality, and 1,000l. to the Lord Mayor! They also had entertained a notion of voting a sum to the Recorder. An appeal was then made to the Government for an information to be filed by the Attorney-General against the Corporation, but it was made in vain; time after time was it refused. At length, however, an information was filed, and to this a demurrer was entered; but this having been reversed on an appeal to the Lords, the cause came on to be tried and there was found a defalcation of 75,000l. in the funds of this charity. Now, was it intended that the present trustees should continue to have the management of these funds, which produced 13,000l. a-year? As the clause stood now in coming down from the Lords, this would be the case. The noble Lord opposite had excused himself on this point, when he said, there were no abuses in the charities of Ireland, by saying that this was no charity; but that was not correct, for this was a charity. Under these circumstances, he thought the House ought not to hesitate about changing the trustees. Why, since the Chancellor of England, although a political officer, was trustee to other charities, should he not have the management of this? If he were trusted with the countless millions that came under his control, why should he not be allowed to act as trustee, or appoint trustees of this comparatively trifling and insignificant sum? He would not speak of Lord Plunkett, but would propose the Chancellor of England as the trustee; and since the noble Lord had spoken of that learned Lord with some degree of distrust, as to being biassed by political feelings, he must say, that it was the first time he had heard a word spoken about him, except in terms of the highest praise, and he believed, that no man had ever filled a judicial office who had given such entire satisfaction. It had been hardly expected of him when he was appointed, but the result had realized what had not been looked for, and he was as good a Chancellor as any one who had ever filled that important office. Or why, indeed, should not Lord Plunkett be the trustee? That learned Lord had never, he believed, been accused of sacrificing his judicial situation to his political feelings, and there was no reason why he should not be trusted with these funds. If the clause continued as it stood now, the corporators would in future be liable to no responsibility whatever, except in the Court of Chancery. This was very bad; it was, in short, making them a present of the money; and was it to be supposed that the Dublin corporators were men of such property and respectability that they would not accept it? He thought not; for there was only a small number of them of rank or fortune. He had reckoned himself that during the last thirteen years, there were nine of the Lord Mayors who were either bankrupt or very nearly so. Were these, then, the persons who were to be intrusted with these funds? Any scheme to continue the management of them in such hands was a monstrous proposition, and better would it be to leave things entirely as they were now than to introduce an arrangement so objectionable.

Mr. Shaw

was sorry to go into a discussion of subjects not entirely belonging to the bill before the House, but he must say, in answer to the hon. and learned Member for Dublin, that what he had stated with respect to the Pipe-water Charity was in substance a misrepresentation; for the defalcation which he had spoken of, was wholly a matter of accounts, and there was no charge or proof whatever of fraud. Now as to this property being corporation property, he should only say, that in the Court of Chancery, and also in the Rolls, it had been declared to be the absolute property of the Corporation, after the trusts for which it had been given, were performed. Did the hon. and learned Gentleman mean to say, that the Lords in their amendment, intended to divest the Corporations, either new or old, of this property? For if so, he should say, that it was not their intention, and that it would be most unjust and most unfair to do it. The question indeed, was, whether the trustees should be filled up by the Lord Chancellor, or by the appointment which had been made at a given time. There was, however, one great improvement in this clause, which consisted in vesting the property in the governing body only of the corporation, and not in the whole corporation. He wished to hear from the noble Lord opposite (Lord J. Russell) whether the funds of the Pipe-water Charity were to be taken from the Corporation of Dublin or not?

Lord J. Russell

said, in reply, that he proposed to withdraw, at the end of the clause, the words that "no use or trust for supplying water should be deemed a use or trust under this Act."

The Attorney-General

agreed in the principle of this clause. He thought that where there was a charity belonging to the Church of England it was improper that its funds should be administered by Ca- tholics or Dissenters, and the same principle would apply mutatis mutandis. But his objection was, that the clause interfered with what properly belonged to the Lord Chancellor. It was a principle which ought to be acted on, and a principle on which any Chancellor would act.

Sir R. Peel

said, he should be content with the clause if it stood as he originally proposed—that is, without any specific reference to Roman Catholics. He should not think it necessary to make any specific provision with respect to Protestant Dissenters. He should be content to enact that, where there was any money left under charitable trusts, exclusively applicable to religious education, according to the principles of the Protestant Church of Great Britain and Ireland, the trustees should be of the established Church without any specific exception as to Roman Catholics.

Mr. O'Connell

concurred in the principle stated by the right hon. Baronet, that religious trusts should be in the hands of persons professing that religion; but the clause went further, and would tend to introduce religious exclusions. The superintendence would be in the hands of Protestants, and that would suffice. The visitors of Maynooth College (except one or two) were Protestants; the visitors of charitable donations were all Protestants, so there would be sufficient superintendence. As the clause stood, it was an offence to Protestant Dissenters, and especially to Roman Catholics.

Amendment agreed to.

After clause 161, several new clauses were proposed by Lord Morpeth, for the purpose of giving power to certain towns not included in the act to apply the provisions of the act of the 9th of George 4th.

Sir R. Peel

contended, that the amendments proposed by the noble Lord would really not have the effect of introducing the provisions of the act of the 9th of George 4th. The inhabitants of the towns to which that act was applicable, had it in their own option to accept its provision or not. It required, first, that an application should be made by the 20l. householders to have it applied; next, that a meeting of the inhabitant householders should have determined in favour of it. But the noble Lord's clauses would dispense with these preliminary steps, and make it imperative on the inhabitants to submit to the provisions of the act, however much they might detest them. The noble Lord had not enabled the House to judge of the effect of the clauses, by giving any notice whatever. [Lord J. Russell.—Last night I gave notice.] It was quite inaudible. It seemed clear to him, in fact, that the noble Lord had determined not to pass the bill into a law. He felt it was quite impossible to discuss the clauses with effect, no notice having been given; and if Government had determined not to pass the bill, it was quite clear.

Lord Stanley

said, if there were any measure on which the House took care that the most deliberate caution should be exercised, it was one that involved taxation. Yet here was a clause which proposed to levy a new and compulsory tax on the people of Ireland submitted to the House without the least previous notice, without preliminary consideration in a Committee, and without passing through any of those other stages which were necessary in the case of all enactments relating to money. It was very questionable whether they had the power of considering the clause in point of form, and it was most unquestionable that they ought not to consider it in point of justice.

Lord J. Russell

must say, that he thought the tone of complaint adopted by the noble Lord and right hon. Gentleman opposite rather extraordinary. This was a bill sent down from the House of Lords with ninety-two new clauses. The noble Lord had already told them, when another amendment was under consideration, that it would be an insult to the House of Lords to replace in the bill the words originally fixed upon by the House of Commons. Well, he did not now propose to insist on the original proposition; he was willing that some thirty or forty towns, to which by the provisions of the House of Commons' bill corporations would have been extended, should be deprived of them; he accepted the proposal of the Lords, and then he was told, that he ought to have abstained from making this proposal, because it was new. Then, if they were not to do either of those things, there could be nothing left for them except to agree word for word to every one of those ninety-two clauses inserted by the Lords, and to express their unqualified assent to the omission of the twenty-six that had been left out. If they were to be told, that the Lords having changed the whole bill, in principle almost as much as in form, having altered every clause, they could not make any changes that might seem required in those amendments, then it was at least as competent for him to say that the House of Lords could not have so made amendments without supposing that there would be some risk of the rejection of the bill in consequence, sending down, as they had, so many clauses which must be peculiarly objectionable to those on his side of the House, so many provisions which must be peculiarly obnoxious to the representatives of Ireland. He might say this with as much justice as the right hon. Gentleman opposite had said, that he (Lord J. Russell) had determined not to pass the bill at all, because he had not submitted himself, because he had not bent his neck, to the yoke of the House of Lords. As to the assertion, that the clauses would not in effect introduce the provisions of the act of the 9th George 4th into the smaller towns of Ireland, he should only remark, that the Lords had determined that the Irish towns, with the exception of twelve, should be governed by a board of commissioners, elected by persons occupying houses rated at 10l. annual value. To the principle of this alteration, taking away, though it did, corporations from the greater number of towns included in the original bill, he would not object; but he proposed, that the Commissioners should be elected by persons rated at 5l. instead of 10l. Many of those boroughs were very small, of inconsiderable population and property. Was it unreasonable in him to say, that a 10l., or even an 8l. rating, would be too high in a small town of 3,000 or 4,000 inhabitants or less, and that it was expedient to extend the elective body somewhat further? It was no doubt true, that the optional principle of the 9th George 4th was not retained. He hoped he might be permitted humbly to protest against the entire repudiation of even the least important principles of the original bill. When the amended bill should be returned to the House of Lords, he had not such an opinion of that body as to suppose that they would not take the Commons' reasons into consideration. If they saw fit on some points to differ from them, they would, he might expect, give their reasons for disagreement in a Parliamentary way, and not declare, that because the Commons did not at once agree to their amendments, it was evident they were determined not to have the bill passed.

Sir R. Peel

must say, he had never heard a greater msrepresentation, or one more unfair to himself and his noble Friend, than that made by the noble Lord. Had he objected in any way to the rejection of the amendments of the House of Lords, to the competency of that House to deal with them as they pleased? No such thing; he had himself proposed, in the course of the evening, important alterations in the amendments of the Lords; but he had objected to the course taken by the noble Lord in calling upon them to adopt an important principle without the slightest notice. Nothing could have been easier than for the noble Lord to have given the regular and usual notice; but instead of doing so, he had called on the House summarily to decide whether the 9th of George 4th should be forced on certain towns in Ireland without consulting their wishes; and this convinced him that either the regulations of the House were defective, or the conduct of the noble Lord was objectionable. But the noble Lord had found it convenient, in order to raise a cheer from those behind him, to mistake altogether the tenour of their objections, and to assume that he had asserted that the House of Commons had no right to alter amendments made in a bill by the Lords, and that the noble Lord was called upon to bow his neck to their yoke. He had said nothing of the kind—nothing that could justify such an interpretation.

Viscount Morpeth

maintained, that his noble Friend had not made the slightest misrepresentation. The noble Lord, the Member for North Lancashire, had twice that evening objected to making alterations in the amendments of the Lords, and the right hon. Baronet had inferred from the proposal of those alterations, that Government was determined not to have the Bill passed. He contended that his noble Friend, in his speech last night, had given ample notice of his intention to submit the proposition now before the House. Why! the right hon. Baronet had raised the objection, and said, that he disliked this very part of the proposition of the noble Lord. He begged the House to consider that the clause which it was now proposed to insert, did not involve any greater amount of taxation than that which originally stood in the Bill as sent up to the House of Lords.

Sir J. Graham

said, before the House went to a vote, he was anxious to ascertain from the chair, whether in point of form at this stage of the proceedings it was competent to propose a clause of this nature, involving a question of taxation, for insertion in any Bill. With respect to the last assertion of the noble Lord, he utterly denied that any such power as the noble Lord spoke of, was contained in the Bill as sent up to the House of Lords.

The Speaker

said, it appeared to him that the existing regulations of the House were inadequate to meet cases of this nature and it was absolutely necessary, if the course now proposed with respect to inserting this clause were to be adopted generally, that the House should institute some other mode of proceeding more calculated than their present mode to meet the exigencies of such cases as this. He knew of no mode of proceeding among the existing regulations which was calculated to give satisfaction in this case. As to the question which had been put to him, he was not able to state an opinion, because he did not know the facts; but if he were to take the statement of the right hon. Baronet, he should say, that there might be very great room for doubt, whether or not the House could adopt this amendment in this stage of the proceedings. If the difficulty which had been stated by the noble Lord, the Secretary of State for the Home Department, should arise, then the proper course would be, that the House resolve itself into a Committee of the whole House, to consider the amendments, and that, he must say, to him, did seem to be the best course to adopt.

The Chancellor of the Exchequer

said, the proposition of his noble Friend was rendered necessary, by the amendments introduced by the Lords. The House had heard the objection that this clause gave a taxing power, and that it ought, therefore, to be previously considered in a Committee of the whole House. But the fact was, that this clause contained no taxing power whatever, except what was contained in the bill as sent up from the House of Commons, and that power was proposed to be carried out by machinery, if not the same as that in the bill as sent up to the Lords, only differing from it by a limitation on it. He contended, therefore, that it was competent for them to introduce this clause, which was either the same as their own clauses, or if it differed from it, only differing by being within them. With respect to the act of the 9th of George 4th of which so much had been said, he begged to observe that the whole of that bill, as well as a similar bill for England and Wales, had originated in that House without any previous Committee of the whole House, respecting the taxing clauses. The question was as to the taxing power. Now their own original taxing clauses went through Committee, and that original clause was infinitely wider than in its present form.

The House divided on the question that the clause be agreed to. Ayes 116; Noes 97: Majority 19,

List of the AYES.
Adam, Admiral Hastie, A.
Aglionby, H. A. Hector, C. J.
Alston, R. Hill, Lord A. M.
Archbold, R. Hobhouse, Sir J.
Ball, right hon. N. Hobhouse, T. B.
Bannerman, A. Hodges, T. L.
Barnard, E. G. Hollond, R.
Bellew, R. M. Hoskins. K.
Benett, J. Howard, P. H.
Berkeley, hon. H. Howard, Sir R.
Bernal, R. Howick, Lord
Bowes, J. Hume, J.
Brabazon, Lord Hutt, W.
Brabazon, Sir W. Hutton, R.
Briscoe, J. I. Labouchere, H.
Brotherton, J. Lemon, Sir C.
Bryan, G. Leveson, Lord
Cave, R. O. Lushington, Dr.
Cayley, E. S. Lushington, C.
Chalmers, P. Lynch, A. H.
Childers, J. W. Macleod, R.
Clements, Lord Marshall. W.
Codrington, Adm. Martin, J.
Collins, W. Morpeth, Lord
Crompton, Sir S. Morris, D.
Curry, W. Murray, J. A.
Dalmeny, Lord Muskett, G. A.
Dashwood, G. H. O'Connell, D.
Divett, E. O'Connell, J.
Duke, Sir J. O'Connell, M. J.
Easthope, J. O'Connell, M.
Ebrington, Lord O'Ferrall, R. M.
Evans, G. Palmer, C. F.
Ferguson, Sir R. Palmerston, Lord
Finch, F. Parker, J.
Gordon, R. Parnell, Sir H.
Grattan, J. Pattison, J.
Grey, Sir G. Pechell, Captain
Harvey, D. W. Pendarves, E. W.
Ponsonby, J. Strangways, J.
Power, J. Style, Sir C.
Pryme, G. Thomson, C. P.
Redington, T. N. Thornley, T.
Rice, rt. hon. T. S. Troubridge, Sir E. T.
Rich, H. Turner, E.
Rolfe, Sir R. M. Vigors, N. A.
Russell, Lord J. Villiers, C. P.
Russell, Lord Vivian, Sir R. H.
Russell, Lord C. Wallace, R.
Salwey, Colonel Warburton, H.
Scrope, G. P. Williams, W. A.
Seymour, Lord Winnington, H.
Sheil, R. L. Wood, C.
Smith, J. A. Wood, G. W.
Smith, hon. R. Wyse, T.
Smith, R. Yates, J. A.
Somerville, Sir W. M.
Stewart, J. TELLERS.
Stock, Dr. Steuart, R.
Stuart, Lord Stanley, E. J.
List of the NOES.
Acland, Sir T. D. Herbert, hon. S.
A'Court, Capt. Herries, J. C.
Attwood, M. Hillsborough, Earl of
Bagge, W. Hodgson, R.
Baker, E. Hope, H. T.
Barrington, Lord Hope, G. W.
Blackburne, I. Hotham, Lord
Blackstone, W. S. Ingestrie, Lord
Blair, J. Inglis, Sir R. H.
Bleunerhasset, A. Irving, J.
Bramston, T. W. Jones, T.
Broadley, H. Kemble, H.
Buller, Sir J. Y. Knightley, Sir C.
Canning, Sir S. Lascelles, W. S.
Chute, W. L. W. Lockhart, A. M.
Codrington, C. W. Lowther, J. H.
Compton, H. C. Lucas, E.
Coote, Sir C. H. Lygon, Gen.
Corry, hon. H, Mackinnon, W.
Dalrymple, Sir A. Mahon, Lord
Darby, G. Manners, Lord C.
De Horsey, S. H. Meynell, Capt.
Douglas, Sir C. Miller, W. H.
Douro, Marquess Neeld, J.
Dowdeswell, W. Neeld, Jos.
Dunbar, G. Norreys, Lord
Duncombe, W. Ossulston, Lord
East, J. B. Peel, Sir R.
Eaton, R. J. Perceval, Col.
Egerton, W. T. Perceval, hon. G.
Eliot, Lord Praed, W. T.
Estcourt, T. Richards, R.
Farnham, E. B. Rushbrooke, R.
Filmer, Sir E. Rushout, G.
Fitzroy, hon. H. Shaw, F.
Fleming, J. Sibthorp, Colonel
Forester, hon. G. Somerset, Lord G.
Gordon, Capt. Spry, Sir S. T.
Goulburn, H. Stanley, L
Graham, Sir J. Sturt, H. C.
Granby, Marquess of Tennent, J. E.
Grimston, Lord Thomas, Col.
Grimston, hon. E. Thornhill, G.
Heneage, G. W. Tollemache, F
Trench, Sir F. Walsh, Sir J.
Tyrell, Sir J. T. Wood, T.
Vere, Sir C. B. Young, J.
Verner, Col. TELLERS.
Vivian, J. E. Freemantle, Sir T.
Waddington, H. Holmes, W.

Clause inserted.

The remainder of the Lords amendments were disposed of, and a Committee appointed to draw up reasons for dissenting from the Lords amendments, to be stated in a conference with the Lords.