§ Order for Second Reading read.
§ MR. DILLWYN
said, the question of the management of endowed schools, and the admission of Dissenters as trustees, had been so much ventilated and so constantly discussed, that he should feel it unnecessary to offer any observations, were it not that he feared the position which it at present occupied had been lost sight of. Considerable uncertainty prevailed as to the actual state of the law with reference to the appointment of trustees of endowed schools, and the controlling power which they exercised in reference to the education of children of Dissenters. During the last Session two Acts of Parliament, bearing more or less on the question, were passed; but neither of these, in his opinion, remedied the unsatisfactory state of things of which Dissenters complained. The first was an Act introduced into the House of Lords by Lord Stanley of Alderley, directing trustees of endowed schools to give greater facilities, and to make better provision for the education of the children of Dissenters. So far, there could be no doubt but that the position of those children in the schools was bettered. But the provisions of that Act in no way affected the administration of the schools, which was practically decided by the appointment of those administering the law. The second Act which was passed had for its object to amend the law relating to the administration of endowed schools, and giving extended powers to the Charity Commissioners. But, by the decision in the Ilminster case, which went to the House of Lords on appeal from the judgment of Lords Justices, it was clear that the law in respect to trustees still remained the same, and Dissenters were rendered ineligible, as regarded Church schools, to act as trustees. He would not renew the arguments which had been fully and repeatedly urged as to the impolicy or the injustice of the law as it stood, which excluded so very large and respectable a body as the Dissenters of this country from any share in the management of the charities of the country; but he would merely call the attention of the House to the fact that it was not only injurious as regarded Dissenters, but it prevented the full operation of the Act which was passed last year for giving increased facilities to provide for the education of the children of Dissenters in endowed schools 673 If the Dissenters found that a systematic attempt was made to exclude them from all participation in the management, they would naturally lose all confidance in these establishments, thinking it probable that their children would not have fair play in them. An Act of Parliament might give certain instructions to trustees; but Dissenters could not avoid feeling uneasiness when they saw the Church of England assuming a propagandist attitude. Recent decisions had brought nearly all the educational establishments within the category of Church of England schools; and thus the position of Dissenters on Boards of Management, where the foundation might have been originally conceived in a broad and liberal spirit, was rendered very un-pleasant through their liability to expulsion. In the case of a grammar-school, of which he was one of the trustees, the founder was a Bishop of large and liberal mind; and in the deed it was provided that the trustees or "feofees," as they were called, should be appointed by a large proprietor resident in the neighbourhood and his successors; and failing appointment of them, or in case of their being minors, the Bishop of the diocese was to appoint. Now, he firmly believed that the Bishop had intended that as a school for the benefit of the community at large, to be administered by the respectable inhabitants; but by the tenour of legal decisions it was now within the category of Church schools. The present visitor with whom the appointment of feoffees rested was the Lord Lieutenant of the county, and he had invariably picked out, not Churchmen, not Dissenters, but, the most respectable and intelligent of the inhabitants, and those whom he thought best qualified to administer the trust; but, according to the law as it now stands, such of these feoffees as were not Churchmen were liable to be removed from the trust. His present proposal was a very simple one. Prom the decisions of various Judges the law appeared to be uncertain, and the preamble of the Bill stated that "doubts have arisen." If these words were objected to he had no objection to alter them. In the Ilminster case, however, the Lord Chancellor and Lord Cranworth took one view of the matter, and Lord Wensleydale and Lord Chelmsford another, so that he thought he was justified in saying that doubts existed on the question. What the Bill proposed was, that no person should be deemed ineligible to be a trustee of any charitable 674 endowment because he was not a member of any particular church, sect, or denomination, unless in the will, deed, or other instrument declaring the trusts thereof, it was expressly declared that the trustees should be members of or profess the doctrine of such church, sect, or denomination. Where there was a declaration that the trustees should belong to a particular Church, the Bill would not interfere with that arrangement. He could not conceive how a simple clause, such as that which contained the provisions of his proposed measure, should be open to any objection. He knew it would be said that his introduction of the Bill was inconsistent with what he said when introducing his measure of 1859, respecting endowed schools; but he was not open to that charge. He did not hesitate to admit that this was not so satisfactory a measure as the one which he brought in last Session; but he was told that that was too strong a Bill. The one he now proposed was certainly a moderate one; but his original measure would not have taken Church schools proper from the exclusive trusteeship of Churchmen. Where schools were not expressly declared to be of that character he now proposed to admit Dissenters; and he really did not see that there was any other alternative between that and allowing all the trust schools throughout the country to be classed as Church of England schools. Indeed, he believed that if something were not done, all schools which had been by their founders honestly and bonâ fide intended to be open ones would be grasped by the Church. By his last Bill, he did not mean to introduce Dissenters in cases where there was no doubt that the schools were Church schools proper. What he proposed was to limit the definition of what were Church schools. He was defeated. He had attempted in various forms to carry out the same principle, and, with that view, had introduced one Bill after another. He was no lawyer himself, and therefore was unskilled in the legal technicalities with which he had been met. One of his Bills was carried through a second reading; but in Committee it was pulled to pieces, and he had to abandon it. The law had extended the definition of what were to be considered Church of England schools, and he believed it would go on to embrace nearly all schools in that category. This being so there was little left but for the Legislature to say that, since that was the case, since the definition would not be altered, Dissenters 675 must, under certain terms, be admitted to a part in their administration. He did not wish to interfere with any Bishop, or any one else, having the nomination of trustees to schools, as to the particular persons whom he should appoint. He might appoint Churchmen or Dissenters, as to him seemed fit. But he might wish, more particularly in districts where Dissenters were very numerous, to give to those Dissenters confidence in the management of the schools, by appointing some Dissenters as trustees, and this the present Bill would enable him to do. The Charity Commissioners had reported one case where the churchwardens of the parish were the directors of the school; and, as Dissenters were most numerous there, they appointed Dissenters to administer the trust. Well, all he wanted to do by this Bill was to prevent a Dissenter, who might be chosen trustee of an endowed school, from being liable to be ejected by process of law. He was, in fact, desirous of enlarging the field of choice to those who had the appointments. The measure was one of defence, and not of aggression: and he did not think it was for the benefit of the Church itself to insist upon following up the attack which she had commenced, or to resist so moderate a proposal as the present one. The principle of the Bill had already been accepted by both Houses, in "An Act to Amend the Law relating to the Administration of Endowed Charities," passed last Session. The 4th Clause of that Act provided that trustees should not be removed on account of their religious opinions. What Parliament had decided that the Charity Commissioners should not do he wanted, in effect, to provide that the law should not do in the case of schools. He repeated that he was at a loss to see what objection there could be to his Bill; and he now begged to move that it be read a second time.
§ Motion made, and Question proposed— "That the Bill be now read a second time."
§ MR. SELWYN
said, that the hon. Member for Swansea (Mr. Dillwyn) had applied himself to two very distinct questions— one being before the House in the present Bill, and the other not being before it. One—the eligibility and appointment of trustees—was raised by this Bill; the other, which belonged to the hon. Member's Bill of last Session, and was then rejected by the House, was that of diverting certain endowed schools from the position in 676 which they stood by law—of transferring them from the Church of England to Dissenting communities. He could scarcely imagine that the hon. Member was serious in asking the House to do indirectly, by means of the appointment of trustees, what it had refused to do directly by dealing with the schools themselves. And yet if any meaning could be attached to his speech the Bill was directed to that end. He (Mr. Selwyn) was so satisfied that the House would not entertain such a proposal that he should not occupy its time by entering on a discussion of the measure rejected last Session; but should confine himself to the question now properly before them, namely, that of the eligibility and appointment of trustees. He was unable to understand what were the legal difficulties which the hon. Member had spoken of. The hon. Gentleman had spoken of the question being surrounded by obscurity. He differed from him. Though, in order to ascertain what the existing law was, it might be necessary to refer to decided cases; still he had no hesitation in saying that the question was not involved in any legal obscurity whatever. It was one which any gentleman of education was capable of mastering as well as the most experienced and acute lawyer. And he would remind the House that it was not one—as the hon. Gentleman (Mr. Dillwyn) had put it— simply and solely affecting the Church of England. He had failed in an attempt to carry a measure founded on such a principle. It would be impossible to succeed in any attempt to carry a measure of that kind; and, accordingly, he had extended his plan, and made it apply to all sects; and the present proposal would be found to be as dangerous, and when understood by them would, he believed, be as distasteful to the Dissenting communities as it was to the members of the Church of England. When he (Mr. Selwyn) read the statement in the preamble that "doubts have arisen as to the eligibility of certain persons to be trustees of certain charities," he vainly taxed his memory to trace any such doubts. He then consulted the cases decided in the Law Courts, but without any result. Next, he had recourse to the experience of some of the most able practitioners in the courts, and showed them that statement in the Bill. They were unwilling to believe that the fallacy connected with the Ilminster School case would be revived 677 again, and they were in the same state of ignorance as to any such doubts; and, therefore, when memory, books, and friends had alike failed, it was with no little curiosity that he came down to hear from the hon. Member for Swansea by whom these mysterious doubts had been entertained, and when and how they had arisen; but he had certainly not heard anything to justify the statement in the preamble, nor indeed, anything beyond a repetition of the same mistake respecting the llminster case. He felt bound to state, with all courtesy to the hon. Member, but in direct contradiction to the terms of his Bill, that there were not, and never had been, any such doubts as were therein stated to have arisen. But he would go further, and show not only that there were no such doubts, but that there had existed for many years a rule of practice which had been uniformly acted upon, which had been unchanged and unchallenged, and which had its foundation in experience, wisdom, and common sense; and, further, that it had been fairly, impartially, and uniformly acted upon, not only in the case of the Church of England, but in the case of all sects and denominations. He would not go through the list of cases, but would merely refer to two or three, which, from their magnitude and importance had obtained a historic notoriety. The first to which he should refer was the well-known case of Lady Hewley's Charity. That charity was founded in 1704, and the deed of foundation contained no strict definition as to doctrine or discipline. It merely stated that the recipients of the charity were to be godly preachers of Christ's Holy Gospel, and with respect to the trustees that they were to be men of reputation. It was decided that, having regard to the well-known religious opinions of the founder, members of the Church of England on the one hand, and Unitarians on the other, were not proper objects of the charity. When the litigation with respect to that charity first began in 1832 one of the trustees was a member of the Church of England, and the majority were Unitarians. The Unitarians had gradually obtained the upper hand; and, consequently, the intentions of the founder were departed from. The case was decided by a weight of legal authority which it would be difficult to equal. It was first heard by the Vice Chancellor of England, Sir Launce-lot Shadwell; then on appeal by Lord Lyndhurst, in conjunction with two of the 678 most eminent Judges that ever adorned the English bench, Mr. Justice Patteson and Mr. Baron Alderson; and their judgment was affirmed by the House of Lords with the advice of Lord Chief Justice Tindal and the other Judges, and upon the motion of Lord Cottenham. The result was a decision removing the trustee who was a member of the Church of England and also the Unitarians; and directing that in future the trustees should be selected from those sects to which the charity was declared to belong, namely, the Presbyterians, Independents, and Baptists. Another case occurred shortly after the passing of the Municipal Corporations Act, and related to charities in the city of Norwich. In that case (Mylne and Craig, 305) Lord Cottenham decided thatWhen the object of a trust was exclusively connected with one religious party the trustees who were to have control of it should be of the same religious party.The principle of those decisions was that where there was a charitable foundation for the benefit of any church or sect, the persons who were to be managers and trustees of that religious establishment should be of the same church, the same sect, or the same denomination as that to which the charity belonged; but, on the other hand, the rule was equally clear that where there was an open trust, as a trust for the benefit of the inhabitants of a particular town, or for the maintenance of roads or bridges, then no religious qualification was imposed. The same principle was again acted upon when, inconsequence of the disruption of the Church of Scotland, dissensions arose in many of the Presbyterian churches in England, and, amongst others, in that of Berwick-on-Tweed. In that case there was nothing special in the original foundation; but, when it appeared from the evidence brought forward that the congregation had always been in connection with what was called the Established Church of Scotland, it was decided that the new trustees should be persons who shared the same views with respect to the particular questions in dispute as those which were entertained by that Church. He had shown, therefore, that the principle acted upon in those cases was not one for the benefit of the Church of England exclusively, but one which had been administered impartially for the benefit of all. The provisions of the Bill of the hon. Gentleman, however, would carry out a contrary principle; for while they professed to 679 respect the intentions of the founders, they would, in many instances, defeat them. He would ask the House to mark the difference between the language of this Bill and that of the hon. Gentleman's Bill of last year. By the Bill of last year it was proposed that trustees should be appointed without any reference to religious opinions, unless it should appear that the contrary was the intention of the founder; but this Bill proposed that they should be appointed without any reference to the religious profession or opinions of the founder, unless it was expressly declared that the trustees should be members of, or profess the doctrine of a particular church, sect, or denomination. That was going a step further than the hon. Member attempted to go last year. In the judgment delivered by those eminent Judges, Mr. Justice Patteson and Mr. Baron Alderson, it was laid down that—" The will of the founder is to be observed." So far the hon. Member professed to go with them. "Then how is the will of the founder to be ascertained?" And here is the point of departure—If it be expressed clearly in the instrument of foundation there can be no difficulty. If it is expressed in doubtful or general words recourse must be had to extrinsic circumstances, such as the known opinions of the founder, the existing state of the law, the contemporaneous usage or the like.But, according to the Bill of the hon. Member for Swansea, all such circumstances were to be disregarded, and nothing was to have any effect hut an express declaration in words. He wondered at the hon. Member pleading ignorance of technicalities when asking the House to sanction a law which would be grounded on technicalities and nothing else. It was not going too far to say that such a law would, in many cases, defeat the intention of the founder. If they could summon from the grave some sturdy Independent of a century or two ago, and ask him was it his intention that the management of his school should at any time be transferred, wholly or in part, to Roman Catholic trustees, they might anticipate his reply. What would a Wesleyan say under such circumstances? If the House required the introduction of express declarations in deeds, it would be taking a backward step; for, at the close of the last Session, Parliament passed a Bill brought in by the hon. and learned Attorney General, and having for its object to declare that if anything was properly to be implied from a deed, it was not essential that it should be expressed in 680 words, but was to be taken as if so expressed. Hitherto the rule of law had been certain and clear, and there was no difficulty in carrying out the real intentions of the founder; but if this Bill passed it would be said, "Here is an Act of Parliament declaring that, however clear the I intentions of the founder may be, unless the deed of foundation contains an express declaration of his wishes, all other evidence is to be of no force whatever. That would amount to a virtual repeal of the Act passed last Session, and would increase the length of all future deeds, and would introduce a new technicality in the place of a clear rule of law. The hon. Member, foreseeing the objection as to the intention of the founder, told them it would be found to exist very little, if at all, in practice; that those charged with the appointment of trustees would give the measure a liberal interpretation; and that the proper class of persons would be put in charge of the various trusts. But, assuming such an interpretation, he would ask the hon. Member to consider how many doubts and difficulties would arise as to the precise meaning of "an express declaration." Take the case of a deed giving the power of appointing trustees to the head of the Wesleyan Conference, or the moderator of a synod of the Presbyterian Church. They could scarcely conceive any case in which the intentions of founders could be more clearly defined; but the Bill would make it a very difficult matter indeed to decide, for the question would be raised whether that power; amounted to an express declaration or not. The House must at once see the doubts and difficulties, and consequent litigation, that must arise if the definition of the founder's will was to be based exclusively on an "express declaration." They would observe, also, that the Bill was to have a retrospective effect, and consequently doubts would arise as to the validity of any appointment of a trustee which did not rest on the ground of this express declaration. But if the hon. Member argued that very little effect would be produced by the change, then he was condemning his own Bill, and saying, in other words, that it would be inoperative. But he (Mr. Selwyn) was afraid that that view of the measure would not square with the facts of the case; for practical experience had shown that the power to appoint trustees might fall into the hands of a few survivors, or of a majority differing from the religious opinions 681 of the founder, and then in numerous instances followed the perversion of the trust. It was impossible not to see that that would be the inevitable result if this Bill took the effect of law; for if the hon. Member for Swansea thought that the practical effect would be little, he (Mr. Selwyn) took the opposite view, and believed that it would have a very large and extended operation. He concurred with the hon. Member in that part of his speech in which he deprecated disunion in the management of religious charities; but, if religious charities were to be conducted in the manner proposed by the hon. Member, he asked whether union and harmony were likely to be preserved? If dissensions must be he asked the hon. Member to consider whether it was not better that the conflict should be external rather than internal. Was it not better that the trustees should be controlled by a visitor, or by other constituted authorities, rather than that every person and every child connected with the charity should know that there were two or more parties among the trustees themselves, each of them conscientiously entertaining different views as to the manner in which the school should be conducted, and especially with respect to religious instruction? There would be under the Bill a constant struggle between the different parties of trustees, and the same internal controversy would necessarily recur on the appointment of every new trustee; because, if there was to be an infusion of Dissenters—as the hon. Member said—into charities of the Church of England, or an infusion of members of the Church of England into Dissenting trusts, and if these persons were there respectively for the purpose of advocating their particular views, they would deem it their duty to increase their number, if possible, on every vacancy. The hon. Gentleman still relied upon the Ilminister School case, but the House was now in possession of information on the subject which it did not possess before, inasmuch as that case had last year been carried before the final court of appeal. There was, as the hon. Member stated, a difference of opinion between the learned Lords who heard that case; but that difference of opinion related only to the particular facts and circumstances of the case, and to the application of the known rule of law to those facts and circumstances, not to the rule of law itself. The Lord Chancellor, in giving his judgment, completely refuted the 682 fallacy into which so many had fallen, and which had been repeated in so many petitions to that House—that the decision of the Lords Justices in that case had cast a stigma on the Dissenting community; he said—I must protest against the oft-repeated saying, that to hold that Dissenters ought not to be appointed Trustees of a Church of England School is casting a stigma on the whole body of Dissenters. Suppose there were a school endowed in England, the deed of foundation requiring that the religious tenets of the Unitarians shall be taught in the school, surely there would be no stigma cast upon those who approve of the Athanasian creed, if it were held that they ought not to be appointed the trustees of such a school.The noble and learned Lord stated that there were two charitable purposes involved in the will of the founder—the school is mentioned first; but the second charity— the repair of the roads and bridges—is not ancillary to the first, and is wholly independent and separate from it." Now, if that were so, no doubt the charity would be what was called an open charity, and not exclusively connected with the Church of England. Then came the opinion of Lord Cranworth, who stated that whenever the Court of Chancery was called on to appoint trustees to a charity clearly connected with the Church of England, and supported by funds supplied for the purpose of promoting the objects of the Church of England, the Court would take care that none but members of that Church should be appointed trustees; and that the same principle would guide the Court in the appointment of corresponding trusts established for the benefit of any religious sect or denomination of Dissenters from the Church of England; and, he added, that the only question was, whether the trusts beyond those for the school — namely, the erection of bridges, &c. — were of sufficient magnitude and importance to warrant their being taken into account in the appointment of trustees, and he thought that they were. Lord Wensleydale said the trustees in this particular case had a double duty to perform, but if their duty had been confined to the school only the Master of the Rolls and the Lords Justices would not have differed in opinion: they would have agreed that when the Court had a discretion to appoint trustees of a school, when the intention of the founder was to provide for religious instruction, according to the doctrine of the Church of England, the trustees ought to he members of that Church. Then, Lord Chelmsford said, the 683 whole ground of difference was whether the directions given by the founder for the application of the residue of the profits of the property were such as to warrant the admission of persons of different denominations, and he was of opinion that they were not. That, however, was the only case to which the hon. Member was able to refer as warranting the introduction of the present measure. He could understand such a case being brought forward as an authority for some private Bill, but it afforded no grounds whatever for interfering with the ordinary course of justice. The present Bill was not a Bill relating to the case of mixed charities only, but one affecting all charities; and it was an unwarrantable assertion to say that the law was either doubtful or uncertain on the subject, He hoped never to hear the Ilminster cases cited again; and it was to lay that troublesome ghost, which had come up before them so often, that he had quoted the judgments in the final Court of Appeal. The hon.; Member for Swansea had referred to the discussions that had formerly taken place in Parliament on this subject, and especially to the Act passed last Session, relating to the administration of charities; but that Act merely extended the general power of the Charity Commissioners, and carefully abstained from giving them any power of deciding questions of religious controversy. In 1858, a measure, like the present, was introduced into the House of Lords; but, judging from the date, it was reasonable to infer that that Bill was brought in in consequence of an erroneous idea as to the effects of the decision which had then been given in the Ilminster case, and in the absence of the further light that had since been thrown upon the subject. That Bill was rejected on the second reading, and had not been heard of since. Last year a larger measure involving the principle of the present Bill was introduced by the hon. Member, and was rejected by the House by a majority of seventy; and, on an attempt being made to reintroduce a Bill like the present one, it was thrown out in consequence of an adverse opinion from the Chair, on the ground that the same Bill could not be brought in twice during the same Session. These were the Parliamentary antecedents on which the hon. Member relied, and he (Mr. Selwyn) accepted them as auguries of the success of the present measure. The Endowed Schools Act, which came from the House of Lords last Session, and to which 684 the hon. Member had referred, passed both Houses as a measure of conciliation and compromise; but he put it to the hon. Member whether the course he now took was favourable to further conciliation or compromise? If they were called upon, before the ink in which a measure of conciliation was written was dry, to cast it aside, or to consider it merely as a stepping stone for future aggressions, was that encouragement to proceed further in a conciliatory course? He thought that if there was no other objection to the Bill of the hon. Member than that of the time at which it was brought forward, it ought to be sufficient to stop its progress, for they had as yet no sufficient experience of the operation of the Act of last Session. He asked the House to consider this question entirely free from party considerations — not as a question affecting exclusively the Church of England, but as one involving the interests of religious education among all classes of the community. He asked hon. Members opposite to exercise their own judgment in this matter, and to liberate themselves from the dictation of that society whose business it was to perpetuate and embitter religious disputes, and he invited the House to confirm its decision of last year by adopting the Amendment, which he had the honour to move—That the Bill be read a second time that day six months.
§ Amendment proposed, to leave out the word "now," and at the end of the question to add the words "this day six months."
§ MR. MELLOR
said, he should support the second reading of the Bill, upon the grounds of common justice and common sense. He did not hesitate to say that if the question were now mooted for the first time, and were unembarrassed by the external and artificial considerations that had been thrown around it, it would not hear discussion. His object in supporting the Bill was to put an end to litigation, and to effect that it was of importance that they should deal decidedly with the question, and that they should shut out from the consideration of the will of a founder all those sources of information that were not to be found in the will itself. It was the very fact of the Court of Chancery having had recourse to those sources of information which lay beyond the bequest of the founder that bad led to the present state of things. In the case of Lady Hewley's Charity, as the hon. and learned Gentleman 685 (Mr. Selwyn) knew no two persons were agreed as to what sources of information they should have recourse to. Lord Cottenham ultimately decided that they must go by the form of the deed, and take evidence in particular cases. Notwithstanding what had been said by the hon. and learned Member opposite, there was the: greatest doubt as to the eligibility of Dissenters to act as trustees. When giving judgment on the final appeal to the House of Lords, in the Ilminster case, Lord Campbell gave his assent to the doctrine that there was absolute disqualification of Dissenters; but he said there was a question of discretion to be exercised in each particular case; and that if there was no other objection except that a person was a Dissenter, it did not follow that he should be removed. The Bill was utterly distinct from the Bill of last year, which was not withdrawn in consequence of any decision of the Speaker, but because it was understood it would conflict with the Ilminster School case then under the consideration of the House of Lords. The Bill was withdrawn because a discussion was thought unadvisable at the time; and not from any doubt of its propriety. A rule had been laid down by the Master of the Rolls with reference to the distinction to be made between three classes of charities. In ecclesiastical charities the opinions of the founders were of paramount importance, and the religion taught should be the established religion of the country, in the absence of any other direction. In educational charities the opinion of the founder was only of value where some direction was given by him relative to the religious instruction that should be given. In eleemosynary charities the religious opinion of the founder formed no indication of his intentions, the presumption being that he included all parties, and the adverse proof lay on the other side. In one of the cases referred to the costs amounted to £4.000, payable out of the funds of the charity, and unless steps were taken to put down litigation, in what condition would they be when other questions came to be decided? The existing trustees presented the new trustees to the Charity Commissioners or to an equity Judge, and the best security was afforded that if they should commit a breach of trust or attempt to introduce anything against the Church of England they would be removed for breach of trust. There was sufficient protection, therefore, from any danger resulting from the eligi- 686 bility of Dissenters. Would any man refuse to make a Dissenter his executor or trustee if he thought him the most eligible person he could select? Surely, then, it was not wise to limit the discretion or to say that the fittest person to be trustee should not be eligible for the office because he was a Dissenter. He wanted to widen the circle of eligibility rather than allow the question to remain in its present uncertain condition. The great object of the present Bill was, in the first place, to proclaim the principle of religious liberty rightly understood, and, in the next, to prevent the waste of the funds of charities by unnecessary litigation. When hon. Gentlemen spoke of excluding Dissenters from the trusteeship of those charities he asked them to define what a Dissenter was. He had taken considerable pains to inquire into this subject, and he confessed he did not know what a Dissenter was. He doubted much whether even the hon. Member for Sheffield (Mr. Hadfield) was a Dissenter in any legal sense. The men who formerly suffered pains and penalties rather than conform were Dissenters, but the Acts imposing those pains and penalties were repealed. When mayors and other officials were compelled to join in the most solemn ordinances of the Church before they could take office, he could understand who were Dissenters and who not; but there were no such distinctions now. The person called a Dissenter had to pay tithes and church rates; he had a right to he buried in the churchyard; he might be made a churchwarden, and he had a right to a seat in the church. It was not refusing to go to church that made a Dissenter. There were, no doubt, hon. Members of that House who did not go to church, and yet who would not like to be called Dissenters. Was it the amount of a man's belief that made him a Dissenter? No, for in the Church of England a man might believe many things declared by the authorities of the Church to be at variance with its doctrines, and yet be no Dissenter. Indeed, unless a man made some open, declaration that he was a Dissenter, he (Mr. Mellor) knew nothing in law that, entitled any one to call him so. In each individual case that came before it the Court of Chancery might be able to discover whether a man was a Dissenter or not; but, in initiating litigation, how was it to be known whether a man was a Dissenter or not? It was high time to put an end to the doubt and uncertainty that now pre- 687 vailed, and to consequent litigation, and the House should declare, once for all, that no man should be ineligible for any trusteeship on account of his opinions, provided he is legitimately chosen to act— that, in short, there should be no exclusion except such as rested on the words of the founder.
§ SIR WILLIAM HEATHCOTE
said, that the real question at issue in this debate was, whether the House was prepared to enact that one particular class of deeds was to be construed on principles quite different from those now applied to all deeds by the Courts of Equity. The Courts now gave complete effect to the actual words of every instrument so far as their meaning was clear, and it was only in cases of obscurity, ambiguity, or incompleteness of expression, that they proceeded to supply the defect by implication from the actual words, or by evidence as to the sense in which those words must have been used under the circumstances of the time when the deed was made. It was now for the first time asked by the promoters of this Bill, that in one particular class of deeds—namely, those by which trusts have been created for the maintenance of endowed schools or charities, such defects should not be supplied by implication, however necessary in reason or by evidence, however indisputable in fact, but by an arbitrary construction to be imposed by the Legislature, and that in all cases the Courts should be compelled to hold that, however strictly the purposes of the trust might be defined as being for the promotion of the objects of some particular Church or religious community; and however plain it might be, from historical or other evidence, that the founders could not have contemplated the appointment of any trustees except such as were members of that church or community, still unless in terms all others were excluded, the founders must be taken to have included all of every denomination which might spring up to the end of time. The hon. Member for Swansea (Mr. Dillwyn) had said in former Sessions that he only desired to extend the benefits of endowed schools to children of all denominations, but that in the appointment of trustees he had no wish that any other than members of the Church should be eligible in such trusts as had been specially designed for the benefit of their Church. But now, having obtained the first object by an Act passed in the last Session of Parliament, 688 he now proceeded to urge, as a proper consequence of that Act, the importation of foreign trustees into these charities. The hon. Gentleman had also relied upon another Act of last year, which provided that the Charity Commissioners should not remove trustees on account of their religious opinions. But that enactment did not in the least touch the question whether any particular trustees were or were not disqualified by their religious opinions in any given case, but only provided that the jurisdiction over such a question should still reside where it now is, in the Courts of Equity; and that the Charity Commissioners, though largely empowered to deal with these endowments in other respects, should have no power to enter upon this part of the subject. The hon. and learned Member for Nottingham (Mr. Mellor) had appealed to common sense and to the need of diminishing litigation and expense, in support of this Bill, but with little foundation for his argument. The common sense of the matter was, that there should be one rule of construction and of evidence to govern the Courts in the interpretation of all deeds. To introduce a new principle for one class of deeds alone, as now desired, would let in doubt where none existed before, and would thereby increase instead of diminish litigation and expense; and in all cases of doubt the proposed plan would shut out from the Courts much of the light by which they are now guided in their decisions to the real truth of the case. These new doubts and increased litigation and expense would occur in reference to endowments belonging to all denominations, and not to those of the Church only; and the only reason why the Church would be chiefly affected was the fact that more of the schools and charities, with the endowments and trusts of which it was proposed to deal, belonged to the Church than to any other religious body. He looked on the Bill as dangerous in every aspect, and would support the Amendment of his hon. Friend the Member for the University of Cambridge (Mr. Selwyn).
§ MR. LOWE
Sir, I hope I have so much credit with this House as not to be supposed to be actuated by the motives that influence those who send round circulars on this question, and that the House will give me credit for desiring to take that course only which shall, as far as possible, prevent vexatious litigation and promote efficiency in the management of these charities. The first question is, 689 whether the state of the law is such as to prevent the necessity for legislation. Now, upon this point, we have in the Ilminster case the decision of Lord Campbell, that whether every trustee of a Church of England school shall be a member of that Church, is a matter for the discretion of the Court; while Lord Chelmsford laid it down as the rigid and unbending rule of law that every such trustee must be a member of the Church of England. If it were conceded by hon. Gentlemen opposite that the Court of Equity has a discretion, I should he very well content, for my part, to leave the law as it stands; but it is very desirable that any doubt on this point should be put an end to, for I cannot imagine any state of things more calculated to invite litigation and waste the funds of a charity than the present uncertainty on the state of the law. Well, now, let us consider the policy of the present Bill. The hon. and learned Member for the Uiversity of Cambridge (Mr. Selwyn) has told us that it is a rule of the Courts of Equity to exclude persons from being trustees and to remove them from their trusteeship when they are of a different denomination from that of the school of which they are trustees. But that only proves the case on which the Bill rests. The argument only proves what the hon. Member for Swansea (Mr. Dillwyn) assumed, that the rule does exist, and that it is expedient to alter it. We are not now engaged in settling the preamble—if that be incorrect it can easily be altered — but we have to consider whether it is expedient to declare that the single fact of a trustee being of a different creed from that of the founder of a grammar school shall be as absolute a disqualification, in the words of Lord Campbell in the Ilminster ease, "as a conviction for felony." I submit that this is not a mere question of the construction of a deed, but a rule of practice and discretion. The Courts of Equity, when the school is founded for teaching a particular creed, have deduced as an inference that it would he improper to appoint trustees of a different religious persuasion. My hon. Friend has, therefore, to deal with the propriety of the rule which the Courts have laid down. Is it expedient that a person of a different religious faith should be, by his faith, absolutely and irrevocably disqualified from being a trustee of that school? Now, in the first place, by the Endowed Schools Act, which I had the honour of carrying through this House, it was enacted that 690 the trustees of Church schools are bound, and may be compelled, by mandamus from the Queen's Bench, to open their schools to the children of Dissenters without imposing upon them instruction in the doctrines of the Church of England. Now, if Parliament saw fit to give the children of Dissenters this right, is it not reasonable and fair that there should be some one on the Board of Trustees to protect their interests, if any endeavour should be made to deprive them of the rights that the Legislature intended to confer upon them? That, I think, is only fair; and it is the only way to prevent those quarrels and those beginnings of encroachments which, if not checked at first, lead in time to litigation. It is within my knowledge—for it is part of my duty to know what is going on in these schools—that in many cases the rule laid down by the Courts has been attended with great injury to grammar schools. They are places of general instruction for the youth of this country, and they have property to manage. In a small country neighbourhood it is very desirable to have on the Boards of Trustees men of wealth and intelligence who may be willing to give their time to the business of the school, and whose religious opinions ought not to incapacitate them. I know an instance in which much zeal was shown by a clergyman to get rid of a Roman Catholic trustee to a Church of England Grammar 8chool; hut that attempt was resisted by the other trustees on the ground that this gentleman was the life and soul of the whole establishment, and gave more time to the business of the school than all the other trustees together. I think, therefore, that the Judges of the Courts of Equity ought to be allowed a discretion. I do not dispute that religion will be a great element in guiding the Courts, but I think it ought not to be entirely binding on them. If such a rule were rigorously enforced it would cripple the efficiency of the Boards of Trustees and often injure the management of the schools. There is another argument in favour of the Bill, that in such a case as that of Ilminster it would not be competent for one litigious person to disturb arrangements under which for hundreds of years Dissenters had acted as trustees, and to fix on Dissenting trustees a mark of social inferiority. Hon. Gentlemen argue the case somewhat as the exclusion of the Jews from this House used to be argued. We were told that the Jews might obtain a majority in this House, and it is also as- 691 sumed that the trustees of Church of England schools may in time become all Dissenters; but no fear need be entertained of such a result. It is in the power of the trustees to limit the number of Dissenters, and if any trustee should be troublesome he can be got rid of without spending a penny of the funds in litigation. I do not think it desirable, in order to perpetuate a state of things that is good for no one but speculative attorneys having an eye to bills of costs, to deny the Dissenters some one to look after their interests on these Boards; nor do I think it desirable to cripple the management of these charities by withdrawing those who may be able to promote their interests and increase their efficiency. I should be sorry to see the House force Dissenting trustees upon unwilling Boards; but, on the other hand, I am sure it cannot be for the advantage of these charities to declare that to be a Dissenter is an absolute and irretrievable disqualification.
§ SIR HUGH CAIRNS
Sir, I should have been glad to leave this question to be decided on the clear and unanswerable speech of my hon. and learned Friend the Member for the University of Cambridge; but the arguments of the right hon. Gentleman who has just sat down were so different from those employed by the author of this Bill, that I cannot help making a few observations upon them. It has been said that this Bill is not founded on any doubt as to the law. Now, I take the Bill, and although the right hon. Gentleman says we are not now considering the preamble, I think that every one who lays a Bill on the table is bound to justify the preamble. Well, what do I find in the preamble of this Bill?—"Whereas doubts have arisen as to the eligibility of certain persons to be trustees of certain charities, and it is expedient to remove such doubts." This must mean that doubts have arisen in courts of justice, and not that two men who may meet in the street differ in opinion as to the law. Now, I affirm, without fear of contradiction, that there is no doubt whatever, that there never has been a doubt, and that no judicial authority has expressed any doubt as to the state of the law. The rule—the invariable rule, as long as there have been any decisions on the subject—is that, given the case of a charity founded for teaching one particular creed, the persons to be appointed trustees are to be persons of that creed. There are doubts, and there always have been doubts, whether upon the construction of 692 the trust deeds a charity is founded for teaching one particular creed, as in the case of Lady Hewley's Charity for "poor and godly preachers of God's Holy Gospel," when it became a question who were intended by this description. But such doubts are not and cannot be touched by this Bill. I call on those who support this Bill to justify this statement of the preamble that any doubt has been entertained. The right hon. Gentleman (Mr. Lowe) refers me to the expressions of Lord Chelmsford and Lord Campbell; the first of whom says the appointment of trustees of the same religion as that taught in the school has been the unvarying and unbending rule of the Courts; while Lord Campbell lays it down that the Courts of Equity have a discretion. But the two propositions are identical. The discretion of which Lord Campbell spoke was a discretion exercised by the Courts upon fixed and well-known principles, and the Court of Chancery has always said, the exercise of our discretion compels us to do this. The two propositions of the two noble and learned Lords were, therefore, only two different ways of stating the same proposition. The first objection to this Bill is, that it proceeds on a false basis, and that if the House should affirm it by a second reading it affirms that which cannot be substantiated by the House. The second proposition of the Bill is, that no one shall be ineligible as trustee on account of his religious opinions, unless the founder in his trust deed expressly says that the trustees shall be members of a particular sect. Now, why do you say that? Why are you afraid of your own principle? Why do you say, "unless it is expressly said in the deed to the contrary?" I can understand an hon. Gentleman, with strong opinions on the subject, coming down to this House and saying, "The whole of this is absurdity," and then that he should propose that no person should be ineligible as a trustee on account of religious belief. That would be intelligible, and would doubtless put an end to litigation. But why are you afraid of your own proposition? You say you do not want to interfere if the author of the charity says the trustees shall be of a particular creed. You say you want to carry out the will of the founder. Now I want to know on what logical principle you obey the will of the founder when it is expressly stated in the trust, and refuse to obey it when he has equally declared his will by a necessary implication. I hope 693 we shall have that question answered before we go to a division. Suppose that a member of the Church of Scotland founds an educational charity, and that the trustees are to choose a master whose religious opinions are to be in accordance with the Westminster Confession of Faith. Do you mean to say that, because there was no express declaration that the trustees should be of the same creed as the founder, there was no implied restriction of that kind? Do you contend that, in such a case, the trustees might be Unitarians, Roman Catholics, and members of the Jewish persuasion? Remember that in such a case the trustees would have to judge whether the doctrines and teaching of the schoolmaster were in accordance with the Westminster Confession of Faith. The right hon. Gentleman says his object is to promote harmony. But whenever new trustees are to be appointed, the question will be raised whether the wording of the deed was express, or whether it only raised an implication. So much for litigation. As to good will, I will ask is it the way to conciliate good will in the administration of a charity where one particular religion is to be taught, to mix different religionists in its superintendence? Let us suppose a charity founded for teaching orthodox Presbyterianism, and that to promote harmony, as the right hon. Gentleman recommends, the trustees consist of three Roman Catholics, three Unitarians, three members of the Church of England, and three orthodox Presbyterians. Is that the mode by which peace and harmony are to be promoted? I can only say, they would be a nice specimen of a "happy family." I say, on the contrary, that peace will be better promoted if it is known that the trustees must be members of the same creed as the founder, and that they will be then more likely to act in harmony on all matters affecting their creed and religious persuasion. The right hon. Gentleman tells us we are bound to pass some such measure in consequence of the Act of last year. That Act was one of great liberality, and it authorised the children of Dissenters to participate in the education given by a charity without being bound to accept the religious education given there. The right hon. Gentleman accordingly argues that there ought to he some Dissenters on the Board to protect the faith of these children. He says he is not afraid that by the operation of the Bill every person on 694 the Board may come to be of a different religious opinion from that of the founder of the charity. The right hon. Gentleman tells us that some persons opposed the Jewish Emancipation Bill on the ground that the Jews might come to be a majority in this House. I did not oppose it on any such ground, but as the right hon. Gentleman says, so I will assume that some persons did. But has that any connection with the appointment of trustees of a charity? We are sent here by an electoral body outside, and ours is a fixed and determinate number, which is always kept up. But in these charities there is not a day on which it is not found that, by the deaths of some trustees, and the carelessness of others, the number is reduced to one, two, three, and four trustees. The surviving trustee has, then, the power of filling up vacancies; but we are not likely in this House to finish with a survivorship, and to be reduced to a single Jew who shall say who is to succeed him. All that the Act of last year said was that the children of persons not of the same persuasion as that taught in the school were not to be obliged to receive religious education in the school. Sufficient protection already exists that this Act will not be contravened. The children and parents would instantly know if such religious instruction were given, and on a complaint to the Charity Commissioners the matter would be immediately set right. There is, therefore, ample and full security that the Act of last year will be complied with. The right hon. Gentleman told us, that unless we passed this Bill we should constantly have litigious men putting the law in motion; but I thought that the power that formerly existed, by which any one member of the public was able to set the law in motion and disturb the arrangements of these charities, had been taken away by this House. The Charitable Trustees Act now prevents that abuse. By that Act, before any one can put the law in motion in respect to these charities, he must go to the Charity Commissioners and get their consent. As to the Ilminster case, the Commissioners thought it one for litigation— one in which the Courts ought to set right things which were not going on properly. No unnecessary litigation, therefore, can take place, nor is the Bill required on this account. For these reasons I shall give my hearty support to the Amendment of my hon. and learned Friend.
said, he wished to enter his protest against the dogma laid down by the right hon. Gentleman opposite with all the authority of the Minister of Education, that because last year Parliament gave permission to children whose parents or themselves held different religious opinions from those of the founders of the schools into which they sought admission to go into those schools and receive secular education without the particular religious instruction required by the founder, therefore, ex debito justifyœ, they were now bound to admit trustees of the religion of those children in order to protect what he called the rights of the children. But where was this to stop? They were entering on a new era. Six or seven years ago the highest educational institutions in the country were dealt with—some thought strongly; but, however, that might be, although fair opportunity was given to all persons to participate in the education given in those institutions, yet, after a long and solemn debate, the Legislature refused to admit into the governing body of the Universities persons of a different religious persuasion from that of the State. That was deliberately done, and a great principle was involved in it. So it was at the lower end of the scale. All religious denominations now educated their children with assistance from the State, according to their respective views. Many of them, more or less, would admit children to the benefit of secular education, without insisting on their special religious teaching; but they had all recommended that the governing bodies of those schools should be of the religious denomination of the founders. The right hon. Gentleman opposite, standing in this House as a Minister of Education, argued the question wholly apart from the Bill. He said, because you choose to introduce children of the different persuasions into these schools, you are to alter the governing body. He (Mr. Henley) objected to that doctrine. The argument, if pushed to its fullest extent, would amount to this. If they had children of different persuasions in the school, there roust be a trustee to every one of them, and there would be Wesleyan, Roman Catholics, Unitarians, and all the rest, and this would produce such a confusion in the country as the right hon. Gentleman probably little expected. The argument against the Bill had been so admirably urged by the hon. and learned Member for the University of Cambridge, and by 696 the hon. and learned Member for Belfast, that he should not presume to say a word in support of what had been advanced by them, but he had felt it right to enter his protest against the doctrine laid down by the right hon. Gentleman the Vice President of the Board of Education.
§ MR. DILLWYN
said, that the hon. and learned Member for Cambridge (Mr. Selwyn) had found much fault with some words in the preamble of the Bill, namely, that "doubts had arisen as to the eligibility of certain persons to be trustees of certain schools." A verbal error might be corrected in Committee. But he contended that it was correct. The conflicting opinions of the Judges in deciding the recent case to which he had referred showed that there were doubts. Then the hon. and learned Member for Belfast (Sir Hugh Cairns) had ridiculed the proposal to introduce Dissenters into trusts, on the ground that they would be the means of converting these trusts into anything but "happy families." Well, he (Mr. Dillwyn) might mention the case of Ilminster, where there had been for years a mixed trust without quarrels, till the Church interfered to eject the Dissenters; and further, he might allude to Swansea Grammar School, which was administered by a mixed trust, but in which there never had been the least difficulty or disagreement. The hon. and learned Gentleman (Mr. Selwyn) had drawn a vivid picture of an Independent rising from his grave, and being shocked that the school which he had founded had come into the hands of Catholics. He (Mr. Dillwyn) could not help thinking, while that was said, that the hon. and learned Gentleman was a Member for one of the large seats of learning in the country which owed most of its institutions to the charity of another religion. And the image arose to his mind of a deceased Catholic rising from his grave, and finding his churches and schools administered by those whom he would have deemed "heretics." He (Mr. Dillwyn) thought that the administration of all these endowments by the Church of England was perfectly right, so long as it was for the benefit of the whole community. But he thought that administration should be changed from time to time, according to the changes which were taking place in the religion and opinions of the country. Where the intention of the founder of an endowed school was perfectly clear, even by implication, it should be allowed to have full force; but he denied such an implica- 697 tion as that the words "honest man" were intended to mean a Member of the Church of England to be clear or free from doubt, and disputed the right of any legal tribunal to place an interpretation upon the wishes of a founder where there was the slightest possibility of a mistake being committed, and where it would have the effect of narrowing the benefits of the foundation. He believed if the measure were passed, it would remove the feeling of exclusion which now was felt. It would legalise the status of Dissenters, and remove the source of many discords.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided:—Ayes 164; Noes 157:—Majority 7.
§ Main Question put, and agreed to.
§ Bill read 2o and committed for Wednesday, the 17th April.