Commons Sitting of 6 July 1859

MINUTES.
NEW MEMBER SWORN.—For Northampton Borough, Lord Henley.
PUBLIC BILLS:—1° Railway Companies Arbitration.
2° Locomotive.

ENDOWED SCHOOLS BILL.

  SECOND READING.
  Order for Second Reading read.
  MR. DILLWYN: Sir, the question now before the House is one which has excited very considerable interest throughout the country at large, as is shown by the number of petitions which have been presented both for and against it; and that this should be the case is not to be wondered at when we consider the number of endowed schools which exist in every part of the country. The Charity Commissioners have, I believe, reported upon somewhere about 3,000, and the amount of their annual income has been estimated by Mr. Horace Mann at not much less than £500,000. Now, from the nature of many of the petitions against the Bill, it is evident that the Church party consider it to be a measure directed against the Church, and an attempt to wrest from them the endowments which properly belong to that Establishment. I, however, disclaim any such intention. With regard to very many, probably the great majority, of these schools there can be no doubt as to the intentions of the founders, and that they were, that education, in accordance with the doctrines and teaching of the Church of England, should be given in them. Thus one directed that the Ten Commandments, the Articles of Faith, and the Creed, should be taught; another, that the children should be brought up in the understanding of the Catechism, as set forth by public authority, the Psalter and Book of Common Prayer; and in others, the Church Prayers were directed to be read. Now, in schools where the founder has given instructions such as these, there can be no doubt but that he intended the schools to be in connection with the Church of England; and I, for one, have no desire to meddle with them by the present Bill, or to attempt to wrest them from that Church. In proof of this, I may say that I was by no means favourable to the Bill brought forward in the House of Lords last year, which proposed to enact that no person should be disqualified from being

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  a trustee of an endowed school by reason of his being a Dissenter, as I could never see that Dissenters had any right to interfere in the management of schools specifically devoted to the Church of England. An elaborate petition from the National Society, copies of which have, I believe, been sent to all members, assumed that the endowments of schools had in all eases been employed in accordance with the wishes and intentions of their founders. This, however, is exactly the question at issue, as I deny that in many cases of such schools as I now propose to deal with, the intentions of the founders have been attended to. Now, these schools—namely, those in which the founders have either not said anything about religious instruction or have only alluded to it in general terms, are probably in a minority, and a very considerable one, and they are therefore watched over with great jealousy, both by Dissenters and those who are favourable to secular or non-sectarian education. This feeling of jealousy has of late become one of alarm from the aggressive position assumed towards these schools by the Church of England, and this alarm has been heightened by the fact that the law, as recently expounded by some of our most eminent Judges, favours the position thus assumed. The law as it now stands, so far as I understand it, is this—that where the founder of a school did not in the deed of endowment use any specific words exactly defining the kind of religious teaching he wished to be given in it, but only employed words of general import, such as that the children were to be taught the fear of God, or the principles of the Christian Religion, it was to be assumed, looking to the period when many such schools were founded — namely, before the Dissenters' Toleration Act had passed—that he intended to indicate that the religious teaching to be given in the school should be that of the Church of England, which at that time was the only body which had acquired a national status for the purposes of religious instruction. The law goes further than this, however, and says that, even in cases where nothing whatever is said in the foundation deeds as to religious teaching, the feeling of the founders must be assumed to have been that no education could be desirable that was not founded on religion, and that the religious instruction so assumed to have been intended to be given could only be that of the body which had acquired a national
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  status for that purpose. Now, Sir, if these inferences are to be pressed to their logical conclusion, I do not myself see what is to prevent the Church of England obtaining the sole and whole control over nearly all endowed schools throughout the country. In confirmation of the view I have thus taken of the law as it stands, I will quote from the judgment of Lord Justice Knight Bruce in the case of the Attorney General v. Cullum, in which a charity at Bury St. Edmunds, established in Edward the IVth's reign "to the glory of God and of the most gracious Virgin coming to be administered," the Master in Chancery drew up a scheme for founding a school open to children of all denominations. A portion of the stated school hours were to be set apart for reading the Scripture lessons prepared for the Irish National Schools, but no other religious instruction was to be introduced into the school. The trustees were to appoint the master and mistress, no restriction being placed upon their religious creed. To this scheme it being objected that the master and mistress ought to be of the Established Church, and that Church of England teaching should be given where the parents of the children did not object—the Lord Justice (then the Vice Chancellor) Knight-Bruce, in giving judgment said —
  "In my judgment this scheme does not provide for religious instruction in the sense in which the expression ought to be understood. Its effect is, not that it does not provide for religious instruction according to the Church of England, but that it does not provide for what I am able to consider religious instruction at all. If education, of course including religious instruction, is to be provided for, I apprehend it must be according to the doctrines and principles of the English Church. I know no other standard or guide to which the Court can resort.… If education is to be part of the scheme, it is clear, in my judgment, that whatever may be the particular course of instruction pursued, or whatever maybe the course as to the exemption of any child from any particular points of instruction, the masters, mistresses, and teachers must be members of the Church of England; and that no other course of religious instruction should be adopted than such as is in conformity with the Church of England."
  Again, in the case of the Chelmsford Grammar School which was decided by Vice Chancellor Sir W. Page Wood, that learned Judge said—
  "After the arguments I have heard, and looking to the whole scheme, frame, and foundation of charities of this description, it appears to me impossible to hold that any school founded, as this has been, by one of the Sovereigns of this country for the purpose of teaching grammar, could he other than a school not only for teaching grammar, but also for sound religious education;

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  and looking at the period at which these schools were founded, such education must have been education according: to the doctrines and discipline of the Church of England. As regards this particular school, it is true the charter does not, like many other charters, state on the face of it that the children should be brought up in the fear of God, plainly indicating religious instruction. This charter makes no reference whatever to the religious character of the instruction. But the omission may be accounted for by the circumstance that the charter itself is a grant of the lands of dissolved chantries, &c.
  "A great deal might be said in support of the proposition, that foundations for instruction of any kind, at least down to the time of Car. I., involved necessarily religious teaching—(p. 567.) If it were necessary in the present case to lay down any rule on that subject, the utmost I could do in point of jurisdiction would be to say distinctly that every child must be taught the Scriptures, and every child must have religious instruction generally; and that such religious instruction must be by a master being himself a member of the Church of England. That, it is true, would involve the difficulty as to Dissenters.… But that difficulty must have existed in the case of the Bury School, and in all the other schools. It is what the Court has done in every case; and I certainly shall not be the first to say that any system of education can embrace a true notion of education that leaves a blank in this respect, and leaves it open to a considerable portion of the school to remain without any religious instruction whatever. It may be a very proper question for the Legislature to deal with, as in King Edward's School at Birmingham, when the Legislature dealt with it as they thought fit; and I am informed that the alteration has acted beneficially. It is quite open to the Legislature to deal in the same manner with this school.
  I might have quoted other cases in which the law is similarly explained, but these will, I think, suffice, and I will now proceed to call the attention of the House to the way in which, as it thus stands, it narrows and defeats the intention of the founders of such schools. With this view, I beg the House to remember what was the main object of the founders of these schools? There can be no doubt but that it was useful education. No one will deny this, and I dissent from an interpretation of law which sets this, the main object of the foundation, and about which there can be no doubt whatever, aside, and in a greater or less degree defeats it on account of supposed wishes, or hints of wishes, which the Founder did not think of sufficient moment to specify in express terms. Thus in cases (and there are many such) where dissent in the district of particular schools has become very prevalent among the poorer classes, the education of those very classes for whom this provision was expressly made is practically withheld from them, because the law infers that the
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  Founder must have meant to provide something more than that which he had expressly declared. To show how the members of the Church may, and sometimes do, conduct their schools, I will read an extract of a letter which I hold in my hand, dated, February 14, 1859:—
  "I fear there is no prospect of anything being done in reference to what we call 'National Schools.' Last week many pupils were sent back from the one in Whittlesea because they were not prepared to pay sixpence on Monday morning, in lieu of a penny, as they did not attend church or church school on Sundays. A penny per week the poor children who will go to the church on Sunday, pay.'"
  Here, again, is an extract of a letter dated Fakenham, February 15, 1859.
  "Harrison's Charity is applied to the education of a certain number of boys and girls, and to the distribution of blankets among the poor. It was augmented by the bequest of the late Joseph Peckover, a member of the Society of Friends. Within my recollection, two of the Trustees were Dissenters. The Masters and Mistresses by whom the children were instructed, were both Dissenters, and no restriction was imposed as to the admission of children. Of late years, the Trustees have been chosen exclusively from the Church of England. The educational fund is appropriated exclusively in aid of the national school in which a rule exists that no child attending a Dissenting place of worship in the morning or afternoon, shall receive its benefit."
  These instances illustrate not only the narrow spirit which sometimes prevails in the Church schools, but also the way in which the object of giving general education to the poor may be defeated by sectarian action. Now, Sir, I have no doubt but that those who are opposed to my Bill sincerely believe that where only general terms as to religious instruction occur in foundation deeds, the intention of the founder upon that important subject must nevertheless have been specific. I certainly cannot arrive at this conclusion and I would, in support of my view, put the following case to my objectors. Supposing a person in the reign of Edward VI., for instance, to have been desirous of founding a school in which religious instruction, according to the doctrines of the Church of England, should be given, is it likely that he would not have specified this intention, that he would have trusted alone to the "status" acquired by the Church of England as a national establishment for religious instruction to give effect to his wishes? —it appears to me most unlikely that he would have done so—he would have known full well that the position then held by the

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  Church—as a national Church—was a very uncertain one; that it had been but very lately wrested from the Roman Catholics, that they were still a formidable and powerful body, still striving to recover the position for which they had been thus ejected, and that even among Reformers themselves, doctrine was by no means settled, as the followers of Calvin and Luther and other sects disputed for the upper hand. Knowing all this, surely if he had been especially desirous to provide for the propagation of the doctrines of the Church of England, he would have taken care to do so in express terms; there was no law to prevent his doing this; lawyers whom he would have called to his aid to draw up his deed, would undoubtedly have so advised him and informed him of the necessity (in those days much insisted on by lawyers) of being precise and specific in the expression of his intentions. In looking over the Charity Commissioners' Reports I met with numerous cases showing the care and precision with which these deeds were drawn up, and the clearness with which they often specified their intentions as to religious instruction. Here are the terms used in one of them. It directs that the Trustees should be "some honest and discreet fitting persons of the Protestant religion, as by law established, neither Popishly affected on the one hand, nor fanatically inclined on the other hand." The schoolmaster was to be a man of "sober life and conversation, and in full communion with the Church of England." The boys were to be taught "to read English, and cypher," and especially "the Catechism of the Church of England," and to be instructed "in the principles of Christianity." While, however, a churchman could thus clearly give effect to his intention and provide for the teaching of his own form of religion, the House must remember that before the passing of the Dissenters' Toleration Act, this was not the case with Dissenters, as they were prohibited by law from creating foundations for any particular religious teaching other than that of the Church of England. Any Dissenter, therefore, at this period wishing to found a school, would most probably either leave out all mention of religious teaching, trusting to its being provided by the parents or ministers of religion of the sects to which the children might belong; or would only use such general terms as to religious teaching as would provide for instruction in the great catholic truths of religion
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  without indicating a preference for any doctrinal form of religion. The following is another extract from the Charity Commissioners' Reports, which well illustrates the precision with which such founders indicated their wishes even in the most minute particulars. Over's Charity, in Winchester, provides that the mayor and aldermen shall have 20 s. a year to drink a glass of wine in each year, on the day of the testator's death. It was founded as a school for poor boys whose parents were too poor to pay for their schooling elsewhere; they were to be taught to read, write, and cast accounts; and should besides learn their accidence and grammar, so as to qualify them for apprentices for tradesmen, &c." Master not to be "a Welshman, Scotchman, Irishman, foreigner, or north countryman;" because "his scholars should nòt be corrupted in their youth with a vicious pronunciation, or be taught barbarous English." Here, however, no mention whatever is made as to religious instruction, and there cannot be a doubt, as I think, that the founder did not intend it to be given, as the very care and precision of these instructions, as to minor points, naturally lead to the inference that he would not have left the important question of religious teaching to chance had he intended it to be given at all.
  My own attention was first especially directed to the position of Dissenters in respect of endowed schools by the Ilminster School case, which was decided rather more than a year ago—it was that of a school in the parish of Ilminster, founded in the reign of Edward the Sixth. There was nothing sectarian in the endowment, and the surplus revenues, if any, were to be applied to the repairs of roads and bridges. The school was founded for the benefit of the poor of the district generally, who were to be given a virtuous education, and to be taught their duty "to God and the King's Majesty." The trustees were to be honest men of the parish of Ilminster, and no mention was made as to their religious opinions. For at least the last 150 years the affairs of the school had been satisfactorily administered by trustees chosen, as it appears, without reference to their religious opinions, and matters had gone on smoothly and well, some Dissenters having always been upon the trust. About two or three years ago, however, a new light appeared in the parish in the person of a new vicar, who objected to the presence of Dissenters in the trust. Soon

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  afterwards the number of trustees having dwindled down from eighteen to three, it became necessary to appoint new ones to bring up the original number. The three that remained chanced to be all Dissenters, and in making the new appointment the Master of the Rolls nominated twelve Churchmen and three more Dissenters, thus constituting the trust of twelve Churchmen and six Dissenters. The vicar appealed against this decision to the Lords Justices, and the result was that all the Dissenters were struck out of the trust. Now this was very likely perfectly in accordance with the law as it stands, and indeed I do not myself see how the Lords Justices, governed by former decisions, which started from false premisses, could have come to any other conclusion. But this conclusion shows the faulty state of the law, and the absurdity of the inference drawn by it from the silence or vagueness of founders of schools. As to religious teaching in this Ilminster case. Proceeding upon such inference it arrives at the conclusion (the absurd conclusion as I think it) that in the eye of the law in regard to religious teaching no Dissenter can be considered as an "honest man," and trusted as such. Now, I ask the House, is it likely that Dissenters will consent to remain under such a law; is it reasonable to expect that they will sit down quietly and see themselves by the application of such a principle excluded from important trusts? I think not; they are quite awake to their position, to the attack which has been commenced upon them, and to the necessity of energetic action to repel it. The following letter, received by a friend of mine on the 21st instant from a member of the Society of Friends, will show the feelings entertained by them upon the subject. I do not mention the name of the school alluded to, fearing that were I to do so I might indicate a vulnerable point of attack to the aggressive party in the Church.
  "I forward herewith a, petition in favour of Dillwyn's Bill from the Trustees of —— School:"—
  "'The Charity was founded by a Dissenter, and a majority of the trustees have always been Dissenters, but there is nothing in the deed to show that it is not a Church school, and they are directed to appoint a 'God-fearing Christian person' to be schoolmaster, always preferring 'persons of sobriety, good morals, and character, who will pay strict attention to the morals and religious education of the children,' so that according to the recent decision five out of seven of
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  the trustees might be turned out to make way for Churchmen.'"
  Now, in the measure which I have introduced in order to correct this inference of the law, and which I hope the House will agree with me in considering to require correction, I have sought to enact that no endowed school or educational charity shall be deemed to have been founded for the purpose of affording religious education according to the principles of the Church of England exclusively, unless from the language of the deed of endowment it appear that such was the intention of the founder; and such a measure as this is I submit to the House, one of defence against and not of attack upon the Church of England. I have also, following the precedent of the Grammar Schools Act, excepted from the operation of the measure the Universities (except the London University, which does not wish to be excepted) and certain large schools. I know that an objection is taken to this measure on the ground that the Legislature ought not to interfere with the legal interpretation of words. But for such interference there are abundant precedents. Thus in the Wills Act, 1 Vic. c. 26, such clauses were introduced. Expressions in wills which everybody knew to have been intended to give the legatees or devisees an absolute interest in property, but which the Judges had decided to mean only a life interest, are there legislatively declared to mean an absolute interest; and in introducing the present measure I cannot do better than to quote the words used by Lord Langsdale in moving the Wills Act in the House of Lords, he said,—
  "I have heard of objections being made to a legislative construction of words, but when a. rule of construction which plainly violates the lawful intention of testators has been established in the Courts of Law, I know no way of correcting the abuse (for such it is), but by legislative interposition."
  Having now, Sir, shortly stated the case which exists for the enactment I propose, I would earnestly appeal to the House to assist me to pass it into a law. Even upon the narrow ground of economy I would ask that it should be passed. We are doing our utmost to promote and extend the education of the poor, we annually vote very large sums of money for the purpose, and these sums are steadily and enormously on the increase. In 1855 the educational vote amounted to £396,921, while last year it was £663,435, having nearly doubled in three years. Is it not then desirable that we should do all in our power

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  to save the public purse, and to make the means of national education which already exist and have funds especially devoted for that purpose, as available as possible? Upon the ground of policy and expediency too do I ask the House to assist me,—upon the ground that it is not politic, it is not expedient to allow a sense of injustice and exclusion to be felt by the great body of Nonconformists in the country, numbering, of one sect and another, probably a third at least of our population, and necessarily engendering among them, both towards this assembly and the Church of England, feelings which we should all wish to prevent and allay. More than all, Sir, however, have I taken up this question as I consider it to be an assertion of the principle of religious liberty, that principle which recognizes the right of every man to decide for himself as to his religious belief, and which denies that any other men or set of men should interfere with him as to such belief, or subject him to civil disabilities for the exercise of that which as a citizen I claim to be a right, and as a Protestant, I hold to be a duty. Upon all these grounds do I appeal to the House, and I do so with some confidence as I believe the principles which I thus advocate to be steadily advancing in the present century. The Test and Corporation Acts have been passed, the Universities of Oxford and Cambridge have opened, and will, I hope, open wider still their doors to Dissenters, while even within the last year we have admitted members of the Jewish religion to a seat in this House. I therefore ask the House to allow this Bill to be read a second time, and to unite with me in the effort which I now make to sweep away one of the relics of intolerance which still hang around our free institutions, impairing their usefulness and disfiguring their beauty. I move that the Bill be now read a second time.
  Motion made, and Question proposed, "That the Bill be now read a second time."
  SIR STAFFORD NORTHCOTEsaid, he must admit that the speech of the hon. Gentleman had been exceedingly temperate and very fair; and he admitted that, looking at the Bill, and taking it by itself, it could not be said that the proposals of the Bill, as gathered from the words, were very extreme. He had felt some difficulty as to the course which he should take, and it was not without some hesitation that he had come to the conclusion of
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  moving that the Bill be read a second time that day there months. He was unacquainted with the doctrines of the Court of Chancery, and he had therefore wished that the matter should be taken up by some of his hon. and learned Friends who would have been so much better able to deal with it; but as the Bill had been put down for discussion at a morning sitting, their attendance was rendered uncertain, and therefore he had undertaken to raise the question on the second reading of the Bill, that the discussion might be initiated on a matter of very general interest throughout the country, as was indicated by the number of petitions that had been presented relative to the proposed alteration. As to the charge of the hon. Member (Mr. Dillwyn) that the measure had originated in the aggressive action of the Church of England in reference to endowed schools, be could tell the hon. Member that there was a very general feeling in the country among those interested in Church of England schools that the imputation of aggression pointed in the contrary direction:—it was the more general opinion that the measure was one of an aggressive character to the Church of England, and the Church was called upon to defend itself against the assault that was being made upon it. If the cases decided by the Court of Chancery cited by the hon. Gentleman were really such as he described them to be; if, for instance, it were true that a school founded by a Dissenter, and always administered by Dissenters, was in danger of being taken from them by the operation of law, and given to the Church, he (Sir Stafford Northcote) thought that an inquiry ought to be instituted. He knew not the law, but he was told by high legal authorities that such an abuse as had been described by the hon. Gentleman could not really exist. He was told by some of his hon. and learned Friends that the Bill would in effect be nugatory, insamuch as the provision in the first clause was in point of fact a declaration of the principle upon which the Court of Chancery at present proceeded. He understood it was the principle of the Court of Chancery in construing the intentions of the founder, whenever the slightest ambiguity arose, to place itself, as far as possible, in the position of the founder, to consider the meaning of the language as used at that time, and to inquire into the past usage of the school. If that were so he did not perceive how the Bill could make any difference, because the Judges would be just

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  as liable to misinterpret the intentions of the founder as before. It might be said, however, by the advocates of the Bill, "Well, then, if you think the Bill will be nugatory, why do you oppose it?" Now he apprehended that a practical evil would arise if the measure were passed—that evil was, that it would generate a large amount of very mischievous litigation. There was a feeling throughout the country that this Bill would alter the position of Dissenters in regard to school trusts, and therefore a great amount of litigation might be expected from its passing. When the hon. Gentleman described this as a measure of economy, he (Sir Stafford Northcote) thought it could hardly deserve that title when they considered that a large portion of the funds intended for national education would be wasted in Chancery suits and vexatious litigation. The Bill would give rise to false expectations, and consequently to great mischief. But he had another objection to the Bill. It professed to respect the intentions of founders, yet its animus was to set them aside. He could understand that the intentions of founders might for good cause be set aside. What he did not understand was, how a Bill, professing to respect them, should indirectly neutralize them. He looked to what had been the proceedings of the hon. Gentleman in relation to this subject, to the four Bills which he had successively brought in, and to his able speech in introducing it to the House. It appeared that what the hon. Gentleman expected to do, was to make a change in those principles upon which the Court of Chancery at present proceeded, and to lay it down that the intentions of the founder were to be ascertained only from the language of the instrument founding the charity; and that they should not be judged by anything outside of it. So that if the language was ambiguous it was not to be interpreted, as in the case of other trusts, by a reference to the circumstances of the founder and of the time in which he lived, but by the bare meaning of the words. Thus, whilst the advocates of the measure professed to respect the intentions of the founder, they were taking a step well calculated to defeat them. He had a further objection to the Bill. Supposing it to be carried into effect, they could not see to what it would lead. It was altogether of a negative character. It proposed to do away with the exclusive rights of the Church of England in certain foundations, but it did not sub-
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  stitute a right on the part of any other religious communion. They would either get rid of religious teaching, and reduce those schools intended to give "a godly education" to mere secular schools, or they would adopt the other alternative—namely, that of maintaining what was called religious instruction, but which would be utterly emasculated by being founded upon those points only upon which all religious denominations were agreed, whereby the whole spirit and meaning were taken out of religious education. This measure went practically to oppose the best system of religious instruction that could be devised—a system that was supported by a large majority of that House, as well as of the country, namely the denominationial system. It was true they said that this Bill was not adverse to the Church of England schools in particular; but it was impossible not to observe the contrast between the mode in which it was now proposed to deal with Church of England schools and the principles on which the House had dealt a few years ago with the Dissenters' schools, by the Dissenters' Chapels Act. Parliament then defended those persons in possession of endowments, and passed a law by which it was enacted that twenty-five years' possession should give a title. If the hon. Gentleman feared that the Church of England had been lately taking the aggressive, and wished to oust the Dissenters from these schools, why did he not introduce a clause that twenty-five years' possession should give a right to these endowments? Such a clause would satisfy the great majority of those who opposed the Bill. They desired nothing better than that their title should not be disturbed, or their teaching ousted to give place to a system of religious instruction of the worst character. Although he objected to this Bill, he, and those who felt with him, did not desire to deal with these endowments in a sectarian or monopolizing spirit. He wished that the Dissenters, without spoiling these endowments, should profit by them, and Parliament had already legislated with a view to carry out this object. He need not remind the hon. Member for Swansea of the many Acts that had recently been passed, which had had the effect of admitting Dissenters to the benefit of education in Church schools, and he should be glad to see an inquiry instituted in order to ascertain how these endowments were to be made more useful. The effect of the present measure, how-

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  ever, was not to make the endowments more generally useful, but simply to spoil them, and make them useless to the Church. He would therefore move that the Bill be read a second time on that day three months.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this Day Three Months."
  Question proposed, "That the word 'now' stand part of the Question."
  MR. PULLERin seconding the Amendment said, having the honour to serve on the Committee of the National Society, I have thought it my duty to examine this question, and must therefore ask the attention of the House for a short time. So far as my hon. Friend the Member for Swansea has stated the actual decisions of the Courts on the subject of Endowed Schools. I believe he has stated them correctly; but when he proceeded to deal with hypothetical cases, I think I shall be able to satisfy the House, that he has stated that to be the law which is really not the law. But first of all let me speak of the Ilminster case, out of which all this discussion has arisen. That case has been treated as if the Lords Justices, overruling the decision of the Master of the Rolls, had established some new doctrine highly injurious and offensive to the Dissenters. But the fact is that, as regards the general law of Endowed Schools, there was no difference of opinion between the Courts. The Master of the Rolls, equally with the Lords Justices, held that the Ilminster School was a Church school, and he did not dispute that, if the trust had related only to the school, Dissenters must have been excluded from the trust. The point of difference was this, that the founder having declared that any surplus which should remain after providing for the school should go to the repairs of roads and bridges, in which Dissenters are of course as much interested as Churchmen, the Master of the Rolls thought that that circumstance took the case out of the general rule, and that, being a mixed trust, Dissenters were admissible as trustees, while the Lords Justices held that, the school being the primary object of the founder's bounty, and the roads and bridges only a subordinate object, the character of the trust must be determined by the former, and that therefore Dissenters must be excluded. Well, that was a question as to the application of the law on which there might be a fair difference of opinion, but
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  that is obviously not the question which it is proposed to settle by this Bill. The persons by whom this Bill has been promoted have made the decision in the Ilminster case the occasion for a vigorous assault upon those principles of law and construction about which there was no doubt in the Courts of Law. In doing that, I am bound to say, they have not been very strict or scrupulous in the statements which have been circulated. As evidence of that I may refer the House to a petition which has been presented to this House from the ministers of the Baptist churches in the county of Pembroke, in which they say they are informed that it has lately been decided by the Court of Chancery, that no Dissenters can be a trustee or master of any school, the founder whereof has required such trustee or master to be an honest and discreet person capable of teaching godly learning. Now, Sir, if educated persons filling the respectable position of Baptist ministers have been made to believe that the Court of Chancery has declared any such nonsense, one cannot be surprised that there should be some excitement, or that petitions should be poured in for an alteration of the law. Of course I entirely acquit my hon. Friend the Member for Swansea of being a party to any such misstatement. He knows, as well as I do, that the Court has laid down no such rule. He knows, as well as I do, that, in determining the character of a school, the Court examines first of all the deed or other instrument by which it was founded. If the language of the founder shows his intention without any ambiguity, the Court carries out that intention, whether it be in favour of the Church, or of any Dissenting body. But if the language of the founder be from any cause ambiguous, the Court then admits evidence to show in what sense the ambiguous expressions were used; they ascertain whether the words had the same meaning at the time when the school was founded which they have now, and whether they were used in any special sense by the party or sect to which the founder belonged. They consider what the state of the law was at the time, and further they inquire what has been the usage of the school from the time when it was first founded. And this is a very important point, and not to be overlooked in considering that hypothetical case which my hon. Friend put, and which appeared to me to make a stronger impression on the House than any other part of his able speech.

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  He said that if a school had been founded by a Dissenter, and had been carried on ever since its foundation by Dissenters, or trustees, and teachers; yet if the instrument by which it was founded did not expressly say that it was in trust for some Dissenting community, the Court of Chancery would consider it a Church school, and on an application for that purpose exclude all Dissenters from being trustees. Now, I take upon me to say that is not the law. I say the Court would look in such a case to the usage of the school. I will refer to two cases. The first is a leading case on the subject, the Attorney General v. Pearson (3 Mer. 400), in which Lord Eldon said, "Where an institution exists for the purpose of religious worship, and it cannot be discovered from the deed declaring the trust what form or species of religious worship was intended, the Court can find no other means of deciding the question than through the medium of an inquiry into what has been the usage of the congregation in respect to it; and if the usage turns out to be such as can be supported, I take it to be the duty of the Court to administer the trust in such a manner as best to establish the usage, considering it as a matter of implied contract between the members of the congregation." That that is still the doctrine of the Court, and that it applies to schools as well as chapels will be seen from the case of the Attorney General v. the Bishop of Worcester, in which Sir George Turner, one of the very Judges who decided the Ilminster case, said, "There is some reason to suspect that this school (the Kidderminster school) was in connection with the Church of England, but the evidence shows that the usage has been to admit the children of Dissenters, and in the absence of any positive evidence confining the benefit of the charity to members of the Church of England, I think the question must be governed by usage, and that the Attorney General is, therefore, entitled to have this restriction removed."
  Sir, my hon. Friend has told the House that he has introduced this Bill not as an aggression on the Church of England, but as a defensive measure to protect the Dissenters from an aggressive movement on the part of the Church. I do not for a moment question his sincerity in making that declaration; but having endeavoured to show that the Bill is not required for the protection of the Dissenters, I must add that outside the walls of this House the
  732
  promoters of the Bill do consider it a very important blow to the principle of an Established Church. I need only refer to a speech lately delivered at a meeting of the Liberation Society by Mr. Miall, a gentleman who, whether we agree with him or not, commands our respect by the ability and frankness with which he states his opinions. In that speech Mr. Miall, speaking of the Ilminster case, and of the Bill now before the House said, "he believed that the Judges of the law courts had interpreted the law of England according to the principles upon which they could alone interpret it, whilst there remained an Established Church. Even toleration was inconsistent with the principles of an Established Church, it was only unsaying by one law what was established by another. Under these circumstances they were making a most deadly thrust upon the principle of an establishment by standing forth and saying in regard to schools, the endowments of which might be said to have passed into a state wherein they became national property, they were as much the property of Dissenters as of Churchmen." Sir, I believe that Mr. Miall is quite right, and that if this measure pass into a law it will inflict a heavy blow upon the Church of England. An attempt has been made to-day to show that the number of schools to which the provisions of the Bill will be applicable will be comparatively small. In reply to that argument I must draw the attention of the House to the language of the principal clause.
  "No endowed school or educational charity shall be deemed to have been founded for the purpose of affording religious instruction according to the doctrines of the Church of England exclusively, unless from the language of the instrument founding or endowing the charity it shall appear that such was the intention of the founder thereof."
  Now, Sir, I very much doubt whether there is a deed of trust in all England in which the founder of a school has used the word "exclusively," or any equivalent expression. The founders of schools usually think it quite sufficient to say what they do moan, without going on to say what they do not mean, to be taught in their schools. The clause therefore, as it is drawn, will extend the application of the Bill to all the schools belonging to the Church. And what will be its effect? To interfere with and control the reason and discretion of the Court of Chancery, and alter its rules of evidence and construction, and that in the most partial and unfair manner. Up

  733
  to this time those rules have been precisely the same in all cases. The will of a Churchman and the will of a Dissenter have been equally sacred in the eyes of the Court. In the Ilminster case the Court, applying the known rules of construction to the particular circumstances of that case, held that the words "godly doctrine" meant the doctrine of the Church of England; in Lady Hewley's case, by a similar application of the same rules, the Court held that the words "godly preachers of Christ's holy Gospel" excluded clergymen of the Church of England, and limited the benefits of her charity to Protestant Dissenters holding Trinitarian opinions. Now, it is remarkable that, of the four Bills which the hon. Member for Swansea has introduced on this subject, the two first had at least the merit of being impartial. Those measures were not confined to the endowments of the Church, but also embraced within their scope all those of the Dissenters. But I presume there was some apprehension among the promoters of this agitation that such a Bill if passed into a law would repeal, to a considerable extent, the Dissenters Chapels Act, which was passed a few years ago, and by which it was provided that if any Dissenting congregation had been in possession of any chapel or school for twenty-five years they should not be disturbed in that possession, unless on the face of the deed or other instrument declaring the trusts thereof it should appear that some different doctrines were to be taught there. Well, so it was, that in the early part of this year the hon. Member withdrew the Bill which dealt equally with Churchmen and Dissenters, just when it stood for a second reading, and substituted for it one which, while it did not touch the outside wall of the schools belonging to the Dissenters, proposed to deprive the members of the Church of England of schools of which they had had exclusive possession, not for twenty-five, but for three hundred years, unless they could show that by the language of their original deed of trust the doctrines of the Church of England exclusively were to be taught. Now, as to the manner in which these deeds and wills were framed. My hon. Friend has been searching very diligently into the voluminous reports of the Charity Commissioners, and has produced to the House some few instances of school trusts framed with great skill and care even in the time of Edward the VI. No doubt there were
  734
  skilful lawyers in that time, and those who resided in London or in some large provincial town might avail themselves of such assistance; but when we remember the comparative difficulty in those times of travelling and of communicating by letter, we shall rather expect to find, as we know to have been the case, that the great majority of the deeds and wills by which these small endowments were created were drawn up in very loose and vague terms, sufficient to show the founder's intention if you place yourself as the Court of Chancery does in the position of the founder, and read his words by the light of contemporary circumstances and subsequent usage, but not sufficient to show that intention if construed by such a narrow, rigid, and artificial rule as that which it is proposed by this Bill to introduce. Then, too, in how many cases has the original deed of trust been altogether lost; but the schools have gone on notwithstanding. Public notoriety, long established usage, and undisturbed possession have stood in the place of any deed; subsequent benefactors, in many instances the clergyman of the parish, have enriched with additional endowments the old charity about whose appropriation to church purposes there never had been any question; and now comes my hon. Friend and proposes to wrest from the Church at once the old foundation and the added endowment, unless it can be proved from the very words of the original founder that his school was intended for the inculcation of church doctrines and of those exclusively. He has argued that the founders of schools intended for the benefit of the Church of England were the more likely to be careful in guarding their endowments by clear and explicit declarations of their intention, in that period of time which came next after the Reformation, because they knew that their Church was a new Church lately set up; but with great submission that is a view of the matter which, though very common among Dissenters of the present day, did not prevail among Churchmen in the reign of Edward the VI. They considered the Church of England to be the same Christian Church which had existed for centuries in the land, set free from those corruptions by which, as time passed on, it had been more and more encumbered. No Christian man at that time contemplated the possibility of a multiplicity of Christian churches standing side by side in the land. And as to the suggestion that a careful founder

  735
  would provide by clauses against such a reaction as occurred in the reign of Queen Mary, it is surely sufficient to observe that, with an obedient Parliament at her command, Queen Mary would soon have cut through the strictest clauses which the wit of man could frame. Therefore, Sir, I contend that in these early deeds of trust, you have no right to look for that explicit declaration of intention which you would expect to find in similar instruments at a later period, and that the Court of Chancery is justified in holding that founders of schools who, living at a time when one religion, and one religion only, was allowed by law to be taught, expressed their desire that in schools which they founded religious instruction should be given, must be considered in the absence of all evidence to the contrary, to have meant instruction in those doctrines which had the sanction of law in exclusion of those which had not that sanction. But the argument does not stop there. I have said that the founder's intention is the first thing to which the Court looks. If that intention can be ascertained, it is sacred in the eyes of the Court, whether the founder were a member of the Church or a Dissenter. But if it be impossible to ascertain that intention, either from his own language, or from continued usage, then the Court of Chancery, considering, as Lord Justice Knight Bruce said, in the case of the Attorney General v. Cullum, that any scheme of education without religion would be worse than a mockery, and having no other standard of doctrine to which it can resort, except that of the Established Church, requires that religious instruction shall be given, and that the teacher by whom it is given shall be a member of that church. Is there anything unreasonable in that rule? That it is inconsistent with perfect religious equality, I freely admit. But so long as you have an established church, can you have such equality? You may have perfect religious liberty, you may have perfect equality between rival churches and sects in respect of civil rights and privileges; but so long as you have an Established Church, the doctrines of that church must have a preference in the eyes of the law over all others. That no other course is open to the Court is clear from the Act passed in the 19th year of George III., for the relief of Protestant Dissenting Ministers and Schoolmasters, by which, after declaring that Dissenters who made certain declarations were not to be prose-
  736
  cuted for teaching and instructing youth as tutors or schoolmasters, it was nevertheless in the third clause provided that the Act should not extend to the enabling of any person dissenting from the Church of England to hold the mastership of any endowed school, unless the same should have been founded since the first year of William and Mary, for the immediate use and benefit of Protestant Dissenters.
  Well then, Sir, having humbly endeavoured to vindicate the principles by which the Court of Chancery is guided in declaring the purposes to which these educational endowments are applicable—first, in those cases in which the founder's intention can be ascertained; and secondly, in those cases in which it cannot be ascertained—I must add a few words on the complaint which has been made that by the practice of the Court of Chancery Dissenters are in some cases excluded from being trustees even of those schools, in the management of which they had in past time been allowed to share without any objection being raised to their doing so. Sir, it is with great pleasure that on this branch of the question I find myself in complete accord with the hon. Member for Swansea. He has declared in a spirit of justice and candour which does him the highest honour, that so long as any endowment is legally appropriated to Church purposes, he cannot support any proposal to invest Dissenters with a share in the control of that endowment, and that for that reason he expressly declined to give any support or sanction to the Bill introduced last year by Lord Stanley of Alderley in the House of Lords, under which, if it had passed into a law, Dissenters would have been admissible as trustees of almost all the Church schools in the country. Such a law would have been altogether opposed to all the principles of equity. In its administration of trusts the Court of Chancery has regard — first, to the purposes to which the trust fund is appropriated; secondly, to the persons who are to benefit by the carrying out of those purposes. The trustee of the fund is only so much legal machinery for carrying out those purposes for the benefit of these persons; and however honourable and desirable the office of trustee may be, no person can be allowed to claim it as a right or privilege to himself if his obtaining it will in any the least degree prejudice or endanger those objects for the sake of which the office itself exists. In the case of the Norwich

  737
  Charities (2 M. &c C. 305) Lord Cottenham, than whom there never was a Chancellor more anxious to extend the benefits of the old endowments to Dissenters, wherever it could be done without injustice, said—
  "The Master in selecting new trustees has with my entire concurrence, whenever the charity was for Church purposes, selected as trustees persons who were members of the Church of England. It has been thought proper that, when the object of the trust has been exclusively connected with one religious party, the trustees who were to have the control over it should be of the same religious party."
  That that is a just and reasonable rule I can hardly think that even the Dissenters themselves, when they have fairly considered it, will be disposed to deny. It is very true that many cases may be found, in which persons who were actually Dissenters have, on the filling up of vacancies in the trust by surviving trustees, been admitted to share in the management of charities which belonged to the Established Church. Nothing can be more natural than that such a thing should often happen. The Dissenters in this country, to use a modern expression, are not ticketed; in the eye of the law they are, except when they wish to claim any privilege or exemption granted to them as Dissenters, members of the Church of England. When the name of a respectable neighbour is proposed as a new trustee, it is an invidious thing to ask questions about his religious opinions, and, knowing as practical men how these matters are often settled by the farmers and tradesmen of a parish, we can easily see how, without any great blame to any one, it has come to pass that persons dissenting from the Church of England have been admitted, not in their character of Dissenters, but simply as respectable inhabitants of the place, to be trustees of Church schools. But it would be quite another thing if, because there may have existed in particular places, without any contention or discussion, such laxity of practice, the Court of Chancery were, in a suit for the appointment of new trustees, to appoint as trustees of endowments applicable only to purposes connected with the Church of England persons who admitted themselves to be Dissenters from that Church. I need hardly ask what would be the feeling of Dissenters, if members of the Church of England were nominated by the Court to be trustees of their schools; of the Roman Catholics, if Protestant; of the Jews, if Christian trustees, were so forced upon them.
  738
  Sir, the hon. Member for Stamford has already drawn the attention of the House to the negative character of this Bill. In the schools to which it will apply the doctrines of the Church of England are no longer to be taught exclusively, but what other doctrines may be taught along with them, or instead of them, the Bill does not inform us. I listened very attentively to the speech of the hon. Member for Swansea, but I could not discover that he proposed any substitute for the present system, except that from some of his observations I inferred, that he is one of those who, to use his own words, prefer general to special religious instruction. I have not myself the smallest doubt, and I believe my hon. Friend is of the same opinion, that the practical result of his Bill will be to establish in all these schools what is called the secular system, that is to say, a system of mere secular teaching without any religious instruction at all. I am sure that that is the necessary logical result to which the adoption of the Bill must lead. There is no natural halting place between the denominational and the secular system. In voluntary associations persons whose opinions do not differ very widely may combine for the purpose of teaching those points on which they agree, leaving those on which they disagree for special instruction at home. As an example of such combination, we may look at the British and Foreign School Society, in which Churchmen and Protestant Dissenters, coinciding in opinion to a very considerable extent about the more important doctrines of Christianity, have agreed to teach in their schools the authorized version of the Scriptures without catechisms or other special formularies. Well, that is a very useful society, and I heartily rejoice that the Dissenters have so good an organization for providing their children with good schools and well-trained teachers. But clearly that is not a basis upon which, excluding as it would the Roman Catholics and the Jews, the Legislature could take its stand. Nor, if you once give up the denominational system, as it is called, in the vain hope of satisfying the scruples of different sects, will you find any place at which you can stop short of that secular system which, while it consults the feelings of all sects by striking out everything to which they can object, gives real satisfaction to none of them, because it puts out of sight those subjects the teaching of which they all consider to be the chief end and

  739
  object of education. Sir, this is not a new question in this House; on two former occasions have the advocates of the secular system endeavoured to force that system on the country, first, in our elementary schools in 1847, and secondly, in our universities in 1854. On both occasions they were defeated by the decision of the House; on both occasions, I believe, that decision was ratified by the voice of the country; and I am confident that, as soon as the real tendency of this measure is understood, its condemnation will be almost universal. We are told by the preamble of the Bill that its object is to throw open the schools to which it will apply to a greater number than at present. Now, if the Bill is to take effect by substituting some other system of religious teaching for that of the Church of England, I ask what is the religious body whose teaching will be more generally acceptable to the people of England than that of the Church? I will admit for the sake of argument, although it is known to be matter of controversy, that the Dissenters and Roman Catholics combined constitute one-half of the population; still it will not be denied that the members of the Church are vastly more numerous than those of any other one religious community, and I will venture to add that the Church of England is the most comprehensive and the least exclusive body of Christians to be found within this realm. But if the Bill is to take effect by eliminating all religious instruction, and substituting the secular system in its place, then I believe that Dissenters and churchmen will be alike opposed to the change. I am confident that the religious Dissenters who have petitioned in favour of the Bill would not have done so, if they had understood that the result of its adoption will be to introduce a purely secular system of teaching in the schools to which it will apply. If there is one thing about which the people of this country of all classes are more especially anxious, it is that their children should have a good religious education; and speaking generally—there are, no doubt, exceptional cases—but, speaking generally, I believe the Protestant Dissenters do, in parishes where they have not schools of their own, send their children without fear or scruple to the schools of the Church of England; and I feel quite sure that they would far rather send them there, to be taught the Bible and all the great truths which it proclaims, than to schools where they might receive, perhaps, very excellent
  740
  instruction in arithmetic and history and geography, but from which the Bible would be excluded. I must remind the House that the Court of Chancery, where-ever it is not restrained from doing so by the will of the founder, requires certain relaxations to be made by the trustees of church schools in favour of Dissenters, exempting the children whose parents wish them to be so exempted from the obligation to attend the parish church or to learn the church catechism. In the wisdom of such concessions to the feelings of Dissenters I entirely concur, and to show the House the result of such a system, where it is honestly carried out, I may refer to an account drawn up some years ago by the present Bishop of Manchester of King Edward's school at Birmingham, of which he was then the master. The governors were all members of the Church of England, and the doctrines of the Church were taught in the school; but parents were allowed to ask that their children might be excused attendance during those hours which were more especially devoted to religious instruction. The result was, that that exemption was not asked, except by a few members of the Jewish persuasion, although the school contained more than 1,100 boys, of whom about one-third were the children of Dissenters. Therefore I must respectfully ask again to express my strong conviction that this measure will be not only a most unjust spoliation of the Church of England, but will also be a positive injury to the Dissenters, by substituting for the present system of instruction one far less acceptable and far less beneficial to them. I will add only one consideration of a practical nature, and that is that the tendency of the measure will be to lower the character of the teachers in our Endowed Schools. At present many young men of thoughtful and earnest characters choose for themselves the occupation of a teacher from higher and purer motives than the mere expectation of pecuniary gain. They seek of course a livelihood for themselves, but they hope in obtaining it to be instrumental in preparing their scholars for another life, as well as for this. But if religious instruction be discarded and a secular system adopted, those better and higher motives must of necessity be taken away, and you must expect that the general tone and moral standard of the teachers, as a class, will be lowered in consequence. For these reasons, Sir, it appears to me that the Bill, if allowed to

  741
  pass, will have very mischievous effects, and I therefore beg to second the Amendment of the hon. Member for Stamford, that it be read a second time this day three months.
  THE ATTORNEY GENERAL: I have listened with much pleasure to the speech by which the Amendment has been introduced by the hon. Member for Stamford (Sir Stafford Northcote), and I can assure the House that if the law as it now stands admitted of this question being dealt with by the Court of Chancery in the same spirit of liberality, there would be no need of legislation upon this subject. But it is because that power does not exist, because there are artificial presumptions and rules of construction binding upon courts of justice, and compelling them to administer these charities in a manner which, if I am not mistaken, this House will not think consistent with public interests, that I think some further legislation is required. I may say, too, that this Bill is justified by the complaints which have been made by many Judges who have had to administer the law upon this subject, that they have been compelled to approve schemes of exclusion founded upon principles incompatible with enlarged views and a sense of public utility. Admitting that there might be a necessity to alter the language of the Bill, that the difficulty of laying down precise rules upon the subject of whether Dissenters are to be excluded or not is great, still those are matters which can be considered by a Committee of this House, or, if it be preferred, by a Select Committee upstairs. I will endeavour briefly to point out the necessity for some legislation. There are certain artificial rules and presumptions which prevail in the Court of Chancery upon these subjects. First, it is assumed that all educational charities founded before the Reformation must now be of necessity confined exclusively to members of the Church of England. That is an arbitrary principle founded on the presumption that, as at that time no difference of religious opinion was permitted by law, these educational foundations must be assumed to be intended wholly for the benefit of members of the English Church, in its then Romish form, and now to belong to the same English Church in its Reformed and Protestant character. That, I think, is an arbitrary inference which the House, I hope, will not consider it desirable to perpetuate. By parity of reasoning the next construction, by which the
  742
  Courts feel themselves bound, is that all schools founded after the Reformation and before the passing of the Act of Toleration must be administered for the exclusive benefit of members of the Church of England because during that period no other form of religious worship was permitted. That, too, is an artificial presumption, which may well be got rid of. I think that both those principles were swept away by the different policy which was introduced by the Act of Toleration, and they ought not to be continued longer. The third artificial rule is, that where an educational charity is established without anything being said about religious instruction, or that the nature of the religious instruction is not defined, the Court of Chancery presumes that religious instruction must be intended, and that it can only be given according to the form of which alone the court is cognizant—namely, in. conformity with the principles and doctrines of the Church of England. There is another rule, which is more mischievous still, and that is if a school be founded with a direction that the schoolmaster shall be a clergyman in holy orders, the Court of Chancery will make no regulation concerning religious instruction, but will leave it entirely to the master. The practical result of that is that the school may be presided over for a time by a clergyman of liberal views, who may be succeeded by another clergyman holding quite different views; and the consequence is that while one admits the children of Dissenters to the school the other excludes them, or that the character of the religious instruction as regarded Dissenters might vary very much from time to time. These are principles which are inconvenient to the public, unwise, and being invested with a peremptory character, they are incapable of relaxation. The House has had some instances of the necessity under which the Court of Chancery has found itself placed to adhere to those rules; and I will mention a case that occurred while I had the honour of being a law officer of the Crown under a former Government, when I strove to introduce a more liberal administration of these charities. I refer to the Chelmsford Grammar School. A scheme had been prepared under the direction of the law officers of the Crown, in which, after providing for religious instruction according to the doctrines of the Church of England, it was proposed that "no child whose parents or guardians upon conscien-

  743
  tious grounds object thereto shall receive instruction in the Holy Scriptures, or Catechism, Liturgy, doctrines, or discipline of the Church of England; provided that every such objection shall be made in writing in the first instance to the head master, who shall communicate the same to the Board of Management." It came on to be discussed before Vice Chancellor Wood, who felt himself not at liberty to approve the scheme with that particular provision. A scheme was therefore settled upon an entirely different footing, and the result was that the children of Dissenters were excluded altogether from the benefits of the charity. In the decision upon that occasion it was laid down
  "That religious instruction being a, necessary part of education in a grammar school, and there being reason to believe that such instruction was originally intended to be according to the doctrines and principles of the Church of England, the Court could not sanction the insertion of any clause in the scheme exempting those scholars whose parents conscientiously objected thereto from receiving such instruction."
  Here the artificial presumption prevailed that because the school was founded in the reign of Edward VI., the words "godly learning and instruction" must be construed with reference to the particular tenets then prevailing. In the case of the Stafford Charities, which came before the Master of the Rolls, when it was sought to introduce two or three Dissenters upon the Board of Management, the learned Judge, although very well inclined to take a liberal and enlarged view, lamented his inability, having regard to the state of the law, to admit them; and it was held that a grammar school founded and endowed by Edward VI. is substantially a Church of England school, and that members of the Church of England alone should be appointed trustees. If the House says it will adhere to that rule, that schools founded at that time, when there was no toleration, shall be conducted upon a principle of intolerance, even in these days of toleration, then I admit no change is necessary. But if, as I believe, the interests of the Church itself will be best served by not administering these charities upon such narrow and exclusive principles,— if, as I believe, the intention of the founders are not really to be arrived at by reference to extraneous circumstances— such as the intolerance of the State over which he had no control, and which was wholly independent of his intention—then
  744
  I think the House will agree with me that some legislation is necessary. We acknowledge that if the intention of the founder can be shown without recourse being had to these presumptions, and that that intention was to make the school exclusive, then it must remain confined to the Church of England; but to take these foundations, and attribute to them a character arising only from the intolerance of the times, is not a wise rule of administration, not conducive to the real interests of the Church, and opposed to all true principles of public policy and the dictates of Christian charity. These are the grounds upon which I conceive these rules require to be modified by the Legislature. Whether this Bill will be successful in defining the real evil and applying the proper remedy is a point which I admit ought to be regarded as open to consideration. I am not in the least degree desirous of abandoning the great duty of imparting religious instruction, and my hon. Friend who imagined that would result from the passing of the Bill drew a conclusion which is not warranted by anything in the Bill. All it says is, that religious instruction shall not in these general cases be instruction according to the doctrines of the Church of England alone; but it leaves the obligation of accompanying education with religious instruction untouched and unimpaired. That obligation might be carried out in a variety of ways, but at present the only mode of doing it was by teaching the catechism and the whole discipline of the Church of England. Of course, the practical result is that the children of Dissenters are excluded from these schools. I do not consider we are in the least degree impairing the obligation to impart religious instruction by saying that such religious instruction shall not be necessarily of an exclusive character. The true difficulty is that which has been referred to by the hon. Baronet the Member for Stamford—that we should have satisfactory proof of what were the intentions of founders; for it is equally essential to the Church and to Dissenters that the intention of founders should be observed. The Bill proceeds upon that principle, but not admitting that intention shall be deduced from extrinsic circumstances wholly independent of the actual intention. The latter point was brought out in the Ilminster case. It is true the decision in that case was in conformity with the rule of the Court of Chancery; but will not the House agree that it was

  745
  what it has been described, "an aggression upon the rights of Dissenters," for Dissenters had been admitted trustees of that school for 150 years previously, and usage, therefore, which the hon. and learned Member for Herts (Mr. Puller) sought to avail himself of for his own position had sanctioned those appointments? The school had been governed in this way without injury for so long a time, and yet these artificial rules are so imperative that the Court of Chancery could not give effect to usage, and declared that the trustees must be members of the Church of England. I do think these rules require modification. I admit we should always adhere to the intention of the founders; but I say we should obtain our definition of those intentions from legitimate proof, and not ascribe intentions from extrinsic circumstances which do not apply to them. Without troubling the House further, I may say these are the grounds upon which the Bill, although open to criticism, does deal with a great want. I believe legislation wisely applied will redound to the advantage of the Church of England, and in that spirit I shall give my vote in favour of the second reading, with the understanding that the language of the Bill will remain open to alteration in order to accomplish the object which it is intended to effect.
  SIR HUGH CAIRNSsaid, that the subject which the hon. Member for Swansea had brought under the consideration of the House in this Bill was one the importance of which could not be overrated. For his part, having had considerable opportunities of examining the question, he should have been very glad if, instead of introducing a Bill so open to objection as that before them, the hon. Gentleman (Mr. Dillwyn) had brought forward a proposition for an inquiry into what he (Sir Hugh Cairns) believed to be the only just ground of complaint that at present existed as regarded the Dissenters in this country. His hon. and learned Friend the Attorney General held out the hope that in Committee this Bill might be altered to what it was not now; but the second reading was the stage of the Bill in which its principle ought to be decided. His hon. and learned Friend had laid down two or three principles, every one of which might be made the subject of a Bill, but any one of which was inconsistent with the others. His hon. and learned Friend had spoken of the great hardships inflicted in the Ilminster case, where for 150 years trustees had
  746
  been appointed without reference to their religious opinions. Now, was this the principle which his hon. and learned Friend wished to see established—that where there was no express statement in the deed of foundation the usage of a certain number of 3'cars should be a criterion with regard to the use of the charity in future? If his hon. and learned Friend meant to do that, then he (Sir Hugh Cairns) must observe that the Bill which he was about to vote for was quite at variance with his intention; because, whereas there had been in this country for some hundred years a certain usage in respect to the construction to be put on educational foundations, the House was now asked to overrule everything that had hitherto been done, and follow out a new principle indicated by his hon. and learned Friend and stated in the second paragraph of this Bill. Therefore he must call on his hon. and learned Friend to "elect," as the saying was, and declare on what principle he was going to proceed. If the precedent laid down in the Dissenters' Chapels Bill were followed up by the framer of the Bill he could understand an application to the House to relieve the Dissenters in that way; or if he were going to introduce a measure for the appointment of trustees without regard to religious belief in cases where there was nothing in the trust-deed to negative that course, that might be a proposition worthy of consideration by the House; but that was not the Bill they were now discussing. When the Ilminster case was cited the House should understand that there was nothing in the Bill which would affect the decision in that case. But what was really the case with respect to these charities? There were in existence in this country a great number of educational charities, which were at first the results of endowments of such low amounts as £5 or £10, given for the payment of schoolmasters—in these cases the Courts had held, whether rightly or wrongly, that the schoolmaster must be a member of the Church of England, and give religious instruction in accordance with the doctrines of that Church. Year after year an increase had been made in the amount of those foundations by subscriptions, donations, and legacies, made by various persons, on the faith of those schools being Church of England schools. So that in many cases, what was almost contemptible at first had become by accretion a large and important charity, the additions being

  747
  made on the understanding that it was in principle and practice connected with the Church of England How did his hon. Friend propose to deal with such a case as that? Why, he proposed to look to the original foundation deed, and see whether, according to a construction now to be introduced, there was anything to show that the charity was to he exclusively devoted to the Church of England, and if that should not distinctly appear, then the wishes of all subsequent donors were to he disregarded, and their funds confiscated by applying them differently from what they had intended. Which principle, then, did his hon. and learned Friend, the Attorney General, intend to adopt—for he could not have both—the principle included in this Bill or the principle of usage? His hon. and learned Friend said that the advocates of the measure did not desire to abandon the duty of religious instruction. But what were they to do if the Bill passed? If Parliament declared that religious instruction should not be given according to the doctrines of the Church of England exclusively, either they must give no religious instruction at all, or else they must give religious instruction according to the doctrines of every possible sect that might be represented in the school. They could have no other alternative. Instruction must be either according to the doctrines of the Church of England exclusively, or according to the doctrines of every sect, or there would be no religious instruction at all. His hon. and learned Friend, wishing to uphold religious instruction, would, if this Bill passed, find himself disappointed, for it would be impossible to give any religious instruction at all. The first thing the House should thoroughly understand was what was the principle on which the Court of Chancery had proceeded. The Court had never done anything so foolish and absurd as to construe the deed of foundation as implying something not to be found on the face of the deed itself. It took a deed founding an educational charity, and it proceeded on it in the same way as it did with any other deed—it wont simply on the deed itself. But then it looked also at the time in which it was made, at the circumstances of the person who made it, at the use of words at the particular date, and having found that a word meant something then which was different from its meaning now, the Court construed the word according, not to its present usage, but to its meaning when it
  748
  was employed in the deed. It was in the power of the Legislature to modify any doctrine of any court in the country; but it must be remembered that they could not compel one construction to be placed on a deed when it endowed a school and another when it endowed an almshouse. The present construction must be changed in all deeds or the construction must be pre-served in all. In Lady Hewley's case words were used of the most vague kind, if read as we read now. It was an endowment, "to provide for poor and godly preachers of Christ's Holy Gospel." Looking at these words according to the present usage, clearly they would not exclude the Church of England; but the construction of the Court, by which Dissenters now hold the charity exclusively from the Church, was, that looking to the use of the words at the time they were employed in the deed, it was clear that they meant something different from what they now meant, and that in point of fact they were intended to point out Nonconformists, as distinguished from members of the Church of England. And the Court of Chancery, acting on that principle, handed over the whole of the funds of the charity to the Dissenters, and deprived the Church of any share in it. Were the Dissenters desirous to undo what was then done?—because they could not maintain the principle contended for by the introducer of the Bill unless they did—they could not say that the Court was in one case to construe words as they were originally employed, and in another to construe them according to present usage. His hon. and learned Friend had referred to the Chelmsford case. In the case of King Edward's Schools he said the Court of Chancery had decided that because they were instituted after the Reformation, that upon that ground, and upon that ground alone, they were grammar schools for the Church of England. The Court had not done so. But this they had done. It was found that, with regard to some of them, they were raised on the foundation of extinguished Church property, and that with regard to all of them, there was the provision that the Bishop of the diocese was to frame the rules of the schools, and to superintend them as visitor; and, consequently, the Court of Chancery said, when they found that religious instruction was to be given, that a Bishop of the Church of England was to make the rules and be the visitor, they

  749
  held that the religious instruction must be such as a Bishop could indicate and sanction, and, therefore, that it must be according to the doctrines of the Church of England. Was that going out of the deeds He said it was not. It was finding the intention of the founder in the four corners of the deed, pursuing only a fair judgment in construing it. The first clause of the Bill now before the House provided that no endowed school should be considered a Church of England school exclusively, unless from the language of the deed, founding or endowing the charity, such should appear to be the intention of the founder. Now, if the Bill were without a preamble, and the question were simply whether the Bill should pass or not, he would not object—it might be allowed to pass with the greatest safety; for it simply declared what was the present doctrine of the Court of Chancery. But he could not accept the Bill, because its promoters said it was their intention to alter the law; and he said, if they altered the decision of the Court with regard to the construction of deeds concerning educational charities, they altered it with regard to the construction of all deeds. The hon. and learned Gentleman had alluded to the Chelmsford case, and had given a reference to the extent to which in modern times the Court of Chancery had introduced what were called "conscience clauses" into charitable schemes. He differed with his hon. and learned Friend as to the Chelmsford case. There was no doubt that the "conscience clause" was not inserted, but the reason was that the Vice Chancellor, Sir William Page Wood, thought that the visitors had the control, and that he could not interfere with them. But the course taken with regard to "conscience clauses" was well worthy of the consideration of the House. The Court had given decisions in two classes of cases. In one, the founder had provided simply that "religious instruction" should he given; in the other, it was expressly said that every scholar should be taught the Church of England catechism. The Court of Chancery decided that in the latter cases the school was a Church school, and that every scholar must learn the Church catechism; and in the other, where merely religious instruction was to be given, that it was not compulsory to teach it to the children of Dissenters, and they therefore introduced the "conscience clause." He would read a conscience clause—one set-
  750
  tled by Lord St. Leonards, when Lord Chancellor, in 1852, with his own hand, and after consulting the authorities and bestowing great care on the subject. It was for the Basingstoke School, and it was as follows:—
  "That religious instruction shall be given by the master by reading the Scriptures and the Liturgy, Catechism, and Articles of the Church of England, to such of the boys whose parents are in communion with the Church of England, and to such other boys whose parents or person in, loco parentis shall not object to their receiving it."
  There were more recent clauses; and within the last year or two there had been raised questions such as that in the Chelmsford case, whether objection might not be taken by the visitors to the conscience clauses. There was no doubt that upon appeal to the Court of Chancery, when the foundation deed permitted, conscience clauses might be introduced; but he thought it would be desirable if, without going with each individual case into the Court of Chancery, some general measure could be introduced, by way of amendment, perhaps, to the Grammar Schools Act, to enable, either through the medium of the Charity Commissioners or some short and inexpensive process, such clauses to be introduced. This, to his mind, was a grievance, of which the Dissenters might justly complain; but this was a grievance which the Bill did not touch. The remedy could, he thought, only be applied on a large view of the foundations, the rights of visitors, the existing schemes, and how they would be interfered with by the contemplated measure. He thought it would be desirable that something equivalent to a conscience clause should be introduced wherever the foundation deed would permit this to be done; and if there were any cases in which it had been the practice to choose Dissenters as trustees, he would even be willing, supposing the foundation deed to be silent on the subject, to see the principle of the Dissenters' Chapels Act applied. But these things could only be done by means of a Bill in a form less vague than the present, and after due inquiry. He trusted, therefore, that the House would not pass the second reading of this Bill, in order to have it converted into some other Bill in Committee; but that it would wait for the introduction of a more definite measure, or the appointment of a Committee or Commission of Inquiry.
  MR. MELLORsaid, that although he thought that the Bill was ambiguous in language, and possibly open to objection in point of form, he felt indisposed to vole against its second reading, since the necessary Amendment might be made in Committee. The principle decided by the Dissenters' Chapel Act was that where a sect had possessed a chapel twenty-five years their right should be recognized without reference to the original foundation, and this settled a vexed question between the Presbyterians and the orthodox Dissenters, and did not at all affect the Church. The Ilminster case had been alluded to, and he was glad to find that the principle decided in that case was not defended by any one. In the reign of Edward VI., before the establishment of the liturgical formularies at present in use in the Church of England, two persons, inhabitants of the town of Ilrainster "desiring the virtuous education of youth in literature and godly learning, whereby they should better know their duty to God and to the King's Majesty," assigned certain property to trustees, in order to provide "a discreet person, of good behaviour," &c, as schoolmaster. The deed then provided that the surplus should be devoted to the repairing of roads and watercourses, and also for the appointment of new trustees, who were to be "honest persons of the parish of Ilminster." Here there was no question as to the teaching—the schoolmasters had always belonged to the Church of England. The simple question was, whether Dissenters could, by construction of the context, be brought within the description of "honest persons of the parish of Ilminster;" and the Lords Justices held that they were constrained to decide that this being a foundation established in the reign of Edward VI., Dissenters could not come within the denomination of "honest persons." For 150 years Churchmen and Dissenters had been joined in the administration of the trust funds, and the surplus funds had been applied to the highways and watercourses; yet the decision was, that although there was a very large surplus thus applied, yet that because it was connected with a trust for teaching "godly learning" they were constrained to decide that Dissenters were not "honest persons" within the meaning of the foundation deed. Anything more injudicious or more fatal to the interests of religion and of the Church of England than the conduct of the clergyman who promoted that suit he could
  752
  scarcely imagine. The Charity Commissioners had been applied to on the subject, and they decided that Dissenters must be appointed, and two Unitarians were appointed accordingly; and yet this High Church clergyman, presuming that, upon technical grounds, the Court of Chancery might hold that Dissenters were not the "honest people" contemplated by the founder, raked up the suit. The Master of the Rolls had said that "this could not be called a charity exclusively for the Church of England. The school undoubtedly was; but the surplus of the funds was for highways and watercourses, and this could not be considered as an insignificant part of the charity." In this state of things the clergyman interfered, and obtained a decision of the Court of Chancery that Dissenters were not eligible as trustees. He (Mr. Mellor) did not think that any Gentleman on either side of the House would get up and say that this was a state of things that ought to continue; and without endorsing at that moment the particular language of the Bill, he saw no reason why the House should not go into Committee on it. Hon. Gentlemen on the Opposition side of the House should recollect that it was not very long since they objected strongly to the refusal of their opponents to go into Committee on another Bill. The supporters of the present measure wished to make no aggression on the Church of England, but they wished to abolish that artificial presumption of the Court of Equity, by which, looking back to the period when dissent was not tolerated, the intention of the founder of the charity was taken to be identical with the artificial presumption.
  SIR GEORGE LEWISsaid, that he should have had no difficulty in coming to a conclusion if of the two speeches, delivered by the late Solicitor General and the present Attorney General, he had only heard one and not the other. The present Bill professed to be introduced to mitigate the effects of certain decisions of the Court of Chancery, and two most eminent and learned practitioners in that Court, either qualified to guide this House by his own opinions, so entirely differed with respect to the effect of the decisions of the Court, that he confessed that he felt the utmost difficulty in coming to any conclusion on the subject, and he doubted not the House was in a similar position. As he understood, it was plainly stated by the hon. proposer of the Bill, who explained it in a

  753
  very conciliatory manner, and without overstating his case, that he introduced the measure for the express purpose of obviating the consequences of certain decisions of the Court of Chancery. Well, how could the House safely and prudently come to a conclusion on the Bill if two most eminent lawyers differed as to the effect of those decisions? Under these circumstances, he thought that the hon. Members who had listened to the present debate must be anxious to know what was the precise evil which the House was called on to remedy. That there was evil was admitted on all hands. The late Solicitor General laid it down that there were evils which he would propose to remedy, admitting that when the decisions of the Court of Chancery interfered with the existing usage, and when they proceeded on such principles as that embodied in the Ilminster case, there was ground for interposition on the part of the Legislature. The hon. and learned Gentleman also said that he should be in favour of the introduction of some general measure, which would enable the Commissioners of Charities to introduce "conscience clauses" in certain deeds. These would be most important changes in the law, and they were recommended in the speech of the hon. Gentleman the late Solicitor General. Therefore, it was quite clear from the admissions made on the other side of the House that the present state of things as governed by the principle established by the Court of Chancery, whatever that principle might be, produced evils demanding a remedy. Still, he confessed that he felt great difficulty in coming to a decision on the Bill, as it stood at present for the consideration of the House. The decisions which governed the Court of Chancery in this matter were not embodied in any form to which that House could refer, and two learned Gentlemen differed so materially as to the principies which govern the Court of Chancery that it was impossible for a person unlearned in the law to reconcile their arguments. Under these circumstances he did not deem the matter ripe for the decision of that House; and he would suggest to the hon. Proposer of the Bill to consider the propriety of not pressing this matter to a decision at present, but of allowing it to be referred to a Select Committee, which, in the first place, might seek to ascertain distinctly the principles which governed the Court of Chancery with respect to the construction of deeds of
  754
  charitable endowment; and, when those principles were distinctly and authentically ascertained, might next proceed to consider what remedy should be applied to the evils which were admitted on both sides of the House to exist. If the House should adopt that course he thought they would arrive at a practical conclusion more rapidly than by attempting to proceed with this Bill. He thought there was much force in the observations of the late Solicitor General, that, even if the House should agree to read the Bill a second time, they would in fact be merely affirming a naked principle, and that they would go into Committee with the object—which he regarded as most objectionable—of framing a Bill instead of passing judgment upon a Bill already existing. This course would occasion such delay that, during the present short Session, it was clearly impossible that a measure could receive the assent of Parliament. If, however, a Select Committee were now appointed, the matter might be more speedily brought to a common understanding, and there might be some hope that even during the present Session a Bill might be passed to remedy the most pressing and urgent evils which were now the subject of complaint.
  MR. A. MILLSsaid, that if he could agree with the view which had been stated, that the Bill was intended to inaugurate a system of secular education, or an aggression upon the Church of England, he should have no hesitation in opposing it. But he confessed that he could not entertain that view of the question, which was one upon which it appeared to be admitted on both sides, that a grievance, calling for some legislative remedy, existed. One point in particular he was anxious to call attention to. The marginal note to the third clause was to this effect:—"No schools to be deemed Church of England schools unless so declared by their founders." Now, if the Bill passed in its present form, it would work great hardship. In 1522, before the Reformation, a college or school was founded by Bishop Foxe, who said nothing about religious education, in the town he (Mr. Mills) represented (Taunton). The endowment, however, was so minute that the school was dying a natural death; in fact, it had not a practical existence until five years ago, when a clergyman of the Church of England—the minister of the parish—re-endowed it, and it was now a flourishing and prosperous institution. In his deed of en-

  755
  dowment the clergyman had inserted this clause: that if at any time the teaching of the school should cease to be exclusively according to the principles of the Church of England, his endowment should go to the Somerset County Hospital. So that the consequence of the present Bill, if it were passed in its then shape, would he that the school he referred to would absolutely cease to exist. He wished particularly to call the attention of the hon. Member for Swansea to this point; but if the hon. Member pressed the Bill, he should not object to go into Committee upon it on the understanding that words should be inserted to meet cases of this nature.
  SIR ERSKINE PERRYsupported the second reading of the Bill. He thought the Home Secretary (Sir George Lewis) had dwelt too much upon the legal difficulties connected with the question. He had attended very carefully to the arguments of the Attorney General and the late Solicitor General, and he thought there was no very subtle question at stake. Hero was a practical grievance, for which this Bill supplied a remedy. Recent decisions of the Court of Chancery had established that there would be no education without religious instruction, and that, in the absence of provision to the contrary, that instruction must be that of the Church of England. The Court had held that the words "godly learning," employed at the time of Edward VI., must mean the teaching of the Church of England. No such law would have a chance of passing the Legislature; yet the Court of Chancery had in effect enacted such a law. Moderate men on both sides were pretty nearly unanimous as to what should be done in this matter. They wished to prevent any ill-feeling on matters of this kind between Churchmen and Dissenters, and to deal with the question not as lawyers or Churchmen, but on grounds of public policy.
  MR. WALPOLE: Sir, I think it desirable that the House should understand exactly the position in which we arc placed. The Home Secretary has thrown out a suggestion that the Bill should be withdrawn, and that the whole matter should be referred to a Select Committee; but the hon. and learned Gentleman who has just spoken wishes to affirm the principle of the Bill on the second reading, and before its withdrawal. Now before I proceed, I should be glad to know from the hon. Gentleman who has charge of this Bill, whether he intends to accede to the proposition of
  756
  the Home Secretary? [Mr. DILLWYN intimated dissent.] If the hon. Gentleman does not accede to that suggestion, I will support the proposition for referring the subject matter of the Bill to a Select Committee; but if he does not, I think I can show him and the House that he is asking the House to affirm a principle to which it ought not to listen for a single moment; and that the Attorney General and the law officers of the Crown ought to be the first persons to dissuade the House from assenting to that principle. The principle attempted to be affirmed by this Bill is such an alteration in the law of evidence, as that it will not be applicable to all classes of the community, but to one class only. Now, I ask whether the Government are prepared to sanction such an alteration of the law of evidence? If the Government reply in the affirmative, I tell them the consequence will be that we shall have one law of evidence for one class of the community, and a different law for another class, and such a consequence has never been admitted. If, however, the Government state that they propose—as I believe is the case—to have one law of evidence with reference to this particular subject, applicable to all classes of the community—a law of evidence founded on the principle of the Dissenters' Relief Act—then there will be no opposition on my part to such a proposition. The hon. and learned Gentleman who last spoke said, that the object was to remedy a great grievance; but the grievance he pointed out will not be remedied by this Bill. In the next place, it must be remembered that the preamble of this Bill does not coincide with the enacting clauses; and, in the third place, it must be remembered that the statements which have been disseminated throughout the country as to the nature of the decision of the Court of Chancery do not accurately represent the decision of that Court, and in consequence of the erroneous statement you are asked to affirm propositions totally at variance with the facts of the case. Even my hon. and learned Friend the Member for Nottingham (Mr. Mellor) has gravely told the House that the Court of Chancery has decided that a Dissenter cannot be a trustee for a charitable institution, because he is not "an honest man." ["No."] Well, the hon. and learned Gentleman left the House to infer so. The hon. Member for Birmingham (Mr. Bright) seems to imagine I am stating that which has not been asserted on the part of the promoters of the Bill.

  757
  But is that so? My hon. and learned Friend quoted very nearly the words of the petition, in which I find it stated, "that from the recent judicial decision in reference to the Ilminster School trusts, all Her Majesty's subjects who are entitled 'Protestant Dissenters' are disqualified from acting as trustees or administrators in all cases in which the persons filling those offices are required to be honest and discreet persons, capable of teaching godly as well as other education." Now, that is the statement which has been disseminated throughout the country; but what has the Court of Chancery decided? I speak in the presence of the Attorney General, and of the late Solicitor General, who are better able to instruct the House on this subject than any other persons, setting aside the Judges, and I say the Court of Chancery has simply decided that according to certain rules of interpretation which they apply to instruments, drawn from the circumstances of the times in which those instruments were executed, the inference must be drawn that a charity was founded with a given object, although, had the circumstances attending the foundation been different, it might have been decided that it had been founded with another object. In other words, the Court of Chancery has simply decided that I wish you to maintain as the law of evidence—that you must look, in the first instance, to the instrument creating the trust as the evidence to determine the nature of the trust; but if there is ambiguity in the instrument, or if it is silent as to particular points, then you must look to the circumstances of the time or to the usage which has gone along with that trust from the time of its foundation. The Dissenters' Relief Act lays down precisely that principle enunciated by the Court of Chancery which you are attempting to disturb, namely, that where an usage of twenty five years has gone along with a trust, the trust is to be upheld according to that usage, unless there is anything in the deed of trust contrary to such usage. You are now asking Parliament to disturb or rather to reverse that principle. If you tell me you intend to do something else than the language of this Bill purports to do, my answer is, that nothing is more dangerous than to introduce Bills and get them affirmed by a second reading, which involve expressly one principle when you intend to establish another. The consequence of going on with this Bill will be to establish
  758
  the principle that usage is not to be exercised in future in the interpretation of trusts. You are introducing this principle, which is contrary to the provisions of the Dissenters' Relief Act, and that too for the first time. Well, I now ask the promoters of this Bill, are you prepared to make your first clause general? This will test it. Instead of providing that "no endowed school or educational charity shall be deemed to have been founded for the purpose of affording religious instruction according to the doctrines of the Church of England exclusively, unless from the language of the instrument founding or endowing the charity it shall appear that such was the intention of the founder thereof," will you omit the words "according to the doctrines of the Church of Eng land exclusively," and substitute the words, "according to the doctrines of any religious denomination or religious body?" No! You will never do that. For if you do you will at once repeal the Dissenters' Relief Act, and establish a law of evidence which is contrary to its name, it would exclude considerations of usage. Again, let me ask you, if you pass the Bill in its present form, what will you do with regard to Roman Catholic charities? You have been obliged, year after year, to suspend the operation of the general law with respect to Roman Catholic charities—and why? Because those charities were founded upon usage, and it is difficult to apply the same forms to them which you apply to other charities. Will you in future establish as your general rule of evidence, that usage is not to be brought to bear upon the interpretation and construction of these charitable trusts, and tell the Roman Catholics as a body that not one of their charities can be carried into effect? This is the result at which you will arrive if you affirm the principle of a Bill which will entirely destroy the law of evidence with reference to usage. You can settle the only practical grievance which is alleged to exist by adopting the suggestion of the Home Secretary. That practical grievance is, that certain persons who are supposed to have rights in certain charities can no longer enjoy those rights in consequence of the decision of the Court of Chancery Bill. If that be the case, remedy the grievance at once by an enactment in words which will have that effect, but do not attempt to do so by a Bill which it is admitted by every speaker will have a different operation from that which it pro-

  759
  fesses. As reasonable men you must see that the proper method of settling the question is to ascertain the practical grievance and then apply a remedy; not to introduce a Bill affirming a principle which every speaker who has addressed the House contends will have a different operation from that which the supporters of the Bill say it ought to have. I entreat the House to adopt the suggestion of the Home Secretary; but if the promoters of the Bill will not accede to that suggestion, then I say we ought to refuse to affirm a principle which must lead to most fatal consequences with reference to all charitable trusts if such a law as that which is proposed should ever become general.
  MR. WALTERsaid, he did not wish to prolong the discussion, but as it had been said there was considerable unanimity of opinion on the subject, he thought the better course, instead of proceeding to a division, would be to adopt the suggestion of the Secretary of State for the Home Department, and to refer the question to a Select Committee. His belief was, not only that the Bill could never pass in its present shape, but that it was not fit to go into Committee. The Bill professed to provide a remedy for one grievance, but he believed that it would create a thousand grievances. The only practical grievance which existed was that, by a decision of the Court of Chancery, certain gentlemen who were trustees of a particular charity, being Dissenters, had been removed from their position in the trust, contrary to the prescriptive usage of 150 years. He admitted that that was a practical grievance; but the effect of this Bill, if it became law, would be to abolish the prescriptive usage of centuries with regard to a very large portion of the charities of this country; and he trusted the hon. Gentleman (Mr. Dillwyn) would agree to refer the question to a Select Committee, where alone, he believed, the difficulties and intricacies of the subject could be fairly dealt with.
  MR. BRIGHT: I wish only to refer to one observation which fell from the hon. Member for Taunton (Mr. Mills). The hon. Member mentioned a case in which he thought this Bill would create a grievance. It is quite possible that might be so, but I am sure my hon. Friend (Mr. Dillwyn) will endeavour to meet that case by the introduction of any words which it may be thought necessary to insert in the Bill. The right hon. Gentleman opposite (Mr.
  760
  Walpole) also suggested that certain words should be introduced into the Bill with reference to the Dissenting sects. I think my hon. Friend will have no objection to extend the principle of his measure to the Dissenting sects. So far as I know the opinions of the members of the free churches of this country I believe they do not wish to apply any principles to the Established Church which they would not be willing to have applied to themselves; and if I am authorized by my hon. Friend in making that statement, I think the right hon. Gentleman may fairly be called upon to vote for the second reading of the Bill. We have heard a great deal lately about what may be done with Bills in Committee, and I believe that in Committee this Bill might be rendered a very useful and satisfactory measure. A most curious state of things appears however to prevail upon the Treasury Bench. I find on the back of the Bill the name of the Attorney General, and we have heard from him a speech which was, I think, conclusive with regard to this question. We have heard a great deal about "harmonious colleagues," and we have heard it said that a Government, in order to be strong, ought to be agreed upon all great questions; but I am very sorry to find that, upon the very first proposition made to the House, somebody does not agree with somebody else, and my hon. Friend (Mr. Dillwyn) is asked to withdraw his Bill, in order, I suppose, that we may not have the old spectacle of one portion of the Government going into one lobby and another portion into the other. I hope my hon. Friend will divide the House. He has before him the example of the question of church rates. We know how that question has been treated, how many impossible propositions have been submitted to us from the opposite side,—and we are now almost unanimously of opinion that the question can only be settled upon the principle of the Bill of the hon. Member for Tavistock. ["No, no."] I regard this as a question very much of the same character. You cannot deal with it by halves. You must admit the honest fair principle for which the Bill contends. I am sure you cannot keep matters as they are, and, although you may refuse to pass the Bill this Session, I believe that the more the subject is discussed the more likely will the House be to come to a unanimous conclusion. If I were to tell the House honestly my precise notion, it is that the Bill will not take anything whatever from the

  761
  Established Church. I believe, indeed, that the cases in which it would make any change whatever are exceedingly few, and these, as far as I can gather, are the opinions of the promoters of the measure. Generally speaking, in the case of these schools the appointment of trustees is in the hands of the bishops, of persons connected with the Established Church, of large landed proprietors, or of corporate bodies of one kind or another; and this Bill does not propose in the slightest degree to interfere with the power of appointment which these parties possess. I believe, therefore, speaking generally, that if this Bill passes into law, there will not be, ten years hence, any considerable number of cases in which any difference had been occasioned by its operation. I do believe, however, that it would do much to satisfy the minds of the great body of the Dissenting sects in the country, who feel that the decision of the Court of Chancery denies to them the commonest rights of citizens. I hope, therefore, that my hon. Friend will divide the House, and that we shall not see the spectacle of any Members of the Government calling themselves Liberal going into the lobby against the Bill.
  SIR GEORGE GREY: I must say, Sir, that after the course which this debate has taken the proposition made by my right hon. Friend the Home Secretary with reference to this Bill seems to me very reasonable. I think the course of the debate has shown that there is a practical grievance which requires a legislative remedy. That is a great admission to obtain from the House. It was distinctly and candidly made by the hon. and learned Member for Belfast (Sir Hugh Cairns), and I was very glad to hear him pledge himself to give his assistance in devising a legislative remedy; but I think it has also been established that grave doubts exist whether the Bill of the hon. Member for Swansea is likely to apply an efficient legislative remedy. Under these circumstances what my right hon. Friend proposes is that we should hesitate in adopting this Bill without further inquiry into the precise nature and extent of the grievance and the best mode of providing a remedy; and I think the proposal a reasonable one. I think the observations of the right hon. Gentleman opposite (Mr. Walpole) have rather tended to lead the House away from the real question at issue. He says that the Bill proposes generally to alter the law of evidence upon
  762
  which the Court of Chancery acts. Now, this Bill refers, not to modern educational trusts, in which the intentions of the founders may be clearly ascertained, but to very ancient educational trusts, some of them dating before the Reformation, and others at an early period of our history, containing the words "godly and honest men," which at the time were necessarily restricted to members of the Established Church, as they were used at a time when the numerous classes of Dissenters had no existence. These educational trusts were, in fact, intended to benefit the whole community, because the Church then embraced the whole community. But in the lapse of centuries the circumstances of the country in this respect have widely changed, and in the spirit of these ancient foundations other religious denominations have a claim to share the benefits of those educational grants where there are no express words showing an intention to limit the application of the endowments. When, therefore, the petition, which has been referred to, points out that the Dissenter is excluded from any share in the administration of these trusts, because it is required that the trustees should be "godly and honest," it states what is perfectly true with reference to educational establishments founded in the time of Edward VI., when those words bore a construction which was then necessarily placed upon them, but which could not be put upon them now. I think the House has shown in the course of this debate that it is willing to entertain the claim now put forward on the part of Dissenters upon this general ground. I have great doubt whether the Bill in its present form would really effect the object it is intended to accomplish. I think some inquiry is necessary, and the question is whether we should have such inquiry before we assent to the principle of the Bill, or whether the Bill should be read a second time and be then referred to a Select Committee. The difference between us is thus reduced to an almost infinitesimal degree. I should hope there will be no division, but although I think the Bill would require very considerable amendment in Committee, I am disposed to vote for a second reading, if the hon. Gentleman who has charge of it presses for a vote on its principle. It may then be referred to the consideration of a Select Committee, which I think might usefully inquire into the position of endowed schools and educational charities,

  763
  with reference to the effect of the recent decision of the Court of Chancery.
  LORD JOHN MANNERSsaid, that the speech of the right hon. Baronet who had just addressed the House seemed to leave in doubt what was the recommendation or decision at which the Government had arrived. Should the House agree, as he trusted it would, to negative the question that the Bill be "now" read a second time, Gentlemen on that, the Opposition, side of the House would be prepared to substitute for the Amendment to read the Bill a second time that day three months words to this effect—that a Select Committee be appointed to inquire how far, having regard to usage and the declared trusts of foundations, the educational charities of England and Wales could be made available for the education of the children of persons dissenting from the doctrine and discipline of the Church of England. He believed that a proposal of that nature would meet the equity and justice of the case, and he hoped it would be supported by both sides of the House.
  THE CHANCELLOR OF THE EXCHEQUER: Sir, as my constituents naturally feel a deep interest in this question, I trust I may be allowed very briefly to state my opinions on the subject. A distinction without a difference is commonly thought to be an absurd thing, and I think a division without a difference is much worse. I may safely say, after listening to a debate of three or four hours, that there has been a general concurrence of opinion—so far as opinions have been definitely expressed —on both sides of the House. The late Solicitor General (Sir Hugh Cairns) has made a double admission, or rather a double statement, that the law requires amendment. In his opinion, if I understood him correctly, there ought to be some statutory affirmation of the principle of usage as applicable to endowed schools and educational charities, and he also thinks that in lieu of the cumbrous, uncertain, and somewhat hazardous process of procuring what are called "conscience clauses" in particular, some general law should be established by the Legislature. These are admissions on the opposite side, and I have not heard on this side anything more definite in its terms or that has gone beyond these admissions. The hon. Member for Birmingham has spoken of the great principle asserted by this Bill, and he seems to think the vote of the Members of the Government ought to be determined, not with re-
  764
  ference to the particular merits of the measure, but rather by the political title which the Government is supposed to bear. Now, I do not see in this measure the elements of party difference; because the hon. and learned Gentleman who is entitled to speak on behalf of the party with which he acts substantially concurs with every hon. Member who has spoken on this side the House. In point of fact, we have reduced our difference to the narrowest limits. On the one side it is argued that a Committee ought to be appointed to inquire into the subject, and on the other side it is admitted that a Committee ought to be appointed to inquire into the Bill. The hon. Member for Birmingham says, "Let us go into Committee on the Bill, because it is susceptible of amendment," and he adds with great significance, "We have been told lately that a great deal can be done with a Bill in Committee." It is quite true we were told that many things might be done in Committee with a Bill; but a majority of the House decided that they should not be done, and the hon. Member for Birmingham was one of the majority who supported that decision. It is admitted, on the one hand, that if the Bill goes into Committee its character must be very materially altered; and, so far as an anticipation can be formed, I think it is very unlikely that the only important enacting clause of the measure would survive the operations of a Committee. My noble Friend who spoke last (Lord John Manners) stated that if the Motion for the second reading of the Bill were negatived he would be ready to move for a Committee of Inquiry. I would therefore suggest that the proposal to read the Bill a second time this day three months should be withdrawn. It would then still be open to those who wished to negative the second reading now to do so; and the desire being, no doubt, to remove real difficulties out of the way, and to recognize reasonable objections, those who might not, perhaps, be ready to agree to the second reading of this Bill now ought not to be made to vote for its absolute rejection, which might be interpreted into a denial that there was any necessity for legislation at all. The question is whether there is to be a Committee on the Bill or a Committee on the whole subject. I cannot but admit, wholly apart from any question of party politics or even of the merits of this immediate subject, that there is the greatest force in the objection of those who

  765
  say it is a bad and inconvenient practice, with reference simply to the rules of the House of Commons, to affirm Bills on the second reading, with the view of going into Committee to consider provisions which you anticipate will there probably undergo total alteration. It appears to me that the proposal of my right hon. Friend the Home Secretary is the one most convenient to all parties. I trust we shall not be obliged, on the one hand, to appear to resist a proposal so reasonable, or on the other to deny the necessity for legislation, which every speaker has admitted. But in answer to the appeal that has been made, so far as I am concerned, I must say, thinking my right hon. Friend's suggestion the best, it is my intention to abide by it.
  MR. HENLEYwished to guard himself and hon. Gentlemen on his side of the House from being supposed to assent to the proposition that a grievance had been proved in this case. He was, however, quite disposed to inquire into the facts, and see whether there was a grievance or not. The facts had been so much controverted by great lawyers on both sides of the House that he was unable to satisfy his mind as to what was really the effect of the decision which was said to have raised all this question. So obscure was this matter that since the House met in February the author of this measure had produced three essentially different versions of his own Bill. The hon. Gentleman had told them he did not want—that, on the contrary, it would be very objectionable— to have Dissenting trustees for a Church of England school. In the second edition of this Bill, however, he had proposed to do that very thing. [Mr. DILLWYN dissented.] The hon. Member might shake his head, but it was provided in No. 2 Bill that no person should be deemed incompetent to act as feoffee or trustee of a school by reason of his dissent from the doctrines of the Church. When, therefore, they had three Bills placed before them in the space of four or five months, all differing widely in their terms, and when no two lawyers exactly agreed as to what the grievance was which they had to cure, it was impossible to assent to the second reading of this measure. He trusted that the recommendation of the Home Secretary would be adopted.
  MR. DILLWYN, in reply, said the portion of No. 2 Bill which the right hon. Member for Oxfordshire had referred to, applied to the very class of endowed
  766
  schools now in dispute, and which he denied belonged to the Church of England. In answer to the right hon. Member for Cambridge University, he could only endorse what the right hon. Member for Birmingham had said—namely, that though he should like to see them first, he should be happy to accept such clauses as would prevent Dissenters from having any exceptional or undue preference over Churchmen. As to the suggestion of the Home Secretary, that he should postpone or withdraw the Bill, he could only say that the regular mode was to determine first on what principle they should proceed, and then consider how they were to carry it out. After deciding on the principle he was quite ready to go into Committee; and he thought the Bill, as it now stood, might be susceptible of improvement or amendment. His object was to put Churchmen and Dissenters as nearly as possible on a footing of religious equality. The Secretary of State for the Home Department had said that his Bill was little else than the assertion of a naked principle. That principle had been illustrated by the hon. Seconder of the Amendment who said that so long as the Church of England maintained its present national status a Dissenter was not in fact upon a par of religious equality with a Churchman. He wished so far as it was practicable to diminish that inequality, and he was particularly desirous of testing the opinions of the Government in regard to that principle, in order that he might determine whether or not he could give them his hearty support.
  Question put.
  The House divided:—Aves 210; Noes 192: Majority 18.

  List of the AYES.

  Adam, W. G. F. L. P.

  Bethell, Sir R.

  Agar-Ellis, hon.

  Biggs, J.

  Agnew, Sir A.

  Black, A

  Alcock, T.

  Bonham-Carter, J.

  Angerstein, W.

  Bouverie, rt. hon. E. P.

  Ashley, Lord

  Bouverie, hon. P. P.

  Ayrton, A. S.

  Bowyer, G.

  Bagwell, J.

  Brady, J.

  Bailey, C.

  Brand, hon. H.

  Baines, E.

  Bright, J.

  Ball, E.

  Briscoe, J. I.

  Baring, rt. hon. Sir F.T.

  Bristow, A. R.

  Baxter, W. E.

  Brocklehurst, J.

  Bazley, T.

  Browne, Lord J. T.

  Beale, S.

  Bruce, H. A.

  Beamish, F. B.

  Buchanan, W.

  Beaumont, W. B.

  Buller, J. W.

  Berkeley, hon. H. F.

  Butler, C. S.

  Berkeley, Col. F. W. F.

  Butt, I.

  767

  Buxton, C.

  King, hon. P. J. L.

  Caird, J.

  Kinglake, A. W.

  Calthorpe, hon. F. H. W. G.

  Laing, S.

  Langston, J. H.

  Cavendish, hon. W.

  Langton, W. H. G.

  Cayley, E. S.

  Lawson, W.

  Clay, J.

  Leatham, E. A.

  Clifford, C. C.

  Leatham, W. H.

  Clifford, Col.

  Lee, W.

  Clinton, Lord R.

  Levinge, Sir R.

  Clive, G.

  Lewis, rt. hon. Sir G. C.

  Cobden, R.

  Lindsay, W. S.

  Colebrooke, Sir T. E.

  Locke, John

  Coningham, W.

  Lowe, rt. hon. R.

  Craufurd, E. H. J.

  M'Cann, J.

  Crawford, R. W.

  Mackie, J.

  Crossley, F.

  Mackinnon, Wm. Alex.(Lymington)

  Dalglish R.

  Davey, R.

  M'Mahon, P.

  Davie, Sir H. R. F.

  Martin, P. W.

  Davie, Col. F.

  Martin, J.

  Denison, hon. W.

  Massey, W. N.

  Divett, E.

  Matheson, A.

  Dodson, J. G.

  Mellor, J.

  Douglas, Sir C.

  Merry, J.

  Dunbar, Sir W.

  Mitchell, T. A.

  Duncan, Visct.

  Miller, W.

  Dundas, F.

  Mills, A.

  Dunlop, A. M.

  Monk, C. J.

  Egerton, E. C.

  Monsell, rt. hon. W.

  Ellice, rt. hon. E.

  Morris, D.

  Esmonde, J.

  Noble, J. W.

  Evans, T. W.

  Norris, J. T.

  Ewart, W.

  North, F.

  Ewart, J. C.

  O'Connell, Capt. D.

  Ewing, H. E. C.

  Ogilvy, Sir J.

  Fenwick, H.

  Onslow, G.

  Ferguson, Col.

  Packe, G. H.

  FitzRoy, rt. hon. H.

  Paget, C.

  Foley, J. H.

  Paxton Sir J.

  Foley, H. W.

  Pease, H.

  Foljambe, F. J. S.

  Peto, Sir S. M.

  Forster, C.

  Pigott, F.

  Foster, W. O.

  Pilkington, J.

  Fortescue, C. S.

  Pinney, Col.

  Fox, W. J.

  Pollard-Urquhart, W.

  Gaskell, J. M.

  Portman, hon. W. H. B.

  Gavin, Major

  Pryse, E. L.

  Gilpin, C.

  Ramsden, Sir J. W.

  Gower, hon. F. L.

  Ricardo, O.

  Graham, rt. hon. Sir J.

  Ridley, G.

  Grenfell, C. P.

  Robartes, T. J. A.

  Grey, rt. hon. Sir G.

  Robertson, D.

  Grey, R. W.

  Roupell, W.

  Gurdon, B.

  Russell, Lord J.

  Hadfield, G.

  Russell, H.

  Handley, J.

  Russell, A.

  Hankey, T.

  Russell, F. W.

  Hanmer, Sir J.

  St. Aubyn, J.

  Hartington, Marq.

  Salt, T.

  Headlam, rt. hon. T. E.

  Schenley, E. W. H.

  Heneage, G. F.

  Scholefield, W.

  Henley, Lord

  Scott, Sir W.

  Hodgson, K. D.

  Seymour, H. D.

  Horsman, rt. hon. E.

  Seymour, W. D.

  Hutt, W.

  Shafto, R. D.

  Ingham, R.

  Sheridan, H. B.

  Ingram, H.

  Sheridan, R. B.

  James, E. J.

  Smith, A.

  Jervoise, Sir J. C.

  Somerville, rt. hon. Sir W. M.

  Johnstone, Sir J.

  Keating, Sir H. S.

  Stanley, Lord

  Kershaw, J.

  Stansfield, J.

  768

  Steel, J.

  Whalley, G. H.

  Steuart, A.

  Whitbread, S.

  Stuart, Lord J.

  White, Col. L.

  Sturt, N.

  Wickham, H. W.

  Sullivan, M.

  Willcox, B. M'G.

  Sykes, Col. W. H.

  Williams, W.

  Talbot, C. R. M.

  Willoughby, Sir H.

  Taylor, H.

  Wilson, rt. hn. J.

  Thornhill, W. P.

  Winnington, Sir T. E.

  Tite, W.

  Wise, J. A.

  Tollemache, hon. F. J.

  Wood, rt. hon. Sir C.

  Trelawny, Sir J. S.

  Wynne, C. G.

  Vivian, H. H.

  Wyvill, M.

  Watkins, Col. L.

  Wemyss, J. H. E.

  TELLERS.

  Western, S.

  Dillwyn, L. L.

  Westhead, J. P. B.

  Perry, Sir T. E.

  List of the NOES.

  Adderley, rt. hon. C. B.

  George, J.

  Arbuthnott, hon. Gen.

  Gilpin, Col.

  Astell, J. H.

  Gladstone, Capt.

  Baring, H. B.

  Gladstone, rt. hon. W.

  Barrow, W. H.

  Goddard, A. L.

  Bective, Earl of

  Gordon, C. W.

  Beecroft, G. S.

  Gore, J. R. O.

  Bentinck, G. W. P.

  Greenall, G.

  Beresford, rt. hon. W.

  Greenwood, J.

  Blackburn, P.

  Gray, Capt.

  Booth, Sir R. G.

  Griffith, C. D.

  Botfield, B.

  Grosvenor, Earl

  Bovill, W.

  Hamilton, Lord C.

  Bramston, T. W.

  Hanbury, hon. Capt.

  Bridges, Sir B. W.

  Hardy, G.

  Bruce, Major C.

  Hartopp, E. B.

  Bruen, H.

  Hassard, M.

  Buckley, Gen.

  Henley, rt. hon. J. W.

  Burrell, Sir C. M.

  Hennessy, J. P.

  Cairns, Sir H. M'C.

  Henniker, Lord

  Cartwright, Col.

  Herbert, Col. P.

  Churchill, Lord A. S.

  Hervey, Lord A.

  Cochrane, A. D. R.W.B.

  Heygate, Sir F. W.

  Codrington, Sir W.

  Hill, Lord E.

  Cole, hon. Col.

  Hill, hon. R. C.

  Cooper, C. W.

  Hoare, J.

  Curzon, Visct.

  Holdford, R. S.

  Dawson, R. P.

  Hood, Sir A. A.

  Deedes, W.

  Hope, G. W.

  Dickson, Col.

  Hopwood, J. T.

  Du Cane, C.

  Hornby, W. H.

  Duncombe, hon. W. E.

  Horsfall, T. B.

  Du Pre, C. G.

  Hotham, Lord

  Dutton, hon. R. H.

  Howes, E.

  Earle, R. A.

  Hubbard, J. G.

  Edwards, Major

  Humberston, P. S.

  Egerton, Sir P. G.

  Hunt, G. W.

  Egerton, hn. A. F.

  Ingestre, Visct.

  Egerton, hn. W.

  Jermyn, Earl

  Elmley, Visct.

  Jervis, Capt.

  Elphinstone, Sir J. D.

  Joliffe, rt. hon. Sir W. G. H.

  Emlyn, Visct.

  Estcourt, rt. hn. T. H. S.

  Kekewich, S. T.

  Euston, Earl of

  Kendall, N.

  Farquhar, Sir M.

  Kennard, R. W.

  Farrer, J.

  Ker, D. S.

  Fellowes, E.

  King, J. K.

  Ferguson, Sir R. A.

  Knatchbull, W. F.

  Forester, rt. hon. Col.

  Knightley, R.

  Freeland, H. W.

  Knox, Col.

  Galway, Visct.

  Knox, hon. Major S.

  Gard, R. S.

  Leeke, Sir H.

  Garnett, W. J.

  Lefroy, A.

  769

  Legh, W. J.

  Rolt, J.

  Liddell, hon. H. G.

  Salt, T.

  Lindsay, hon. Col.

  Selwyn, C. J.

  Long, R. P.

  Seymer, H. K.

  Long, W.

  Sibthorp, Major

  Longfield, R.

  Smith, Sir F.

  Lowther, hon. Col.

  Smith, A.

  Lyall, G.

  Smollett, P. B.

  Lygon, hon. F.

  Somerset, Col.

  Macaulay, K.

  Spooner, R.

  Mainwaring, T.

  Stanhope, J. B.

  Manners, rt. hn. Lord J.

  Stuart, Major W.

  Miles, Sir W.

  Sturt, H. G.

  Miller, T. J.

  Stracey, Sir H.

  Mitford, W. T.

  Talbot, hon. W. C.

  Montagu, Lord R.

  Taylor, Col.

  Moody, C. A.

  Thynne, Lord E.

  Mordaunt, Sir C.

  Thynne, Lord H.

  Morgan, O.

  Tollemache, J.

  Morgan, hon. Major

  Torrens, R.

  Mowbray, rt. hon. J. R.

  Upton, hon. Gen.

  Mundy, W.

  Valletort, Visct.

  Newark, Visct.

  Vance, J.

  Newdegate, C. N.

  Vandeleur, Col.

  Newport, Visct.

  Vansittart, W.

  Nicol, W.

  Verner, Sir W.

  Noel, hon. G. J.

  Vernon, L. V.

  North, Col.

  Walcott, Admiral

  Overend, W.

  Walpole, rt. hon. S. H.

  Packe, C. W.

  Walter, J.

  Pakenham, Col.

  Watlington, J. W. P.

  Palk, L.

  Way, A. E.

  Papillon, P. O.

  Welby, W. E.

  Parker, Major W.

  Whiteside, rt. hon. J.

  Patten, Col. W.

  Whitmore, H.

  Paull, H.

  Williams, Col.

  Peel, rt. hon. Gen.

  Wyndham, Gen.

  Pennant, hon. Col.

  Wyndham, hon. H.

  Pevensey, Visct.

  Wynn, Sir W. W.

  Potts, G.

  Wynne, W. W. E.

  Powys, L. P.

  Yorke, hon. E. T.

  Pritchard, J.

  Quinn, P.

  TELLERS.

  Ridley, Sir M. W.

  Northcote, Sir S.

  Rogers, J. J.

  Puller, C. W. G.

  Main Question put, and agreed to.
  Bill read 2°.
  LORD JOHN MANNERSinquired what course the Government intended to pursue in respect to the future stages of this Bill?
  SIR GEORGE LEWISsaid, the course he proposed to take was in entire accordance with the suggestion he had already made. Instead of the Bill being submitted to a Committee of the whole House, he thought it ought to be sent to a Select Committee. He therefore now begged to move, that it be referred to a Select Committee accordingly.
  Motion made and Question proposed, "That the Bill be committed to a Select Committee."
  MR. DILLWYN MR. DILLWYN, before he assented to that proposal, wished to know what was to be the composition of the Committee, whe-
  770
  ther it was to inquire and take evidence' or merely to discuss the facts already ascertained; what alterations the Government wished to make in the provisions, and whether they intended to give every facility for the passing of the measure this Session, or merely desired to defeat it? The Bill was a very short one; it might very well be discussed in the whole House; and he was ready to adopt everything that would make it a good and practical measure. The Motion for referring it to a Select Committee ought to be postponed till to-morrow, in order that he might obtain assurances from the Government on the points he had named.
  SIR GEORGE LEWIShad not the least objection to the adjournment of the debate till to-morrow if such were the wish of the House; but it was necessary that the Committee should be nominated, and when the Motion for that purpose was made, every opportunity would be given to the hon. Gentleman to obtain the explanation he desired. An adjournment was, therefore, unnecessary. It was, of course, impossible now to state what clauses the Government, or any other Member who might sit on the Committee, would wish to propose; but it was well known that it was in the power of a Select Committee entirely to remodel any Bill that was referred to them—[a laugh]. Hon. Gentlemen might be amused at the fact, but he had simply stated what was one of the Orders of the House.
  MR. CONINGHAMtrusted that the hon. Member for Swansea would adhere to a postponement of this question until to-morrow or some other occasion. The principle of the Bill was of the utmost importance, and one on which the Liberal party ought to enter into no compromise. The course taken by the Government on this matter would show whether their policy was likely to entitle them to support.
  MR. HORSMANsaid, the Motion of the Home Secretary was rather irregular, and had evidently taken the hon. Member for Swansea by surprise. The usual course was for the hon. Member who had charge of a Bill to fix the day for going into Committee, and then it was competent for any hon. Gentleman to move as an Amendment that there should be a reference to a Select Committee. Nobody had been prepared for this sudden proposal, which, moreover, would have the effect of taking the Bill entirely out of the hands of the hon. Gentleman who brought it in. The Motion should therefore now be withdrawn,

  771
  and by the time the day for going into Committee had been fixed by the hon. Member for Swansea the Government might have made up their minds as to the course they were to pursue. If they then persisted in wishing for a Select Committee they might move an Amendment accordingly.
  MR. BOUVERIEthought the suggestion of the right hon. Member for Stroud would delay the progress of the Bill, while that of the Home Secretary would facilitate it. If the hon. Member for Swansea fixed the next stage of the Bill, it could not come on for a fortnight or so, when they would have another debate on the question of referring the measure to a Select Committee.
  MR. SPEAKERasked whether the hon. Member for Swansea had moved the adjournment of the debate?
  MR. DILLWYNsaid he begged to move that the House go into Committee on the Bill to-morrow.
  MR. SPEAKERsaid that the hon. Member, having already spoken, was not then entitled to make a Motion; but if by any misapprehension on his part, he had not heard the hon. Gentleman move, he was sure he was acting in accordance with the wishes of the House in giving him an opportunity of moving the adjournment.
  MR. HADFIELDhoped the hon. Member for Swansea would not abandon the charge of the Bill. He begged to move that the House go into Committee on the Bill to-morrow.
  MR. SPEAKER: Does the hon. Member move the adjournment?
  MR. HADFIELD: Yes.
  MR. J. HARDYgave notice, that on the Motion for referring the Bill to a Select Committee, he would move a general Resolution, referring the whole subject to a Select Committee with a view to legislation on it.
  Debate adjourned till to-morrow.

APPEAL IN CRIMINAL CASES BILL.

  SECOND READING.
  Order for Second Reading read.
  MR. M'MAHON, in moving the second reading of this Bill, said, the measure was exactly identical with one that had been read a second time last year, with this exception, that he had omitted from the present Bill all the clauses which had been made grounds of objection on the previous occasion. He believed the principle of the
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  measure was approved by the country, and after all that had passed, he was certainly surprised to learn that the Government were now about to oppose it; and as he had only forty minutes left before the adjournment, and could not hope to gain anything by postponing the second reading, he would take the division at once. It might be said this measure was unnecessary, because the Government intended to consolidate the whole of the criminal law. The consolidation of the criminal law had been talked of now for nearly thirty years and yet nothing had been done. The main object of this Bill was to secure to a person who was prosecuted for an offence involving his life, his liberty, and his property, the same right of having the sentence pronounced against him reviewed, which he now enjoyed if he were sued civilly for the sum of sixpence. In the present state of the law, if a person charged with a criminal offence had not the good luck to move the indictment before trial into the Queen's Bench, he was at the mercy of the first Judge and jury before whom he might be brought. His only remedy was an appeal to the Home-office; but there was a manifest impropriety in sending a man to beg a pardon from a Secretary of State when he ought to get redress in open court. What his Bill proposed was to empower the Court of Queen's Bench to grant a new trial after a verdict as well as before it, and he trusted that so moderate and beneficial a measure would receive the sanction of the House. The principle had been approved of by the Criminal Law Commission, and in 1844 Sir Fitzroy Kelly introduced a similar Bill. The hon. and learned Gentleman concluded by moving the second reading of the Bill.
  Motion made, and Question proposed, "That the Bill be now read a second time."
  THE SOLICITOR GENERALsaid, that the question involved in the second reading of this Bill was not simply whether, under proper guards, an appeal upon questions of fact should be allowed, but whether the procedure in criminal cases should be assimilated in omnibus to that in civil causes, and such a proposition he felt bound to oppose. At present the criminal law was administered with a careful regard to the interests of the accused; but he was afraid that the reverse would be the case if the law were altered as proposed. The effect of permitting prisoners to appeal

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  upon such grounds as the alleged inadmissibility of evidence or misdirection on the part of the Judge, would be to impede the execution of sentences; for if a rich man were convicted he could carry the case from Court to Court, (and by the Bill a rule nisi was to operate as a stay of execution), whilst the poor man was practically excluded from its operation. He maintained that adequate means existed at present for correcting erroneous verdicts, and that no failure of justice could be proved under the law as it now stood which would warrant such a change as that proposed. To allow an appeal in cases where the presiding Judge thought the verdict was against the evidence or otherwise unsatisfactory, would at least be an intelligible proposition; but nothing could be more injurious to the due administration of criminal justice, than to permit a prisoner to move the Court of Queen's Bench for a now trial upon any ground whatever, however trivial or technical. If such a right were granted ex debito justitiœ to defendants it could not fairly be refused to the Crown, and where, then, would be that fundamental principle in English jurisprudence, that a person once acquitted by the verdict of twelve men could not be tried again for the same offence? For these and other reasons, which at that hour it was impossible to advert to, he felt bound to oppose the second reading of this Bill.
  It being now a Quarter to Six o'clock, Mr. BOWYER moved that the debate be adjourned.
  Debate adjourned till To-morrow.
  House adjourned at ten minutes before Six o'clock.