The LORD CHANCELLOR
My Lords, in rising to move the second reading of this Bill, I feel that I have not a very agreeable task before me. This Bill has been introduced and read a second time in your Lordships' House on two different occasions. On each of those occasions I explained in 734 detail the principle on which it was founded, and the evils it proposed to remedy, and I confess it is no pleasing task to me to go over the same ground again; and it must be still less pleasing to your Lordships to listen to me. But this is not the only ground of present discouragement. In consequence of an extensive combination throughout the country against the Bill, I cannot but feel that a strong impression against it has been created in the minds of your Lordships. I recollect that on a former occasion, when a similar subject was debated before the House of Commons, Mr. Fox quoted the saying—"Numquam magis libenter loquor, quam cum quod loquor auditoribus displacet." It is far from my intention to merit that description. I am not of a temper so pugnacious as the gentleman to whom that was applied; but I must admit that I should feel still greater discouragements than I do feel on the present occasion, if I were not disposed to make great concessions to the feelings and opinions of individuals, to make great alterations and exceptions in the measure, and if I did not feel strong also in the conviction that, after a due consideration of its provisions, it will be impossible for your Lordships to vote against the second reading. My Lords, I will not trouble your Lordships with a detail of all the circumstances which have led to the introduction of the present measure. Your Lordships all recollect that a Commission was some time since issued at the instance of my noble and learned Friend. That Commission sat for a long period. It made various and able reports on the state of the charities, and concluded its labours by recommending the introduction of some legislative measure, providing more effectually for the due administration of charitable trusts. Before the last report of that Commission was issued, a Committee of the House of Commons was appointed, consisting of some of the most able, intelligent, and active Members of the House, for the purpose of considering the reports of the Commission, and giving their advice on the subject. That Committee finally reported, after much inquiry and much consideration, that it was necessary to establish a permanent Commission to superintend the Charitable Trusts of this Empire; and they recommended also that that Commission? should be clothed with the authority of, and have powers similar or nearly analogous to those contained in, the present Bill. In consequence of the report of that Committee, it was pressed upon Her Majesty's 735 Government by Members of the Opposition to bring in a Bill for the purpose of giving effect to their recommendations. The Secretary of State for the Home Department acceded to the wishes so repeatedly expressed, and requested me to prepare a Bill. Accordingly I introduced the Bill now before the House in the Session before last. At the request of a right rev. Friend I consented to allow it to stand over until last Session, so that ample time was afforded for consideration and inquiry. Last Session I introduced the same measure again, and the Bill was read a second time, on the understanding that it would be referred to a Select Committee. It was so referred. The Committee consisted of several Prelates, of all the noble and learned Lords, and of other noble and distinguished individuals who felt more particularly interested in the subject of deliberation. The Committee bestowed the most attentive consideration upon the Bill. It sat day after day; several amendments were suggested, considered, and adopted; and after a long inquiry, the Committee made its report, approving of the Bill as it has been laid before your Lordships. On the third reading the Bill passed without opposition, except some dissentient opinion that was murmured against it by my noble and learned Friend. The Bill then went down to the other House of Parliament; but, in consequence of the late period of the Session at which it was brought into that House — that lateness being the result of the delay before your Lordships' Committee—it was impossible to pass it during the last Session. My Lords, I have this year thought it my duty again to lay this Bill upon your Table; and after it has once passed your House with so little objection, with, I may say, such general sanction and concurrence of opinion, I own that it is with no little surprise that I hear of the extensive combination which has been raised against the Bill, with the view of defeating it at its present stage. My Lords, I have thought it my duty to give your Lordships this short history of the Bill in a clear and concise manner, to show that I am justified in bringing it forward for your Lordships' consideration, and in requesting you to adopt it. When an individual proposes to make any alteration in the law, it is incumbent upon him to state what the law is, what are the grievances complained of, and what is the nature of the remedy which he proposes to provide. I shall pursue that course on the present occasion, and direct 736 your attention as clearly and as plainly as I can to this subject. Every one knows that the only tribunal in this country which has any jurisdiction over Charitable Trusts is the Court of Chancery. There is no other tribunal of any description which has the power of controlling any abuse, or assisting persons who complain of the maladministration of charitable trusts. I readily admit, and I stated so in the last Session of Parliament, that there is no tribunal in the country which, with respect to the machinery which forms part of its constitution, and for other causes, is better calculated to do justice in such cases than the Court of Chancery—a court which has for a long series of years been presided over by men of great learning, wisdom, and prudence; and under whose superintendence and direction a system has grown up well adapted for the discharge of the duty. But for one circumstance, therefore, I should never have thought of bringing in a Bill of this description. If every charity could practically be brought under the consideration of the Court of Chancery, I should feel an entire and implicit acquiescence that justice would be done. But, unfortunately, my Lords, there are few charities that can come under the consideration of that court. As far as the great charities are concerned, it is a tribunal without exception; but, even in regard to these, it is impossible not to feel that enormous expenses are incurred by appeals, and that great deductions are consequently made from those funds which ought to be solely employed in the purposes of the charity. In the case of charities of more moderate amount, ruinous expenses are incurred in an application to the Court of Chancery, whilst, with respect to the smaller charities, the doors of the court are absolutely closed against them. My Lords, no man of sane intellect, or of tolerable experience, would recommend an application to the Court of Chancery in the case of small charities. The consequence is an absolute denial of justice. Whatever abuses take place in their management, parties are bound to abstain from all application to the court; for the expenses of one day's entrance into that court would annihilate the charities to which I refer. Will your Lordships allow such a state of things to continue? That great and excellent person, Sir Samuel Romilly, attempted to remove the evil; and he brought in a Bill providing that, instead of proceeding by Bill, parties should obtain a summary decision on petition. But even this was an 737 expensive form of proceeding, and the costs were far greater than the smaller charities could by possibility sustain. Sir Samuel Romilly was perfectly acquainted with the difficulty resulting from the expense of the Court of Chancery in the case of great numbers of these charities; and on one occasion, in a debate which took place in the other House, he declared in the strongest manner that the Court of Chancery was inapplicable to give a remedy to abuses in the charities of this country. Have I not stated enough to show to your Lordships the necessity of passing some measure of a remedial character? Perhaps your Lordships may suppose that the evil is not sufficiently extensive in its application to require legislative interference. But when I mention that there are no less than 15,000 charitable trusts in this country not exceeding 5l. per annum in value; that of charities not exceeding 10l. annual value there are 18,000; and of charities not exceeding 20l. that there are 24,000; when I mention this, your Lordships will see the extent of the evil, and the absolute necessity of administering a remedy. My Lords, when I state the case in these general terms, I am aware that I shall not produce so strong an impression upon your Lordships as I shall if I advert to two or three instances which I shall take from the Report of the Committee. At Ashby, in the county of Lincoln, there is a charity, in the shape of a rent-charge, of 30l. per annum. This is an amount of no inconsiderable character, and much beyond those of which I have just now spoken. The trustees of this charity died, and it was found that there was no surviving trustee. The charity was founded in the 16th century, and the rent-charge had been paid up to a certain time; the property was then sold, and the person who purchased it paid the rent-charge for a year or two, but he was then told there was no person who could give him a proper discharge, and it was no longer paid. The arrears ran on, and some one then brought the case into the Court of Chancery. The master reported 375l. should be paid; an order was made to that effect, and it was then found that the expenses incurred had been 400l. and upwards, more than the value of the sum recovered. Is this a state of things that you will allow to continue? I will now give your Lordships another case, one in which there was no contest as to the administration of the charity. This was a case at Battle, in Sussex. A house was 738 falling into ruins; the trustees were desirous of selling it, and purchasing stock. They applied for leave to the Court of Chancery; the matter was referred to the master, who reported in favour of a sale. The transaction was completed, and the property realized 1,350l. The costs of that undefended suit were 350l., and one-third the amount of the charity was thus spent in producing an exchange in the nature of the property which was for the benefit of the charity, and to which no opposition was made. In another case, which occurred at Lawford, Essex, some property had been let by trustees, at a rent of 60l. per annum; it was thought the property was under-rented, and the matter was brought into the Court of Chancery. The proceeding went on for some time. The parties, however, became tired of litigation, and it was agreed that each should pay their own costs. The cost so incurred by the charity amounted to 600l. Is it necessary, my Lords, to say more? I stand here to show, that however well adapted the Court of Chancery may be to inquire into such subjects, it is not calculated to do justice in the case of the small charities to which I have just referred, and much less to those of 5l. 10l. and 20l., of which, as I have stated, there are no less than 24,000. I could multiply instances without number such as I have detailed, by referring to the Report of the Commission, but it is not necessary. I think those I have already quoted must have carried conviction to your Lordships' minds. But, perhaps, my Lords, it will be said that there are no abuses, or that they are of very rare occurrence. My Lords, every person acquainted with the world and with human nature would expect beforehand that abuses would be frequent and constant under such circumstances. Every person must be satisfied that in trusts of this description, where the administration of them cannot be investigated, and redress cannot be afforded, there must be extensive abuses. But it is not necessary to rely for proof of this point upon general reasoning: I refer you to the Report of the Commission, every page of which is full of instances of this character. My Lords, that Commission reported that in the cases of 385 of the large charities abuses prevailed; and they recommended the filing of informations to that extent. If the abuse of large charities was so extensive, your Lordships will easily conclude to what extent they have proceeded in the smaller cases. But I 739 shall now call your Lordships' attention to the opinions of two authorities, who for twenty years gave their attention to the subject; I mean Lord Kenyon and Lord Eldon. Lord Kenyon said—Whoever will examine the state of the grammar schools in different parts of this kingdom, will see to what a lamentable condition most of them are reduced. If all persons had equally done their duty, we should not find, as is now the case, empty walls without scholars, and everything neglected but the receipt of the salaries and emoluments.Lord Eldon said—It is absolutely necessary that it should be perfectly understood that charity estates all over the kingdom are dealt with in a manner most grossly improvident, amounting to the most direct breach of trust.That is a general opinion which will apply to charities of every description. If it applies to the cases of charities over which the Court of Chancery can exercise a practical influence, how much more must it not apply where that is not the case, and where there is nothing to control parties, or to keep order in the proceedings? I ask your Lordships whether it is not necessary to put an end to such a state of things, and whether you will not think I have acted a proper part in endeavouring to apply a remedy? My Lords, I have now shown you how the present system operates. It often happens that property is conveyed to trustees without any power being given of appointing new ones. The trustees die, and the only mode in which the trust can be renewed is by an application to the Court of Chancery. Such an application in the case of a small charity is absolutely impossible. What is the result? A rent-charge is created upon real property. The owner of the property pays the rent-charge for a considerable time; he is afterwards told, according to the case I have before referred to, that there is no person in a situation to give him a discharge; he refuses to pay any longer, and the property becomes his own, free of the trust, because it is impossible to apply to any tribunal to enforce the payment. This, my Lords, is the case of a great number of charities given to trustees, to be aplied according to the will of the donor, where there is no power to renew the trust; but in a great number of cases where power is given to renew the trust, it constantly happens that that power is not acted upon, the trust expires, and the same consequences follow as those to which I have referred. Again, my Lords, with respect to personal property. Stock is given to trus- 740 tees for the benefit of a charity; the Bank will not allow more than four names to be entered as the owners—will not allow any trust to be entered upon the bank book. Three of the trustees die, the whole property is vested in the survivor; he dies, it is vested in his personal representative; no representation is taken out, and the property is lost. These, my Lords, are cases of ordinary occurrence; they are reported by the Commissioners over and over again. The Commissioners complain of this as a great and intolerable evil, and they call for a remedy. There is no remedy at present existing, for an application to the Court of Chancery absorbs and annihilates the property. Will your Lordships allow such an abuse to continue? Having the power to legislate upon the subject, will you allow this monstrous injustice to prevail? Will you suffer a great and numerous class of your fellow subjects, who are unable from poverty and wretchedness to assist or help themselves—will you allow them to be out of the pale of the law, and to be the only class of Her Majesty's subjects that have not a tribunal to which they can appeal for the purpose of protecting themselves from robbery, and from the abuses to which this system must necessarily lead? I know that my noble and learned Friend on a former occasion treated this matter rather lightly. The answer which he gave was this, and it made a strong impression on my mind at the time—"Why the same evil exists with respect to private individuals; if the amount is small, they cannot go into the Court of Chancery." That is an answer which my noble and learned Friend seemed to consider satisfactory; but it was anything but satisfactory to my mind, and I am sure it must be anything but satisfactory to the minds of your Lordships. Why, my Lords, because you cannot do all that you might wish, or cannot go as far as circumstances will allow—because you cannot in every case affecting a private individual afford sufficient redress—will you withhold protection from that large and numerous class of persons to whom I refer, who are utterly incapable of protecting themselves or helping themselves against the abuses which I have described? My Lords, what is the measure which I recommend? What is the remedy I would apply? I am satisfied that no other course can be pursued, as far as relates to the principle of this measure, than that which I have adopted. You must have an independent tribunal applicable to the adminis- 741 tration of those trusts. You must have a tribunal acting summarily in cases of this description. There is no system calculated to meet the evil but that of an independent tribunal, acting summarily, doing justice where justice is required; and applying itself summarily to the administration of these trusts. My Lords, this is the system upon which you have acted with respect to civil rights—the rights of individuals. In the case of debts of small amount, where the party cannot with any propriety appeal to the regular tribunals of the country, you have established tribunals for the purpose of affording redress—Courts of Request acting summarily and deciding without the usual forms of proceeding between one individual and another. I ask you, my Lords, to apply the same system in cases of this description. That system is equally applicable to the one as to the other; and the requirement is at least as strong in the present case as it was in that to which I have referred. I ask your Lordships, therefore, to adopt a system of this kind, as being the only system which is calculated to meet the evil. What I propose, then, my Lords, is this:—that a certain number of persons—three is the number that I have selected, in this Bill, because that is the number which was recommended by the Committee of the House of Commons—should be appointed by the Crown, holding their situations during good behaviour—holding their offices on the tenure by which the Judges of the land hold their offices; not being removable except for misconduct; and I propose to vest them with summary jurisdiction over charities of this description. My Lords, I have never heard, as to this part of the Bill, what has appeared to me a well-founded objection. I have heard it discussed in various ways, and various observations have been made with respect to it; and I have heard it even admitted to the full extent, that the Court of Chancery cannot apply itself to cases of this description; I have heard it admitted over and over again that a summary jurisdiction is the only jurisdiction that can be applied to lessen or mitigate the evil; and therefore, unless I hear some stronger arguments to the contrary than, after all the discussions which have taken place, I have ever yet heard, I must persevere in saying that I think it impossible that any well-founded objections can be made to this plan. My Lords, when the Bill was first introduced to your Lordships' House, the appointments were pro- 742 posed to be vested in the Secretary of State for the Home Department. An objection was immediately made to that, and it was stated that the appointments ought to be vested in the person holding the Great Seal for the time being. I had no desire or wish to have those appointments; but I yielded to a suggestion which was thrown out that the appointments should be made by the Lord Chancellor, and directed that the clause with respect to them should be altered accordingly. My Lords, the Bill went into Committee upstairs; it was much considered and much discussed. An Amendment was moved, that two of the persons holding these offices should be selected from the Masters in Chancery. The question was put to the vote, and it was carried in the affirmative. In that state the Bill came to your Lordships, and went down to the other House of Parliament, and no opposition was made to it either there or when it was returned to your Lordships' House. My Lords, I have thought it my duty in this Bill to make an alteration in that respect; but when I say I have made that alteration, I do not mean to say I will abide by it if good reason can be given why that alteration should not be persevered in. When the Bill goes into Committee, your Lordships will be able to say what is your opinion as to what shall be the composition of the tribunal which it is proposed to establish. I have thought it right to strike out that provision in the Bill which required that two of the offices should be held by Masters in Chancery; and for this reason, that we could not compel Masters in Chancery to accept the office, and if they should decline, or if it should be inconvenient for them to do so, it would follow that the Bill in that form could not be carried into effect. I have therefore proposed that it should be left so that the persons to be appointed may be selected out of that learned body, instead of making the selection compulsory. I also propose that they may be selected from barristers of long standing, or from any persons who have filled the office of Vice Chancellor, or from persons who have filled the office of Chief Justice of India. Those are the persons from whom I propose to select the officers to be established by the Bill. This, however, is not essential to the principle of the Bill. The real question is—will you have a tribunal composed of a certain number of Commissioners holding their offices during good behaviour inde- 743 pendently of the Crown—holding office by the same tenure by which the Judges of the land hold theirs? If your Lordships are in favour of such a proposal, you will consent to the second reading of this Bill, and will go into Committee for the purpose of examining the details, of regulating the Bill according to the judgment which you may pronounce with respect to its several parts. Now, my Lords, I believe, that with respect to the part of the Bill to which I have hitherto referred, there will not be much difference of opinion among your Lordships. I can hardly suppose it possible that your Lordships will not agree in the necessity of adopting some measure of this description. The evidence is so strong and so decisive, so much in one direction, that it appears to me impossible that there can be any difference of opinion upon that subject; but then, my Lords, I come to another point, which, though undoubtedly of importance, may be considered of inferior importance to that part of the Bill to which I have referred, but to which I will now direct your Lordships' attention. I have thought it of great importance that the persons holding the office of Commissioners should have a right to call upon all charities for an account of their receipts and disbursements—not to inquire into the administration of the charity—not to have any control or any authority over the administration of the charity, but merely to call for an account; because I am satisfied of this, that if any charity has from year to year to render an account of its receipts, and of the manner in which those receipts are applied, that will be the best and greatest security against abuse. My Lords, I believe, that, as far as relates to the smaller charities which are to come under the direction and authority of the Commissioners, no objection, or, at least, no serious objection, is made with respect to the point to which I have referred; but with reference to the charities of a larger description strong objections have been urged, and I have reason to believe that it is in consequence of the provision that power should be vested in the Commissioners to call for accounts of this description, that the greater part of the opposition to this measure has been urged. When the Bill was before the Committee of your Lordships' House in the last Session of Parliament, this subject was well and maturely considered. The question was, whether there should be any exceptions introduced into the measure? After much inquiry, after 744 much consideration, after much reasoning, my noble and learned Friends all being present on the occasion, and several right rev. Prelates also being present, it was unanimously resolved that there should be no exceptions; and when the Bill came down from the Committee it passed through your Lordships' House without any single objection in this respect being offered to it. I believe, however, that it is in consequence of what I have stated that this combination against the Bill out of doors has been formed. I believe it is owing to the clause to which I have referred. But, my Lords, owing to the opposition which has been raised to the Bill on that account, owing to the storm which has so fiercely and with so much energy been directed against the measure, I have felt myself bound to yield to the representations that have been made, to consent in some degree to modify the Bill, because I am most anxious that this measure, or at least the first part of it, should be passed into a law, and because I feel and am conscious, from all that has passed out of doors, and all that has passed in this House, that if this clause remains unqualified, even if it should pass through this House of Parliament, which I very much doubt, it certainly would not pass through the House of Commons, where the whole Bill would stand a chance of being ultimately rejected. Much, therefore, to my regret, in consequence of the claims to exemption that have been forced upon me from various charities, I am ready to yield to those representations, and to that pressure. I have prepared a schedule for that purpose which I shall annex to the Act, and which I shall submit to your Lordships on going into Committee on the Bill. It is an extensive schedule of exceptions, impairing, I admit, the efficiency of the measure; but yet leaving, notwithstanding, those exceptions a measure of infinite importance to the country—a measure that will be productive, as I apprehend, of incalculable good—and, what is an argument most prevalent with me, a measure which will prevent those abuses and those extraordinary perversions of charitable funds from charitable purposes which have so long prevailed, and so extensively disgraced this country. But, my Lords, before I proceed further, allow me to justify myself, and to justify the Committee, for originally proposing that there should be no exceptions as regarded the provisions of this Bill. The ground on which exceptions 745 have been contended for by some of the great bodies connected with the corporation of the City and by other establishments, is the purity which has characterized their administration of the charities which have been committed to them. They say—"Will you question us, who are the trustees selected by the founders? We have been guilty of no abuse; you can safely rely upon our integrity, our care and our intelligence. Why then interfere with us? Why interrupt the current of this charity? Why interfere when the system works so well, and when no abuse whatever can justly be ascribed to us?" My Lords, I must be allowed, in justification of myself, and, as I have before stated, in justification of the Committee of which I was a member, to refer to some facts which appear upon the Reports of the Commissioners—facts which have been since investigated in courts of justice—for the purpose of justifying me in the opinion which I have formed, and in the construction of the clause to which so many objections have been made. Now, my Lords, it must not be supposed that in what I am about to state I intend to prefer charges against any parties; my only object will be to vindicate those who co-operated with me in framing and preparing this Bill, and in submitting it to your Lordships for your consideration. But among the petitioners to whom I have referred, and who have stated grounds upon which they conceive that, in point of justice, they ought to be exempted from the operation of this Bill, one of the first names that occurs to me is that of the Mercers' Company. By far the greatest opponents of this measure have been the trading companies of the City of London. Now, I take the instance of the Mercers' Company. There was a charity established, I think, in the reign of James the First, by the Earl of Northampton. It was established at Greenwich; and it was to consist of a warden and twenty objects of the charity; and the whole was put under the government of the Mercers' Company, who were to be the visitors, and on every Trinity Monday in each year were to proceed to Greenwich, for the purpose of examining the accounts, inquiring into the manner in which the charity was administered, and seeing that everything was proceeding upon a safe and regular principle. The founder of the charity, Lord Northampton, stated in the charter, that it would not be convenient that a great number of persons should attend on the occasion of the visit: he, therefore, 746 limited the number to twelve, and he allowed the small sum of 5l. a year, to defray the expense of the boat-hire, and of the dinner that should be given on the occasion. Now, my Lords, this visitation has been going on for a great number of years. I hold in my hand a document which also appears in the Report of the Commissioners on Charities; and I give this as a sample, for the purpose of showing whether you can safely and implicitly rely upon the manner in which persons in this situation perform their duty with respect to charitable trusts. I call your Lordships' attention to it as one of several cases: there are very many of the same description and character. Here is an account of the items of expenditure on June 3, 1833:—"To breakfasts, eighteen gentlemen, at 3s., 2l. 14s." I do not mean to say that before they proceeded upon their expedition to Greenwich, it was not proper that they should assemble for breakfast; and I do not mean to say that the charge for breakfast was extravagant. [Laughter.] Well, here is the account:—
§ "1833—June 3.
|To breakfast, 18 gentlemen, at 3s||2||14||0|
|Two tongues, eggs, bacon, and Bath chap||1||8||0|
§ Then came the expenses of the journey to Greenwich:—
|To six carriages and pair, one day, town and Greenwich||7||16||0|
|June 7.—Three dozen of flowers for the hall||1||1||0"|
I do not find this last item in Lord Northampton's list. Then, my Lords, comes a luncheon. I do not find fault with the luncheon. These gentlemen having obtained a good deal of experience in this kind of business, would not much like an extravagant luncheon in point of quantity, because it might operate in that case very unfavourably as regarded what was to follow. The luncheon, therefore, wasmoderate:—"Sixteen sandwiches, twelve lemonades, six punch, one and a half pints cherry brandy, two and a half dozen soda, lemon, sugar." That was the luncheon—moderate I admit. No great fault can be found
with it. It was moderate, probably, for the reasons which I have stated. Indeed, I can speak in some degree from my own experience of matters of that description. I now come, my Lords, to the substantial part of the feast; and your Lordships will recollect that this is the Mercers' Company, which claim to be exempted from the operation of the Bill, on account of the strict and faithful manner in which they have hitherto discharged their duties, and are likely to discharge them again. But this, my Lords, is a rather awkward hour to talk of dinner (it was nearly seven o'clock), and I am afraid I shall have a very thin audience after reading the next passage. However, here is the dinner:—
Dinner.—Four dishes flounders, two ditto turbots, three ditto stewed eels, two ditto mullet, three ditto water souchie, three ditto fried eels, three ditto eels tomatoes, two ditto salmon, one ditto spiced eels, two ditto collops of turbot, one ditto sturgeon, whitebait, potatoes, and cucumbers, sauces.
That is the first course. You see from this what is likely to take place when, at the close of the Session of Parliament, we go to our whitebait dinner at Greenwich. Well, having gone over the fish, I now come to something more substantial:—
Two dishes boiled pullets and white sauce, two ditto ducklings, two ditto raised pies, two ditto hams, one dish of roast turkey poult, one ditto pigeon pie, two ditto geese, one ditto tongue, one ditto quarter of lamb, one ditto roast fowls, one capon.
All this, my Lords, is tolerably and sufficiently solid, but there is a pièce de resistance, as it is sometimes called — "One baron of beef." Then we have—
One baron of beef, two dishes of lamb cutlets, curry with rice, asparagus, peas, ditto stewed, Italian salads, prawns, rice, new potatoes, French beans, cauliflowers, lobster, cucumber, mushrooms, collar, garden beans, sauces and gravies, jellies, baskets, tarts, blancmange, custards, tourts, lemon pudding, plum puddings, officers' dinners.
That was the dinner. Lord Northampton having allowed 5l. for the whole expense, we have had breakfast, luncheon, a first and a second course at dinner, and the sweets. I now come to the dessert:—
Six quarts ice creams, two almond cakes, six lb. hot-house grapes, ten plates strawberries, six ditto oranges, six ditto almonds and raisins, four ditto preserved ginger, four ditto ditto nutmegs, four ditto biscuits, seven ditto olives, two dishes apples, ice for wine.—Cooks and charcoal, hire of china and glass, allowance on forty-one bottles of wine, 1s. each, waiters.
The explanation with regard to the wine at 1s. per bottle, I must mention to your
Lordships. These gentlemen are provident. They supply their own wine, Mr. Lovegrove furnishing the dinners; but, as he does not furnish the wine, he puts a charge of 1s. upon every bottle they drink. I may mention that by the charity accounts it appears that no less than 70l. was paid at one period for wine, and 40l. at another, it being placed in the cellars belonging to the hospital, and brought out on the recurrence of these visits. It appears that on this particular occasion forty-one bottles were consumed by the eighteen persons present. We now come to the tea:—
1½lb. hyson tea, at 12s; 1½lb. souchong ditto, at 10s.; 2½lb. Mocha coffee, at 3s.; 8lb. refined sugar, at 11d.; 8lb. loaf ditto, at 10d.; 41b. Bengal ditto, at 8d.; ½lb. Crown chocolate, at 4s.; 13 nutmegs; 1lb. canister sugar.
And now for the summary of the expenses:—
|Men's beer, &c.||0||19||4|
§ LORD COTTENHAM
My Lords, with every respect to the feelings of my noble and learned Friend on the Woolsack, I feel bound to say, that he has adopted the most extraordinary course with regard to the conduct of this Bill, which he now asks your Lordships to read a second time, which I have ever known to be adopted since I have had the honour of a seat in your Lordships' House. My noble and learned Friend truly told your Lordships that this is a measure of two years' standing. It was brought in by my noble and learned Friend in the Session before last; it went through the ordeal of a Committee last Session; and then my noble and learned 753 Friend adopted, certainly, alterations, because he could not help himself; and those alterations, or rather, the Bill as amended in Committee, was adopted by your Lordships. But my noble and learned Friend has not adverted very distinctly to the reason why, so much having been done, the Bill did not pass into a law. He merely says, I introduce the Bill nearly in the same shape in which your Lordships have already passed the Bill; and he did that in the month of February last. Now, my Lords, a Bill brought in so soon in the Session, must have been under the consideration of Her Majesty's Government during the recess. I feel that, in justice to my noble and learned Friend, I am bound to take it that the Bill did receive full and ample consideration, and that, upon a deliberate view of the bearings of the whole case, he made up his mind to reintroduce the Bill and pass it, or at least try to induce your Lordships to consent to pass it, in the same form as it appeared in preceding Sessions. From the month of February to the month of May, although the subject was frequently discussed before your Lordships incidentally upon the presentation of petitions, and although my noble and learned Friend has been repeatedly asked what his intentions were in regard to the Bill, it is only now—not until this day—that your Lordships have been informed of those intentions—it is only now that your Lordships are put in possession of a knowledge of what my noble and learned Friend states to be such important alterations. Now, my Lords, I ask, is this dealing fairly by the House? I ask, my Lords, whether the House has not a right to know what a measure is, when it is introduced by a Minister of the Crown? The author of the Bill makes, as he states, and very properly states, many important alterations in it; but he makes no statement of the nature of those important alterations, even now when he asks your Lordships to give your sanction to the Bill, by reading it a second time. No doubt any of your Lordships might have procured a copy of the Bill, as it was introduced by my noble and learned Friend, by an application to the proper officer; and your Lordships may have read the Bill as it was originally printed; but that is not the measure to which you are now called upon to give your sanction. My noble and learned Friend says, he proposes great and important alterations. Why, I ask, did my noble and learned Friend not have 754 them printed, that we might have had some knowledge of them, instead of being called upon to legislate in ignorance of what may be their effect? But instead of explaining the nature of his Amendments, the noble and learned Lord has treated us with an account of a bill of fare at a City dinner. What, my Lords, I may ask, has the Mercers' Company to do with the Bill as it now stands? If I understood my noble and learned Friend, the Mercers' Company will be wholly excluded from its operation—indeed, a great part of the speech of my noble and learned Friend went to show, that he is now prepared to exclude from the operation of his Bill a number of charities which, above all others, ought to be included in it. The greater part of the speech of my noble and learned Friend went to show that some of the great London companies had been guilty of very great malversation; that that fact had been duly established by the inquiries of the Commission—that they had consumed more of the good things of this life at Greenwich than they ought to have done—in fact that they had taken better care of themselves than of the charity they were called upon to administer. But having established that fact, what says my noble and learned Friend? He says: "Those companies whom I charge with such malversation of the charitable funds left to their care—those to whom my Bill ought more particularly to apply, I propose to exclude from its operation!" My noble and learned Friend does not now ask us to include, because they have abused their trusts, the Mercers' Company, or the other companies he particularized; the Bill is not to operate upon them! My Lords, I, for one, cannot sanction such reasoning. My noble and learned Friend called your Lordships' attention to a schedule which he has prepared—a schedule of exceptions—a schedule of those charities which are to be excepted from the operation of this enactment. Now, my Lords, I am perfectly sure that as my noble and learned Friend has already begun to make exceptions—as he has already felt it necessary to exclude some charities from the operation of his Bill, those very exclusions will render the whole Bill altogether nugatory. I told my noble and learned Friend the other night, that if he commenced making alterations in his Bill, that if he excluded one charity here and another there, he would be compelled to go on from one thing to another until the Bill 755 would be rendered entirely nugatory. The first exception which my noble and learned Friend proposes to make, is to except from the operation of his Bill all charities which derive their support, wholly or in part, from voluntary contributions. Does not my noble and learned Friend see that under such an exception—one so wide, any charity whatever, almost every charity in the country, may exclude themselves from the operation of the Bill? Why, my Lords, which are voluntary charities, and which are not? Who is to decide the point? How are you to distinguish and classify charities in this way? You can only find out which are voluntary charities by the examination of the books of charities. The result, therefore, will be to render the Bill wholly inoperative, because any trust may come under the exception, by accepting any amount, however small, of voluntary contribution towards its funds. Until my Lords, I know in detail what the whole of the Amendments of my noble and learned Friend are to be, and the effect of them, I wish no further to refer to them than as I understand them from my noble and learned Friend's speech; but my Lords, if you think this whole scheme is one not deserving of your Lordships' sanction, I am sure you will not be diverted from refusing that sanction, by promises such as those held out by my noble and learned Friend. I am sure you will not allow yourselves to be drawn into the snare so very skilfully laid for you by the promises of amending a bad measure—promises which never would have been made at all, if the Bill would have stood the test of a discussion—promises made, not because my noble and learned Friend has been converted, but because my noble and learned Friend despairs of ever being able to get the Bill through either House of Parliament without making very considerable concessions, and giving up a great part of his measure. My Lords, this is not a very complimentary position in which to place Her Majesty's Government; but my noble and learned Friend almost admits that he cannot hope to pass his Bill without giving up nine-tenths of it, either here or elsewhere. My noble and learned Friend has endeavoured to enlist your Lordships' sympathies in favour of his Bill, by a reference to what transpired on the same subject during the last Session. My Lords, I will not go into the details of what passed last Session; but my course of proceeding then has been so constantly 756 adverted to and misrepresented by my noble and learned Friend, that I cannot abstain from a few comments upon what then took place. One of the great misfortunes, my Lords, was, that from the course which was adopted in regard to this Bill last Session, it never came under discussion in this House. The Bill was brought in, and then met with the strenuous opposition of my noble and learned Friend near me (Lord Campbell); but it was not discussed upon the second reading. My noble and learned Friend (Lord Campbell) was anxious to test the principle of the Bill upon that occasion; but upon representations made to him he unwillingly agreed that it should go to a Select Committee. That Committee was nominated, of course, by the noble Lord on the Woolsack, who did me the honour to put me upon it. When we met, the first question that was raised was as to the appointment of the Commissioners—as to how they were to be nominated. I do not now recollect, my Lords, how the matter first stood in the Bill, but two propositions were laid before us: in what order they were made I do not remember, but I believe it was first proposed to name the Commissioners in the Bill; the other proposition was that the appointments should be left to the Secretary of State. The latter proposition was strenuously opposed by my noble Friend near me, and by myself: we endeavoured to get an alteration in the provision, and we succeeded. My noble Friend on the Woolsack found himself in a minority in the Committee, and it was determined to appoint, as Commissioners under the Bill, two of the existing Masters in Chancery. That removed one great objection which I had to the Bill—it did away with much of the patronage which it proposed to give to the Great Seal. These Masters in Chancery were already existing officers—the duties to be performed, are duties now belonging to the Court of Chancery — and these officers themselves stated upon an examination before your Lordships' Committee, that they had plenty of time to perform the duties which would accrue under the Bill. We were anxious, therefore, to confide those duties to those officers rather than to Commissioners to be appointed by the Crown; and the more especially were we anxious upon the point, because duties so important as these have always hitherto been performed in open court, whereas the Commissioners proposed by my noble and learned Friend were to perform their 757 duties in private. My Lords, my opinion is, that such important duties as will arise under this Bill, if your Lordships shall unfortunately pass it, ought to be performed in public by recognized officers, whose labours and conduct the public may have an opportunity of watching, and not by secret Commissioners sitting nobody knows either when or where, and doing nobody knows what! Well, my Lords, we carried that Amendment; but we soon found that we had done so at a very considerable cost, because from that moment we entirely lost the support of my noble and learned Friend behind me (Lord Brougham)—we met with no further support from my noble and learned Friend. My noble and learned Friend on the Woolsack, and my noble and learned Friend behind me (Lord Brougham), were of course all-powerful in a Committee named by either the one or the other of my noble and learned Friends, and consequently the Bill passed through the Committee, with a provision passed by them that two Masters in Chancery and one other person should be appointed Commissioners under its provisions. Well, my Lords, the Bill then came into the House, and the third reading was taken. Finding that I had no chance of carrying my propositions in the Committee, and knowing that the same fortune would attend me in the House, opposed, as I knew I should be, by both my noble and learned Friends now on the Woolsack, I contented myself by stating my views upon the matter in a few words on that stage of the Bill. I then stated, my Lords, that I highly approved of the objects of the Bill, but that I totally disapproved of the machinery by which those objects were to be attained. Those objects were the better administration of Charitable Trusts, and a more careful watching over the conduct of trustees: who could object to such objects as those? I did not, therefore, occupy your Lordships' time in making a long speech, which would have been wholly useless, supported as the Bill was by my two noble and learned Friends. I contented myself with entering my protest against the machinery by which the Bill was proposed to be carried into effect. I stated my objections in as few words as possible; and because I contented myself with that, my conduct has been construed into an approval of the Bill, and to-night my noble and learned Friend has characterized my speech upon the occasion as a sort of "murmuring disapproval" of its principle and details! My Lords, I can only say, 758 my "murmurs" were very distinctly heard upon the Woolsack. My objections were perfectly well known to my noble and learned Friend; and the Bill went down to the other House, it being not only well understood, but perfectly well known, that I entirely disapproved of the machinery by which it was proposed to be worked. My Lords, this took place in June last year—the Bill went down to the House of Commons in June—I should like to know why it was not proceeded with; why it was not passed into a law? It was, my Lords, a Government measure: it was a Bill for the improvement of the law—introduced and passed so far by the highest legal authority in the realm; yet it was shelved in the House of Commons! My Lords, we have often been told that we ought to originate Bills in this House, in order to facilitate legislation—in order to prevent any inconvenient pressure at the end of the Session. Let me ask was not June early enough to send down such a Bill from this House? No, my Lords, "the lateness of the period at which the Bill was sent down to the House of Commons" was not the reason it was not proceeded with! What then was it? My Lords, the reason was that the Colleagues of my noble and learned Friend would not carry it! They were ashamed of it. This is a matter to which I attach considerable consequence. That I disapprove of the Bill, may be a point of little importance—that a large number of your Lordships view it with suspicion, may be of equally little moment—but that the noble and learned Lord's own Colleagues should refuse to pass it, is a point to which all of us must attach the greatest weight. I hear a whisper behind me, that they could not pass it; whether they could not or would not makes little difference — they did not, and your Lordships will draw your own inferences. But, my Lords, here is the same Bill again! My noble and learned Friend had a clear intimation of the disapproval of it by his Colleagues, when they refused to proceed with it: surely after three months' consideration he has not brought in the same Bill, merely that it should share the same fate? That, my Lords, is not the way in which a Government ought to attempt to legislate, neither is it the way in which I think the Keeper of the Great Seal ought to attempt to amend the law! My noble and learned Friend has hinted to-night that it was doubtful how far the Bill would pass the House of Commons. He says he 759 has "unwillingly altered it." What, my Lords, is the power that has made him so unwillingly adopt these changes? They are changes of importance certainly, though wholly insufficient to, remove my objections to this Bill—objections which lie much deeper than the surface, and which I shall now with your Lordships' permission proceed fully and frankly to state. My Lords, my objections to the measure have a much deeper root than can be met by any of the alterations proposed by my noble and learned Friend. I have an objection to the measure quite independent of its applicability to the Charitable Trusts of this country. I cannot look back to what has taken place in the Court of Chancery since 1841, and not implore your Lordships to stop that course which has already been productive of such great evils—which, if continued, must be productive of so many more—and which this Bill, if passed, will tend not only to augment, but to perpetuate. Since 1841, my Lords, the increase of the patronage of the Great Seal has been such as would astonish your Lordships, if brought under your notice in such a manner as to give you an immediate view of the whole. Since that period a system has been going on of withdrawing from the Court of Chancery matters of jurisdiction which it has always held—powers which that Court has always exercised—and of establishing, at an expense to the country which your Lordships little apprehend, new tribunals possessing little better opportunity than the Court of Chancery to determine the matters which may come before them; a system tending, I must say, to the degradation of the Court of Chancery, and to a deterioration of the efficiency of that Court in a manner which I shall presently explain. But, my Lords, before I go into details, I beg to recall to your Lordships' recollection a measure which I have great satisfaction in saying I had the honour to originate in this House. In 1841, shortly before the Government then in power, and of which I had the honour to be a Member, went out of office, I had the honour of introducing into and passing through this House a Bill which I still view with much satisfaction, because I believe it has been attended with infinite success and great public advantage. I refer to the Bill for abolishing the equitable jurisdiction of the Court of Exchequer, and for transferring it to the Court of Chancery. It provided for the appointment of two additional Judges to the Court of 760 Chancery; and it transferred one of the Masters of the Equity Chamber of the Exchequer to the staff of the Masters in the Court of Chancery. That Bill proposed to remove all the business from the Equity side of the Exchequer into the Court of Chancery; and in order to meet the mass of business which had then accumulated in that Court, as well as that which might be expected to be added by the abolition of the other Court, we proposed the addition of two new Judges, and transferred one Master from the Court of Exchequer to the Court of Chancery; and we thought that by those means we should so add to the strength of that Court, that we should enable it not only to get through the mass of business then existing, but also to overtake the fresh business which might be expected to flow into it. Although we thought that increase of business might be considerable, still we thought it was not likely to be greater than we provided for by the additional strength we gave to the Court. Such was the nature of the Bill which I had then the honour of introducing to your Lordships' notice. My noble and learned Friend behind me (Lord Brougham) always and strenuously opposed that Bill, so far as the appointment of two additional Judges to the Court of Chancery went; he denied that either the arrears then in the Court of Chancery, or the additional business to be thrown upon that Court by the abolition of the Equity side of the Exchequer, justified the appointment of two new Judges. My noble and learned Friend was willing to accede to the appointment of one new Judge, but no more. My Lords, the whole subject was anxiously investigated; the measure was sanctioned by the approval of my noble and learned Friend on the Woolsack; and it passed this House in 1840; but it did not pass the House of Commons in that year. It was again introduced in 1841, and again it received the sanction of your Lordships; and, although it did not then pass the House of Commons, it was so well received there, that I am quite justified in saying that it met with the unanimous approbation of that House. Not the slightest opposition was breathed against the measure: its necessity was admitted—though whether it would ever have received the approbation of the political friends of my noble and learned Friend, had the Government of that day not been about to be removed from office, I am unable to say. However, my Lords, it met 761 with no opposition from that party, and might have become the law of the land before we went out of office but for a reason to which I would not have dared to advert had it not been openly avowed in the House of Commons. When the Bill was under discussion in that House, a very talented and a very learned Gentleman, one of my noble and learned Friend's warm political admirers, declared, although the Bill was a good Bill—although it was necessary that it should pass, in order to expedite the course of justice in the Court of Chancery—although it had been two years before Parliament, yet that if it passed at that moment, when there was a possibility of a change in the Government of the country—although the Bill was necessary, yet still, as its passing then would be to add to the patronage of the then existing Government, that the measure ought to be postponed. Now, my Lords, that appeared to be very sound reasoning to the minds of the political friends of my noble and learned Friend; and the Bill was accordingly thrown out upon that all-sufficient ground. There was no disguise about the matter. There was not even an attempt at concealment. It was frankly said, "The Bill is a good Bill, but do not let us pass it now—let us turn out the Government—we shall then come in—we shall pass the measure just as it stands — and we shall have the appointments of the now Judges!" Accordingly, my Lords, such reasoning succeeded, and for a time the Bill was thrown out; but the promise was kept: the change of Government took place, and the Bill was actually passed in the short Session of 1841 which succeeded the general election of that year, and became the law of the land. I make no complaint of these matters, my Lords; I only refer to them to show your Lordships that in that year a great accession of strength was given to the Court of Chancery—that two new Judges and one Master were added to the judicial strength of former years. We were of opinion that such an increase of strength would be found only adequate to the necessity which existed. I believe my noble and learned Friend behind me (Lord Brougham) thinks that it is more than adequate; but, for my own part, I believe that the strength of that court is found to be as nearly as possible the proper strength, and that both Judges and Masters are now adequate to the duties and to the business they are called upon to perform. As the court stands at present, I believe it to be, 762 as nearly as possible, of the strength it should be; it certainly is now fully adequate to the discharge of all the business which is brought to it. I believe no arrears have accumulated; in fact, my Lords, I believe that the present strength of the court is quite sufficient, if not for more, certainly for all the business which offers, and it is now regularly got through. You have, accordingly, a body of officers attached to that court who are certainly not overworked; and I contend that it is the duty of the Legislature to avail themselves of the machinery already to be found in the Court of Chancery whenever it is possible so to do. Now, my Lords, without meaning to express any opinion upon another measure, which was subsequently passed through the Legislature, I am anxious to call your Lordships' attention to it, in order to show that by its means the duties of the Masters in Chancery have been very materially reduced, and that, as the Masters have themselves said, they have abundance of time fully to carry out the duties which the Bill before us would impose upon them if your Lordships were to allow it to pass into a law. Some of your Lordships may be aware that a considerable portion of the time of the Masters in Chancery is occupied in the taxation of costs. What portion of their time is so occupied may be gathered from the fact, that, since 1841, seven individuals have been appointed, at a salary of 2,000l. a year each, to perform that work. Six of those persons were first appointed for the purpose of taxing costs generally; and at a subsequent period, another Master was appointed for the sole purpose of taxing costs in bankruptcy. All of those seven individuals were appointed to perform duties which heretofore had been done in the Master's office. My Lords, I am not complaining of those appointments. I desire to give no opinion whatever respecting them; I am only showing your Lordships what part of the former business belonging to the office of the Masters in Chancery has been removed from that office, and handed over to new tribunals, which have been created at a great expense to the country, and all tending enormously to increase the patronage of the Great Seal. Those were all new offices, and of course the appointments fell into the hands of my noble and learned Friend. In addition to those new offices, others were created: a Bill was introduced and passed, making very considerable alterations in the laws relating 763 to bankruptcy. In 1843, my noble and learned Friend proposed to appoint some very important officers, or Judges, in that court—most important officers, my noble and learned Friend termed them; and so should I if I were to judge from the salaries attached to their appointments. The cost to the public of those new offices is very great. There are twelve gentlemen appointed Commissioners in Bankruptcy in country districts, each having a new and separate court, with salaries of 1,800l. a year each. My Lords, I do not quarrel at all with those appointments, nor do I quarrel with the salaries given to the gentlemen who are appointed to perform duties that are certainly of very considerable moment. But, my Lords, at the same time, 500l. a year was added to the salaries of each of the London Commissioners; and why, or for what, I never could conceive. Up to that time they had performed their duties most efficiently — they were happy and contented; and I believe, my Lords, that no men were more astonished than were those very London Commissioners when my noble and learned Friend, in a fit of generosity, said to them—"You do your work well, and do not grumble; you do not complain, but I am convinced that you are underpaid; and you must oblige me by taking 500l. a year more each of you." All those new offices and all those new appointments were created and made at an expense to the country of 56,800l. per annum, and the patronage of the whole of them has been added to the Great Seal since 1841. The business of the Court of Chancery has been since that year uniformly reduced, while the strength of the court has been continually increasing; and now, with the Court of Chancery in this powerful and efficient state, your Lordships are called upon to take from that court another jurisdiction which it has always enjoyed, and establish another tribunal, at another considerable expense to the country! You are asked, my Lords, now to take from it a jurisdiction which it is peculiarly constituted to exercise; the duties of which, my noble and learned Friend admits, have always been well performed, not only from the character of those called to preside in it, but also because of its peculiar adaptation for the performance of such duties by the machinery which it has at command. My Lords, no one has ever brought any charge against the uprightness or the strict impartiality of the Court of Chancery—no one has ever questioned the 764 competency of its jurisdiction—no one has quarrelled with the mode in which that court transacts the business which is brought before it. No, my Lords, the court is respected—it is competent, upright, and impartial. But, say some, it is inaccessible on account of the expense incurred in going there! My noble and learned Friend has lent himself to that cry. My noble and learned Friend has to-night been making constant reference to the vast sums which certain proceedings have entailed upon charities; but no one knows better than my noble and learned Friend, that the sums he has mentioned were not costs incidental to the Court of Chancery. Those statements make an impression upon persons who are wholly unacquainted with the matter; but I know, and so does my noble and learned Friend, that the vast sums he paraded before us were not costs belonging peculiarly to the Court of Chancery. He knew very well when he was stating them, that the sums he mentioned were the whole costs of the litigation; not the expenses incident to the Court of Chancery, but incidental to all litigation, in whatever court. They included the cost of counsel, of attorney, witnesses, and all the other expenses incident to litigation whether it is in the Court of Chancery, or a Court of Common Law. Then, my Lords, I ask is it fair in my noble Friend to attribute all this expense to the operation of the Court of Chancery? Let me ask, what is the peculiar expense which the Court of Chancery compels a party to pay? Do those large sums which were mentioned to frighten your Lordships into giving this Bill your support—do they show anything against the Court of Chancery? They show that there has been great litigation—but can my noble and learned Friend show that such large sums were demanded in Court of Chancery fees? Let him tell your Lordships what was the amount of fees demanded by that court—what was the tax paid to that court by the parties, and then we shall have some knowledge of the real expenses of the court! All but the fees taken by the court are the usual expenses of litigation, and can form no part of a charge against the Court of Chancery. Those expenses must be defrayed by litigants in any case, whether they go into Chancery or into the Court of Exchequer, or Queen's Bench, or before another judicial tribunal in the shape of a commission, and to tell us what is the aggregate cost of the proceeding, is to give us no information as to what is 765 the cost of application to any court in particular. I say, then, my Lords, that it is very easy to see what this Bill is; it is alleged to be a Bill brought in for the purpose of saving expense to charities generally, and to smaller charities in particular; but the real proposition is to appoint one of the existing Masters in Chancery as a Commissioner under its provisions. Now, my Lords, I own I cannot see the charm of the separate jurisdiction thus proposed to be created. What can it signify whether a person sits in Southampton Buildings, and is called "a Master," or whether he sits anywhere else and is called "a Commissioner?" The individual is the same wherever he sits; he may be "Mr. Master" in one place, and "Mr. Commissioner" in another place; but his character will not necessarily undergo any change; you may compel him to sit in two different places, but the man will be the same, and his duties will not be altered: he would still be the same individual whether you call him "Mr. A." here, or "Mr. B." there! To me the proposal, therefore, seems an absurdity; and, my Lords, it is a mere fallacy that is attempted to be foisted upon you, when you are told that by merely giving people new names, you will save so much money to the charities of the country! Are these men to be mere accountants while sitting in one place—whilst when sitting in some other place, they are to be clothed with the character of judicial officers? It is a mere fallacy, my Lords, to suppose that such change of character in a public officer would effect any improvement in charity affairs; and I am sure my noble and learned Friend upon giving this matter further consideration, will not press this part of the Bill upon your consideration. But, my Lords, my argument goes still further. You admit the competence—the excellence of the jurisdiction of the Court of Chancery—you admit and acknowledge the fairness, the impartiality, the strictness of the justice administered there: and that you have no other objection to that court than its expense. Now, my Lords, in what does the expense of the Court of Chancery consist? Why in fees. Then, I say, my Lords, diminish that expense—reduce those fees—make such arrangements as will enable parties to come into the Court of Chancery at as small an expense as they could possibly go before a Commissioner, and then the parties will have justice administered in open court, by a tribunal to which no complaint can attach, and at an expense not 766 exceeding that which must be incurred in obtaining the assistance of a Commissioner sitting in private, and without any public control. And, my Lords, I am happy that it is within my power to give your Lordships, by an illustration, an adequate idea of my meaning—that I am able to refer you to an instance where the plan which I recommend has in some degree been accomplished with benefit to all concerned. In the consideration of a Bill which was introduced during the last Session by a noble Duke, now sitting upon the cross benches, for facilitating the drainage of lands, it was found highly desirable—nay, indeed, necessary—to have the sanction of some tribunal, before any expense should be incurred. In order fully to ascertain what was the minimum of expense at which the sanction of the Court of Chancery could be obtained, an inquiry was set on foot. Officers of that court were consulted, and we found that in cases where no opposition was offered (for your Lordships are aware that when there is opposition, it is impossible for any one to know where the expense may end); but in ordinary cases it was ascertained that an application can be made to the Court of Chancery for a cost of 15l. And what does the 15l. expense consist of? Why, my Lords, of fees—of fees paid to the Court. Then I say, why not remit those fees altogether in such cases as are contemplated by the Bill before us? Let the parties go at once into the Master's office and obtain his sanction and approval of whatever is right, without any fees whatever being charged—there can be no difficulty in that! But, my Lords, what is the answer to that proposition? The objection to it when I made it before, was taken by my noble and learned Friend, the Master of the Rolls, who is not now present, but who said, "These fees are a tax imposed upon the suitors before the court for the purpose of keeping up the establishment—what right have you to exonerate the parties from these fees at a probable expense to the public?" Does not my noble and learned Friend, by this Bill, propose to intermeddle with these fees? Does he not reduce this tax levied upon the suitor for the purpose of keeping up the establishment? Why, my Lords, is not taking away the business of the court an interference with the tax? My noble and learned Friend says you must not interfere with the fees because of the Fee Fund—that fund must be kept intact, to meet the charges to which it is liable; 767 but at the same time he says, "Take away the business of the court—erect a new tribunal for the purpose of transacting that which from time immemorial has been done by the Court of Chancery, and thereby reduce the fees which are paid into this fund." My Lords, may I not ask whether the Fee Fund will not be in exactly the same predicament in the one case as in the other? If it is robbery in the one case—undoubtedly it must be quite as much robbery in the other! Take away the business, and you take away the fees, and thus you sanction the principle of remitting the fees. But "the principle?" Why, my Lords, the principle has been recognised over and over again. Some years ago, my noble and learned Friend adopted a plan that he promised us was to afford, and which, I am bound to say, has proved a great benefit. My noble and learned Friend adopted the plan of substituting salaries for fees—the fees to be still paid by the suitors, but in place of going into the pockets of the officers, they went to the establishment of a fee fund. Very shortly that fund was considerable—it accumulated very fast, and when I acceded to the office of Lord Chancellor, I found that my predecessor had been in the habit of remitting fees. My Lords, it gave me great pleasure—very great satisfaction to find that by means of the accumulating fund, I was able to follow the very excellent plan of my predecessor in office. I also remitted fees, and while I held the Great Seal, as the fee fund increased, the taxation upon the suitors diminished—and if that plan had been allowed to go on, there would now have been a great diminution in the expenses which are charged upon all suits in the Court of Chancery. Unfortunately, however, that plan of diminishing the expense to suitors has been stopped for a considerable length of time. Great burdens have been thrown upon the fee fund, and consequently no foes can now be diminished. I am not going to say that the discontinuance of so good a practice is to be charged as a fault to my noble and learned Friend; but I must say that I deeply regret the change which has taken place. The measure of 1841 threw a burden upon that accumulating fee fund from which it has not recovered, and in my opinion the time has now arrived when Parliament must find it necessary and convenient to relieve the suitor in the Court of Chancery from the burden to which he is rendered liable. In my opinion, the burdens thrown upon the fee fund, are not 768 those which ought to be thrown as a tax upon the suitors in the court. It is a misfortune that very large compensations have to be paid—but, however they have arisen, I contend that they ought to form no charge upon this fee fund, and that it is necessary that the public should relieve the suitor in Chancery, not only from many of the fees now charged upon him, but also from all charges for compensation to officers. But, my Lords, I return to my subject. I repeat that I object to this Bill of my noble and learned Friend upon principle. It can only be defended upon the plea of necessity. I deny that plea—I deny its necessity! My Lords, I deny its expediency, the more particularly because it proceeds upon the principle of carrying out a system to which I very strongly object. My noble and learned Friend has enumerated certain figures in order to show your Lordships the amount of property which is invested for charitable purposes, and with which this Bill proposes to deal. My Lords, it is exceedingly difficult to—
§ LORD COTTENHAM
The number of charities may be ascertained so far as they have been examined, but the examination has been by no means complete. Thirty-eight volumes have been published, consisting of 27,200 folio pages, which your Lordships may find light reading at your leisure moments—they are so bulky that seriously no one ever thinks of reading them through. Generally people only look at them for the purpose of examining into some particular charity in which they happen to feel some interest. But, my Lords, those who have taken the trouble to wade through such a mass of evidence and information, state that the number of Charitable Trusts in this country is supposed to exceed 40,000—though by how many nobody seems to know. 40,000 then is the number of Charity Trusts, so far as they have been ascertained—probably there are many more. The incomes arising from the charities is computed at 1,500,000l.; the land subject to them is supposed to exceed 500,000 acres; the schools enjoy an income of 312,000l., and the number of children educated for that sum is stated at 264,000. Well, my Lords, take it so—we have 1,500,000l. of income in the hands of 50,000 persons for the purpose of charity. But your Lordships must remember that charity in the eye of the law 769 does not mean mere eleemosynary aid, either for maintenance or education—in the eye of the law everything which is dedicated to the public, is charity—whether money has been dedicated to the building of a bridge, or for its maintenance—whether for the building of a church—or a school—it may be for the benefit of the poor or not, if it be for the benefit of the public, it is charity in the eye of the law, and I presume ought also to be brought into our calculations while forming an estimate of the extent of interference proposed under this Bill. Now here, my Lords, another and a most important question arises, which is, as to the application of the great increase which often accrues in funds left for charitable uses. Out of this point, many questions of the strictest legal nicety have arisen. By good management, or some fortuitous circumstance, the value of a trust property has been greatly enhanced. The grave and important question then arises, ought the increase to go to augment the charity, or does it become the property of the trustees? Cases of this kind very frequently occur; one of them was argued at your Lordships' bar but a short time ago; indeed they are of frequent occurrence; they have formed a very large part of the proceedings of the Court of Chancery, from an early period down to the present time. It is very often, my Lords, a matter of much difficulty to come to a satisfactory conclusion as to the intention of the donor. It has been ruled by the Court in Equity, that the donees were entitled to the property created by the increased value of the Charitable Fund. In other cases, it has been held that the benefit of the charity and the donee was joint—that their interests ran pari passu, and both shared in the increase. These, my Lords, are matters of the utmost difficulty, in general caused by the almost impossibility of arriving at a satisfactory conclusion as to the intentions of the donor. Now, my Lords, suppose some of those companies to whom my noble and learned Friend made such happy allusions, suppose some of them to have received property upon trust, which in the course of time they have greatly increased; suppose that they were advised, and believed that such increase was their own property—it may be disgraceful in them to eat and drink all those fine things which my noble and learned Friend was so jocose over, but if the company believed they were dealing with their own property, although it might 770 be making a bad use of the money, still, are the parties to be treated as fraudulent trustees? My noble and learned Friend has kept back one part of the case from the knowledge of your Lordships, to which it now becomes my duty to call your attention, I mean the effect this Bill will have upon what we term "constructive trusts." My Lords, a large portion of charity funds arises not from property specially or altogether dedicated to charitable purposes, but from charges upon real estate, or from sources made payable out of personal property. Many of your Lordships whom I now address may be able, probably of your own knowledge, to bear me out in that. Property is inherited subject to a rent charge, payable out of the estate. When I come to explain the nature and the effect of the provisions contained in this Bill of my noble and learned Friend, your Lordships will find, that any of you, or any other proprietor who so pays a charge of any kind for any charitable purpose—I mean charitable in the eye of the law, as I have already explained to your Lordships—you will find, that you, and all persons so circumstanced, will become subject to the jurisdiction and the meddling of the irresponsible Commissioners who are to be appointed under this abominable measure; it matters not whether the charge be 40s. or 100l. My noble and learned Friend has not explained this part of the Bill to your Lordships; it is, therefore, my duty to inform you how this Bill will operate, if your Lordships should be so unwise as to allow it to pass. I was saying that it matters not whether the charge upon your estates be 40s. or 100l.; in that I was wrong, because, if the Bill pass, I should advise any of your Lordships who may be subject to a 40s. rent charge to raise it over the 100l.; by so doing, you would not only have the satisfaction of adding to the funds and usefulness of the charity, but you would also protect yourselves from the intermeddling of these Commissioners, who otherwise would have power to inspect all the deeds and accounts of the estate, which must be produced to them under the penalty of fine and imprisonment! Your Lordships, indeed, would be protected from the latter penalty by your privilege, but not so those who are in the management of your estates; and all this because your Lordships' estates were subjected to a payment of 40s. a year for ages before you were born! Now, my Lords, I shall very shortly state the clauses which bear upon this part of the case. The 771 Bill is proposed to be applied to three descriptions of charities—viz., to those of the largest character—to those under 100l. per annum, and to those charities which are placed under the charge of Municipal Corporations. My noble and learned Friend said, that large charities were to be exempted from the operation of the Bill. We shall presently see how far my noble and learned Friend carries out that intention. Your Lordships will bear in mind that by the Bill, jurisdiction is given to the Commissioners over all property which is in any way subject to a charitable trust; the inspectors to be appointed by the Commissioners will have a right to pry into the whole of the property which is subject to the charity — not the Trust Fund, or so much of the property as will cover the Trust Fund,—but all property which is subject to the charity—so that if 40s. a year is payable out of a property of 10,000l. a year, the whole 10,000l. will be liable to all the jurisdiction given to the inspectors through the Commissioners under this Bill. The inspector may come and require an investigation into all the accounts of the estate; he may summon the trustee, or the manager of the estate, before him, and inquire into the mode in which the accounts are kept; he may say to the proprietor of the estate, you do not keep your accounts in a proper manner—you must keep them in this way, or in that way, and the only reason he has to give is, "Oh! it will be more satisfactory to me;" and you must obey his orders, or if not, fine and imprisonment is the immediate consequence! He may go still further; he may say to the proprietor of the estate, or to his manager, "I wish you to keep a clerk, and you must do it; and what is more, you must also pay him yourself." Yes, my Lords, by the provisions of this Bill, the inspector has the power of saying to any one whose inherited or other property is subject to a rent charge of 40s. a year, "a clerk you must have, and you must pay him yourself." Having obtained the accounts of the estate, the inspector says, "Now I shall proceed to audit them:" and here allow me to express the surprise with which I heard my noble and learned Friend state that the inspector was not to interfere. What is the meaning of auditing accounts! I have always understood that auditing accounts meant inspecting them—altering them if not correct, and allowing or disallowing items; and this is the power which my noble and learned Friend 772 gives by this Bill. Is it not, my Lords, something very like "interference?" But, my Lords, there is another power given by this Bill to which I beg your Lordships' special attention. Wherever there is a rent charge upon the estate, the Commissioners or inspector will have the power of demanding the deeds of the estate; he may say, "I want to see the deeds belonging to the charity"—of course they are the deeds belonging to the estate, he is to have the power of ordering extracts or copies. Yes, the Commissioners, sitting in some private hole or corner in London, will be able to order copies of all old deeds, or extracts from them, and you dare not refuse them on pain of fine and imprisonment! And at whose expense is this to be done? Why, my Lords, if any of your Lordships should unfortunately have a rent charge upon your estates, you must do all this at your own expense. But even that is not all! Immediately after the passing of this Act, a copy of every new deed connected with the charity—that is, connected with the estate—must absolutely be sent to the Commissioners, at the expense of the trustee and under the same penalty of fine and imprisonment! And this, my Lords, is not all yet; you must not only pay the expense of the deeds, but whenever summoned to attend before the Commissioners, you must do so, of course, by your professional agent; your attorney must attend them in London, and you must defray the whole cost, because no provision has been made otherwise by my noble and learned Friend! If the Commissioners themselves have committed a mistake—if by any act of theirs expense is incurred, then and then only is the expense to come out of the trust fund! As an illustration of how this absurd power will work, I will state to your Lordships two cases, in which to my knowledge this part of the Bill will do great injustice. In the Leicester case the number of deeds was not less than 50,000; but I will pass on to the other case which I know better, and it will be a better illustration of the expense to be entailed upon trustees than any I can find. It is the case of one of the city companies which has let a large property for building purposes, and the land is now covered with houses. The old or original lease is about to expire—of course the sub-leases fall in with the original. There are 5,000 sub-leases which must all be renewed; and according to the provisions of this Bill, copies of the whole of these 5,000 deeds must 773 be sent to the Commissioners at the sole expense of the company! What use the Commissioners are to make of them it is impossible for me to divine; but if the Bill is passed into a law, sent they must be, whatever may be the expense. My Lords, there is one other part of the Bill to which I beg to call your Lordships' attention. I may call it the financial part of it, that portion of the measure which provides for raising the money to pay the expense of the jurisdiction itself. In order to do so, a tax is levied upon all charities above 100l. a year of 3d. per pound, and upon all under, a tax of 1½d. per pound, which tax is to be paid by the trustees to the Accountant-General in the Court of Chancery. Now your Lordships will remember that the charities are in number exceeding 40,000; of 6,000 of those, the income ranges between 1s. and 1l. per annum. Now, my Lords, can any of your Lordships inform me how the trustees in the former case—the trustee of 1s. a year is to pay his tax to the Accountant-General? Why, he cannot find a coin small enough to make his payment! It is true, my Lords, that, no doubt for the very great convenience of our largest merchants, and a very large class of the community, we have now a coinage of one half a farthing; but even that small coin will be found unfit for the purpose of the trustee of 1s. a year. And, my Lords, how are these payments, which cannot be made in money, to be made in modus operandi? Are the trustees to carry the amount of their tax to the Bank, and pay it in to the account of the Accountant-General of the Court of Chancery, and is he to take an account of all those decimals of farthings? Why, my Lords, in nearly the whole of the cases of these 6,000 trusts, the expense of paying and receiving the tax will be greater than the tax itself! It cannot be paid without incurring a larger expense than itself, nor without very much of inconvenience and annoyance. And what is to be done with the accounts of the 40,000 charities? Are 40,000 accounts to be opened in the Bank of England in the name of the Accountant-General of the Court of Chancery? Why, my Lords, many of these very small charities would be ruined by the expense. And now, my Lords, if these are the terrific powers which are to be vested in the Commissioners over all charities—that is to say, to all charities that are to be audited, and if audited, regulated, what will be the effect upon the smaller Cha- 774 ritable Trusts? Look at the powers given by the Bill to the Commissioners in respect of trustees—their powers are absolute to do as they please. In cases of Charities under 100l. a year, the Commissioners may prescribe the manner in which the trustees shall be appointed. They are too great personages to be bound by what would bind the Court of Chancery, and accordingly they are to have power to set the appointment of the donor aside. True, they must find malversation against the trustees; but what so easy when the only judges of the malversation are the Commissioners themselves? But their power extends still further than in a case of malversation. When a trustee dies, they are to have the power of appointment. Now, my Lords, is the value of a charity of 100l. a year so trifling? Its capital cannot be taken to be less than 3,000l.: so that, in a very reasonable time, you will have the trustees of all the charities in the kingdom of the value of 3,000l. appointed absolutely by these Government Commissioners. These Commissioners are to investigate all the accounts—to audit both payments and receipts:—if they have an object to serve, what so easy as for them to find fault with the conduct of trustees whom they dislike? My Lords, the Court of Chancery sometimes removes trustees, but that only in cases of fraud, and according to the well-known forms and practice of the Court; but these Commissioners are to be armed with far greater powers than ever the Court of Chancery has exercised, than the Lord Chancellor of England sitting in open Court ever has enjoyed. My Lords, it is greatly beyond the power of the Court of Chancery to remove trustees without cause assigned, but these Commissioners may confine the cause to their own breasts. In the Court of Chancery, trustees are removed by the solemn sentence of a judge, from whose sentence lies an appeal to this House—the Commissioners may dismiss as many trustees as they please upon their own discretion, without any appeal lying from their decision, without any control whatever. But, another monstrous power is given to the Commissioners, which is not, and never has been, possessed by the Court of Chancery. If the Commissioners choose to say that the intentions of the donor cannot be carried into effect, they are to have the monstrous power of applying the funds to any charitable purpose they may please. My Lords, I am decidedly opposed to such a power being granted. If the wishes of 775 the donor are obscure, or cannot be carried into execution, the rule of the Court of Chancery ought to be adopted, and his intention should be fulfilled cy-pres. But that seems much too limited a power for these Commissioners! My noble and learned Friend appears to be of opinion, that they must be relieved from those fetters which both law and wisdom have imposed upon the Court of Chancery. My Lords, there is another and an important part of the case which has not hitherto been adverted to. The Commissioners are not only empowered but enjoined to inquire what Charitable Trusts consist of. Now, that is one of the nicest points which ever comes under the notice of the Lord Chancellor. Cases are constantly arising wherein such a delegated power must prove highly injurious. Questions, for example, arise, whether certain funds belong to the charity at all. Suppose former trustees have granted leases, which leases are impeached for want of consideration, or on other grounds—the leases have been granted, but still they may belong to the charity—but who is to ascertain the fact? Whatever power is possessed by the Lord Chancellor is to be given to these Commissioners, and when a power is given them to ascertain the fact I have just stated, they will possess the power of inquiry whether the estate of any noble Lord now here present does or does not belong to a charity. My noble and learned Friend made a slight reference to a Bill brought in by Sir Samuel Romilly, but I beg leave to say, that Bill was limited in comparison to the Bill of my noble and learned Friend. Under that Bill, when an adverse claim was set up, the question of title was necessarily brought before the Court, and it must first be established that the fund was a charity—but by my noble and learned Friend's Bill, all is left to the decision of the Commissioners, who will also have the initiative in their own hands. In the case of tithes, the moment an adverse claim is set up, the power of the magistrate ceases. The magistrate has jurisdiction in the first instance, but the moment a claim of right is set up, his jurisdiction ceases. Does my noble and learned Friend mean to destroy that principle, and give the Commissioners power to set aside the practice of ages? But it is said that there is less objection to the Bill, because the judicial powers of the Commissioners will be limited to estates of 100l. a year. Now, my Lords, I do not see that that diminishes the objection. 776 Many congregational bodies have come to me, and have represented that they have the administration of properties which come under the denomination of Charitable Trusts of less than 100l. a year, and which consist entirely of chapels. Will your Lordships sanction the principle that the chapels of the various denominations of Dissenters shall, regardless of the Act of Toleration, be brought under the jurisdiction of a State Commission? My Lords, when I consider the position of another class of charities, I confess that my astonishment is increased. Your Lordships will remember the struggle which there was respecting the appointment of trustees of Municipal Charities, under the Corporation Reform Act. It was felt at that time that the appointment of those trustees would give great political influence. Great care was taken at that time to avoid the possibility of letting that influence be used by a Government, or otherwise, for its own purposes. My noble and learned Friend was most strenuous in his efforts to secure that object; yet what does he say now? By this Bill he says, "I, a Minister of the Crown, will myself appoint a Commission which shall have in its hands the appointment of all the trustees of Municipal Charities, and not only their appointment, but the power of removing them at pleasure." After having for years laboured to prevent the exercise of political influence in this matter, my noble and learned Friend has all at once found out that he, a Minister of the Crown, ought alone and uncontrolled to exercise all this patronage. My Lords, I will not be the man to impute motives to any one, but I must observe that from the tone taken by my noble and learned Friend, when I was sitting in the place which he now occupies, I should anticipate, were I the author of this Bill, that he would be one of the very first among your Lordships to suggest that my object was to get the nomination of Municipal Trustees into my own hands for a bad political purpose. My Lords, I have always said, and I now repeat, that there is nothing in which impartiality ought to be so much an object as in these appointments; and I believe the public will never think that that object is attained if this Bill unfortunately should pass into a law. But, my Lords, my noble and learned Friend will probably tell you that it does not signify whether these appointments are made by a Master in Chancery sitting as a Master, or by a Master in Chancery sitting 777 as a Charity Commissioner. My Lords, I will tell you where lies the difference. A Master has public duties to perform, for the due performance of which he is liable to the Court he serves, and he would never sacrifice his judicial character by making a bad appointment from an improper motive. But as a Commissioner he decides without any responsibilities. My noble and learned Friend feels the force of this argument so strongly that he tells your Lordships to-night that he is ready in these cases to give a power of appeal. But to whom is the appeal to lie? To the Lord Chancellor! So then, my Lords, you must go into the Court of Chancery after all; and this is the way my noble and learned Friend proposes to save expense to the Charities! My Lords, the simple truth is that nothing will be saved to Charities by this Bill, whilst in many cases expense will be incurred under it. In short, wherever the Bill is operative it is unjust:—in many cases it is not operative at all, but wherever it does operate it operates unjustly. My Lords, one reason why I say it is unjust is, because it interferes with the rights of private property. A donor surely has a right to say, "I give a certain sum for certain purposes, and I wish it to be managed by certain persons, and when one of the trustees dies, then another trustee shall be appointed, and I lay down rules for the management of the property?" But by this Bill my noble and learned Friend says, "If you give money in charity, I will manage it for you." True there is an exception made in the cases of Charities which are subject to inspection by a visitor; but, my Lords, why may not a man repose as much confidence in a trustee as in a visitor? I say, therefore, the Bill is unjust at it affects property; and as it affects the Charities themselves I say that it is injurious. How far its injury will extend is best evidenced by the number of petitions which have been laid upon your Lordships' table against the Bill. I know my noble and learned Friend (Lord Brougham) says that these petitions are from trustees, and that all trustees are fraudulent; but, my Lords, I am not inclined to assent to so sweeping a denunciation. My noble and learned Friend on the Woolsack taking different ground, observes that the petitions are mostly from the Civic Corporations whose funds are misapplied. But when my noble and learned Friend was talking thus of the City Corporations, why did he omit all mention of the cases in which, so 778 far from giving less in charity than the donor bequeathed, these Corporations give from their own funds infinitely more? My Lords, these cases are very numerous. Will they continue to exist if this Bill should pass? I submit, not. There will be no inducement to such benevolence, but, on the contrary, every inducement to subject as little of this property as possible to the Commissioners' inspection. And, my Lords, there is another and a very important class of Charities—not important in amount, but important in their benefits to the poor—respecting which I must say something. I refer to small parochial charities left for the assistance of the sick and maimed, and of poor helpless people generally. These are generally administered by the parochial authorities—the minister and parish officers. In many of these cases there is no authority for such a mode of distribution, and the administrators can show no legal interest in the fund; but will your Lordships subject these ministers and parish officers to be called upon to say why they administer these charities at all—or why they administer them in such a manner, or to such an individual? Will you subject the administrators to be deterred from pursuing their work of benevolence by the fear of being cited before the inspector—afunctionary whom I own I should be sorry to see entering into my domain! My Lords, these parochial authorities may be doing their best to secure their greatest service to the poorer parishioners, and yet without being guilty of any malversation of their trust, they may be cited before the Commissioners, put to considerable trouble and expense, and ultimately be subject to degradation. But, after all, these objections are nothing compared to the injury which this Bill will inflict on the whole body of Dissenters. The Dissenters are, in fact, subject to all its provisions without receiving any share of the protection it affords to others. They are very much struck with that provision of the Bill which provides, that in all trust estates belonging to the Church, where there is no legal visitor appointed, the bishop of the diocese shall act in such capacity, and that in the case of all trusts for the special benefit of members of the Church of England, persons elected trustees shall make a declaration that they also are members of the Church of England. My Lords, the Dissenters are very much struck with the fact that there are no corresponding provisions in the Bill applicable to their cases. The trustees of their 779 charities are to be appointed by the Commissioners without any such declaration—they may or may not be members of the community to which the charity belongs. The probability is that they will be members of the Church of England. Now this act applies to all chapels, schools, and trusts generally relating to dissenting bodies; and the Commissioners are to appoint the trustees of their schools and chapels. What! will your Lordships give a power to an irresponsible Commission to make members of the Church of England trustees of dissenting chapels? You let Dissenters perform their religion now according to their consciences; but what will they be able to do when this Bill passes? But more than this. These Commissioners are to have a power whenever "it may seem to them that the will of the testator is not carried out, to approve a scheme for the future regulation of the trusts. What! Commissioners — members probably of the church or of any other persuasion—approve a scheme for a Wesleyan or an Independent school! Just let your Lordships try it! If they do not know, or cannot make out, what the donor intended, the Commissioners may apply the trust to any other purposes they please! My Lords, how will this work in the case of a dissenting trust? Don't tell me that the Commissioners are not likely to exercise their power in such a case. If you give them the power at all, you must be prepared—ay and be responsible—for any mode of exercising it. My Lords, I believe I have now pretty nearly gone through my case. I fully admit—I have never disputed, that much may be done, and ought to be done, to meet the difficulties which present themselves to the due execution of Charitable Trusts; but I am sure that your Lordships can, in respect of these trusts, do nothing more injurious nor unjust than to adopt this scheme. I do not think there is any great difficulty in supplying the existing want. You want additional facility in the power of appointing trustees. It is a simple process, and no danger can be seen in still further simplifying it. It has been proposed that a board of ratepayers should have the appointment. That may be in some sort objectionable. Others have proposed that the appointment should vest in the clergyman and parish officers, and to that, as relates to parish charities, I see no objection. But if there should be obstacles to that working of the system, then 780 it might, I think, be well considered whether the nomination might not vest in the guardians of the poor. There you have an assembly of persons usually of different ranks, from different parts of the same locality, and who may be well supposed to have considerable knowledge of the most eligible trustees to be appointed. Others have proposed to refer the appointment to the magistrates in Quarter Sessions: perhaps that would be scarcely so good a plan as the last; but in some way or other I am sure this difficulty might be easily met, and for the most part in a manner that would be satisfactory to the public. Then, as to the expenses in the Courts of Equity, I would remove all the fees now paid in the cases of Charities which come before these courts, thus keeping the control in the Court of Chancery, preventing the taxation of Charities, and avoiding the creation of such a private, despotic, and irresponsible tribunal as is now sought to be created. I need say nothing more. I will not declare that this Bill has no good points, for there are some objects in it which I approve of—that, for instance, of vesting the legal estate in trustees; but, my Lords, the good forms such a very small part of it, while, as a whole, it is so bad in principle, so faulty in its construction, so repugnant to right, so distasteful to individual feeling, and so insufficient for the purposes it professes to have in view, that I trust your Lordships will put an end to the scheme by voting against the second reading. I therefore move that the Bill be read a second time this day six months.
My Lords, I must say that I feel considerable difficulty in rising to address you after the observations of my noble and learned Friend who has just sat down. Those observations have been so multifarious, sometimes so grave, at other times so light, sometimes so jocose, at other times in so serious a vein, that while I listened to them with interest—with as much interest, indeed, as it is possible for any of your Lordships to give to a speech delivered between seven and nine o'clock, and after the detail of such a dinner as that to which my noble and learned Friend on the Woolsack treated us—yet I must own that the very variety of those observations prevents my making any attempt to follow my noble Friend through them. But, my Lords, the matter which I feel to be the most embarrassing, is the confident sentence which the noble 781 Lord concluded by pronouncing upon this Bill; for I never before heard a judge, in any court of law or of equity, pronounce a sentence of condemnation so sweeping—so imperative—as that pronounced by my noble and learned Friend. He says the Bill can never possibly pass—that it never can become the law of the land—he tells us, with greater power of second sight than I have ever heard pretended to even by my noble and learned Friend here (Lord Campbell), who possesses a sort of hereditary power of second sight, that though this may pass your Lordships, it never will, it never can, pass the other House of Parliament—that it is in fact a Bill that is doomed. Now, why? Because, last year, says my noble and learned Friend, this Bill was sent down to the other House of Parliament in the month of June, and then the Prime Minister and his Colleagues would not venture to pass it; and, therefore, says he, my noble Friend on the Woolsack and his Colleagues differed about it. Why, never did I hear a greater jump to a conclusion! The Bill went down to the other House last year at the end of June. The Government then saw that it was too late to pass it; and not because they differed in opinion about it, but because it was so late in the year, they included it in the general list of Bills condemned—in that "massacre of the innocents," which takes place every Session, and frequently involves some of the best Bills of the Session. But how came it that the Bill was so late in getting to the other House? Why, that was partly the fault of my noble and learned Friend himself, who detained us so long in Committee upon it, though, I must say, without mentioning one-twentieth part of the objections to it which he has urged to-night. But, my Lord, so far was my noble and learned Friend on the Woolsack from believing that the Ministers differed in opinion about this Bill last year, that really I believe if any one is surprised to-night at hearing such a statement, it is my noble and learned Friend himself. He knew the reason why it was last year postponed; and I remember having been with him at the time, and hearing him express, and being a witness to his disappointment at finding that it had not been made an exception to the general massacre. And now, my Lords, in replying to my noble and learned Friend, I have so great a choice of topics, in consequence of the vast variety of mistakes he fell into, and the variety of errors into which, from 782 excess of zeal, he plunged headlong, that I really find it difficult to choose between them. I am bound, however, to make a selection; and I will, therefore, take those which appeared to have made most impression on my noble and learned Friend himself. I break bulk on the jocose part of the speech—that part which he told you with reference to these charities, that some were of 20s. and some of 1s. a year, and that the financial part of the scheme must fail, because as the twentieth part of the fund was to be paid to the Accountant-General every year, there was no coin in the realm by which the payment of the twentieth part of 1s. could be made. But there is a provision in the Bill which my noble and learned Friend has overlooked, and which completely meets this objection; for there is a proviso in the Clause which runs "except in such cases as the Commissioners shall order that it shall not be paid at all." And, therefore, there is nothing in that objection—no such difficulty as my noble and learned Friend conceives, for the Commissioners may order that no payment in these cases shall be made. But then says my noble and learned Friend, here is a Bill full of "Patronage, patronage, patronage:" there is nothing in it but "Patronage," and of that you have had enough already. First, in order to show that there had been an increase of patronage, my noble and learned Friend finds it necessary to digress very much, and to pass to the consideration of measures with which this has nothing to do. If any person had come down to listen to the debate at one period of my noble and learned Friend's speech, he would have thought the Lunacy Bill was the subject of discussion, or else that my noble and learned Friend should be one of the subjects of that Bill, for he then spoke only of the Lunacy Bill. He referred so much to that Bill that if a stranger had entered the House, his most probable remark would have been, "How long is this endless and tiresome debate upon Lunacy to last?" And the reply would have been, "You are mistaken: we are not discussing a Lunacy Bill, we are considering a Charitable Trusts Bill." Now, with regard to the Lunacy Bill, it is quite true that two Commissioners were appointed under it; but, my Lords, I am quite ready to share in the responsibility of those appointments, for I acquiesced in them; and I believe it is now generally admitted, that no measure has ever answered more entirely, or proved more 783 satisfactory in its working than the Commission appointed by the Lunacy Bill. I state this, my Lords, with the more satisfaction, because I acknowledge that at one time I had some doubts respecting those Commissioners; but having now inquired into the matter, I can safely say, that I believe the Bill has been entirely successful. But then, if the person to whom I alluded as listening to the debate had come in a little later, he would have found that my noble Friend had gone from the Lunacy Bill to the subject of the Taxing Masters of the Court of Chancery. For an entire quarter of an hour we heard nothing from my noble and learned Friend but about the increase of the salaries of the Masters in Chancery. "How long—" the stranger would have inquired, "How long is this tedious debate to last upon Taxing Masters in Chancery?" And the reply would have been as before—"You are mistaken; we are now discussing the expediency of introducing a Bill called a Charitable Trusts Bill!" But with respect to these Masters in Chancery, I must say there never was a Minister, a Chancellor, or a Member of the Executive Government who, being a Member of a Government which effected great reforms, stood higher or more impregnable than my noble and learned Friend on the Woolsack on the ground of patronage. Does my noble and learned Friend appoint these Taxing Masters? Not one of them. Following the example which I set him in the appointment of official assignees in 1831, he has abandoned the patronage embraced in the appointments of these seven officers, with 2,000l. a year each, and has vested it entirely in a Commission. But then the person whom I described as listening to my noble and learned Friend's speech would soon find that he had got to another subject, that of the Vice Chancellors. Now it is quite true that my noble and learned Friend on the Woolsack has appointed two Vice Chancellors, but then he has taken the best course for preventing abuse from those appointments, for he has provided in the Bill for the abolition of the offices, and the appointment of the Vice Chancellors to the Court of Review when the offices terminate. My noble and learned Friend spoke throughout on the subject of patronage, as if it were something to be coveted rather than to be dreaded, whereas all who have felt it must know that it is the most grievous burden that can be thrown upon a Minister, except, perhaps, receiving his quarter's salary. But at last my noble 784 and learned Friend in his speech did come to the Bill, at least he came to the subject of trustees. I often asked myself, while listening to the noble and learned Lord, whether he would once by any chance meander into the subject matter of debate, or whether it was his intention to consume the entire night by continuing the subject he was then discussing. But at last he came to the subject of trustees. He complained that this Bill would allow the Commissioners to appoint trustees in corporations, where most important political and party interests were concerned. "Was ever such a thing known," said he, "to allow a person nominated by the Lord Chancellor, a political judge, to fill up vacancies in the trustees of corporations?" Why, in whom is the appointment vested now? In the Masters in Chancery. Well, then, instead of being in the hands of persons appointed by the Lord Chancellor, the appointments are in the hands of the Lord Chancellor himself; for if the Master's appointment is excepted to, the matter goes before the Lord Chancellor, a political judge, to whose decision it is left. And why, let me ask, should it be supposed that a Master in Chancery is likely to be less politically biassed than a Commissioner? I believe the Commissioners proposed to be appointed by this Bill will stand equal between the parties, and that they will be respected as impartial judges. I only regret that any appeal whatever is to be given to the Great Seal, which must be held by a political Minister. But, my Lords, I must here say, that I could not but admire the tact and ability with which my noble and learned Friend omitted all mention of charity abuses. He picked his way most judiciously through that miry pool, striving, as it would seem, to avoid the dirty parts of the case, lest he should chance to splash himself by stepping into some charity abuse. No bird, no duck, could have stepped more lightly across a stagnant dirty pool than did my noble and learned Friend step by all the dirty parts of the charity abuses. Except in the case of some fair lady,Where the tight ancle meets the astonished gaze,as she picks her way to church or chapel, orWhen vernal breezes to the parks invite,endeavouring to save her silken hose as she steps from her carriage to the verdant sward, I have never, my Lords, seen anything equal to the skill, the lightness, the dexterity, and the success displayed by my 785 noble and learned Friend, in avoiding the difficulties which he here encountered. Carefully did he shun all mention of malversations and misappropriations such as are recorded in 5 Symons and 1 and 2 Milne and Keene, books where my noble and learned Friend will find registered his own judgments, judgments given by himself in the Court of Chancery, in cases of fraud by these trustees—of plain, downright, open misappropriation of funds devised for charitable purposes. My Lords, I can prove that this has gone on within the sacred territory of the London City Companies. I will give you a few instances. The Goldsmiths' Company, since 1491, have had a fund at their disposal out of which to grant loans to deserving young men. No loans have ever been granted. The rents have been applied to the uses of the company. Since 1491 divers other bequests have been made for similar purposes, but the company have got neglectful of all duties, with the exception of the duty they owe to themselves. They have neglected to appropriate the funds to the charitable purposes for which they were intended, though they have not neglected to take the funds themselves. An information was filed against them, but they got rid of it on a mere point of pleading. So it was with the Mercers' Company. There is in the books the decision of the Master of the Rolls, in the case of that company—that hospitable body to whom my noble and learned Friend alluded, and who acts on the principle that hospitality, like charity, ought to begin at home. An information was filed against them with reference to a charity which, since the great fire of London, has been allowed to fall into desuetude; and the Master of the Rolls compelled them to pay the costs. I hold in my hand the petition of the Mercers' Company, imploring your Lordships to throw out this Bill. The fact is that the company have had enough of the Master of the Rolls. They do not want any other master than their own master. Their transgressions are of no late day, for in the petition they presented to their Lordships' House, they set forth that since the great fire of London, in 1666, they "had regularly, zealously, habitually, diligently, and faithfully discharged their trust;" id est, they had regularly, zealously, habitually, diligently, and faithfully gone down to Greenwich, there to partake of breakfast, dinner, and supper. For the due performance of those duties, they 786 prayed their Lordships' honourable House to reject the Bill. Before I dismiss this portion of my subject, I have one word to say with reference to the Corporation of Leicester. Several benefactions have from time to time been made, upon trust, to the Corporation of Leicester, which trusts have been faithfully executed for many years, and it was the habit of the trustees to hand the balance from time to time to their successors. After a period, however, they got tired of executing the trust in this humdrum fashion, and the balance was paid to the Town Clerk. In the year 1835, the balance amounted to 6,000l., and that sum was lent by the Town Clerk to the Mayor, who paid interest for it, which interest the Town Clerk pocketed. Under such a state of things, it is by no means surprising that the Corporation of Leicester should implore your Lordships not to pass the present Bill. They do not want Commissioners—they are quite satisfied with the Masters in Chancery. They say, very naturally, "Don't inquire into our affairs—don't overhaul our accounts—don't enter into tiresome, tedious, and disgusting investigations about our guzzling and victualling—don't inquire into the little transactions that have passed between the Town Clerk and the Mayor, for it would be unjust and ungracious towards all parties, and do not, we implore of you, pass this Bill, because the adoption of it would give a vast amount of patronage to the great 'zeal.'" Of course they take care to say nothing of their own patronage, which they enjoy without any Act of Parliament—viz., the 6,000l., which affords a kind of patronage of a much worse sort than any that the Bill can create. The Master of the Rolls in their case declared that he hardly ever heard of a grosser breach of trust; and with such facts before him, it is not to be wondered at that my noble and learned Friend should be so careful in avoiding the subject of abuses, and so anxious to pick his way delicately and cautiously through this miry case. My Lords, from the time of Sir S. Romilly downwards, it has been admitted that the Court of Chancery is, by reason of expenses, inaccessible to the smaller cases of charity. My noble and learned Friend understated his case, when he said that the utmost expense of an application to the Court of Chancery was 700l. There is a case in the books in which the expense of fighting a case of charity abuse for four or five years amounted to 2,000l. It is true 787 that that was the case of a charity which could afford to pay the costs, but the same expense would have been incurred if the abuse of the trust had been of a charity of not more than 100l. Of the great charities, of which I have cited some examples, the number of abuses reported on by the Commissioners is somewhere about 350; and if such is the state of these great charities upon which the light of day shines, and which stand exposed to the eyes of man, is not the conclusion irresistible, that in the smaller charities—which cannot bear the expense of a Chancery investigation, and which are therefore necessarily exempted from jurisdiction and control—a tenfold greater amount of abuses must prevail? My noble and learned Friend seemed to think that the great corporate charities I have referred to are to be included in the schedule proposed by my noble and learned Friend. No such thing. But he says you will except voluntary charities or charities partly voluntary, and if you do that you render the Bill useless. Now my Charity Commission had no power to inquire into the cases of such societies, and yet they found that there still remained something like 40,000 charities to be dealt with, possessing an income of a million and a quarter a year. But then my noble and learned Friend objects to take a Master in Chancery and make him a Commissioner. He says it would be better to leave the Masters as they are, and let them have a more extensive authority. But he forgets that we want a summary jurisdiction, and he forgets the matter of costs. He says, "Only let the parties go before a Master." "Only!" This is a very smooth and oily way of putting it, but in fact this going before a Master is a very expensive process. There is, first of all, a petition to the Chancellor, or, as is more generally the case, an information filed. Then a reference is directed to the Master, who hears the case in his own office, and treats it in every respect as an ordinary Chancery suit. Then comes warrant after warrant, and the parties not agreeing, exceptions are taken, and ultimately there is an argument on the exceptions before the Chancellor. The exceptions are, perhaps, allowed, and then the matter is remitted back to the Master, and everything proceeds as before. This is a Chancery suit and nothing more, and that is just what we want to avoid. In fact, beyond all dispute a summary jurisdiction in these cases is absolutely necessary, and we have now 788 arrived at such a point that some remedy must be applied. The remedy must be summary, and it must be cheap; that is the long and short of the matter. All that my noble and learned Friend said in pulling this Bill to pieces, does not amount to the proposal of any remedy. He talked of the hardship of the production of documents, and of compelling parties to show their title. That was the whole substance of the cry against the inquiry of 1819. This Bill does not call for the production of any documents which could not have been called for by the Commissioners at any time during the last thirty years. My noble and learned Friend also objects to the clause to indemnify a person for the expense he may be put to in acting under the orders of the Commission. But is it not only fair that if a person incurs costs, or is subjected to an action for having acted in consequence of the orders of the Commissioners, that he should be saved from any loss or harm? But my noble and learned Friend talked of some remedy. He mentioned gingerly the subject of charity abuses, but he still said that they required some remedy. He says boldly that the remedy is easy. "You have only," says he, "to bring in an Act of Parliament abolishing the fees in the Master's office." Why, is my noble and learned Friend serious? Is he awake? The fees in the Master's office are, as he knows, the least part of the whole. There are hardly any fees in the Master's office. "The fees" are the fees of counsel, the fees of solicitors, the expense of bringing up witnesses from almost every corner of the country in reference to a charity of perhaps not more than 50s. a year; these are the fees, and these my noble and learned Friend has not regarded. One word, my Lords, before I conclude, respecting the Dissenters. It is said that this Bill may place the property of Dissenters under the control of Churchmen. I know a great deal of Dissenters, and although they are often very intolerant amongst themselves, I must do them the justice to say that I have seldom found them very hostile to the Church. But, my Lords, what is the state of things now? Why, the control over these charities is vested in the Court of Chancery. Why should that arrangement be so peculiarly satisfactory to Dissenters? The Lord Chancellor must necessarily be a Protestant, but the Master of the Rolls may be a Roman Catholic, and his interference in the management of dissenting 789 charities would surely in such an event be not less distasteful to them than the interference of a Commissioner of a different persuasion. My Lords, I am in perfect charity with all men—Whigs included—but I cannot for the life of me but think that the extraordinary opposition to this Bill has some peculiar cause. Speaking as a Whig—[a laugh]—oh! you need not laugh, for I was just going to show that you and not I must 88be considered the lapsarians. Speaking as a Whig, I beg to ask do you remember the controversy of 1818? Did you ever hear of the debates in Parliament on this very subject in the years of grace 1818 and 1819? Did you ever hear of a party measure, as completely a Whig measure as any that was ever brought in by that party—the Charity Bill of 1819, upon which you were banded as one man, with myself for your leader. Now, every one of the topics which have been heard to-night from my noble and learned Friends are to be found in the speeches of the Tory party to whom we were opposed on that occasion. I therefore am not a lapsarian, but a surviving disciple of that now extremely small school which daily becomes "small by degrees and beautifully less." On that occasion I had the satisfaction of defeating Lord Eldon, the legitimate predecessor of my noble and learned Friend, by a majority of two, and I carried my Bill. What then, I beg to inquire, is the cause of the Whigs voting against us to-night? Is it that others than Whigs are to oppose the Government upon the coming division? [The Duke of RICHMOND: Hear, hear!] Yes! I was prepared for that cheer. There are questions on which you cannot vote with the Whigs, but this is one on which they think that they can woo you over. The young people must be brought together: there must be a pleasant party made for them; and there can be no better opportunity of doing so than in a matter where there have already been so many pleasant parties down the river, to Greenwich and elsewhere. This is the occasion you take of wooing your richly endowed bride: so the Bill is to be flung overboard that you may go hand in hand. But, my Lords, I call on you to beware! I do not say this is a trap, a pitfall, a stratagem; it is only a little attempt to hurt the Government, to mortify the Chancellor, (though, God knows! he of all men has least cause to care about such petty mortifications,) to damage the Prime Minister without turning him out ["No no!" from some of the back benches.] Oh! no! 790 no! no! Of course not: I well understand all that—to damage him without turning him out, in order eventually to make way for others who will only carry out his views. But don't suppose that he will go out on account of this! He knows his duty too well. Let me entreat you, therefore, seriously to consider before you unite on such grounds to defeat this useful measure. It is a Bill of grave importance. The character of the Government and of parties in this House is deeply implicated in your giving a favourable consideration to it to-night. You do not deny the abuse—you do not say the measure is not required—you do not say that it is not a measure wished for and called out for by the country; and, therefore, affirming its principle, the course which you ought to take is fairly, candidly, conscientiously, and honestly to go into Committee, in order that you may there examine its details, examine the exceptions and alterations which my noble and learned Friend will propose to make in it—for you don't know the Bill yet—to see if you can mend it, and only if you cannot to refuse it your ultimate sanction. Gravely, seriously, and anxiously, I therefore pray your Lordships to support the second reading.
§ The EARL of ELDON
I really think it essential, my Lords, that I should make some observations as to this Bill, and as to the circumstances under which I am inclined to vote for the Amendment of the noble and learned Lord opposite—that the Bill be read a second time this day six months. My Lords, the noble and learned Lord who spoke last talked of "motives," in which he says the opposition to this Bill originates. It originates in no such motives as he describes. I hope that noble Lords on the cross benches will oppose it; and I am sure that if they do so they will oppose it, as I do, upon its merits. But if the noble Lord meant to attribute to us that we should vote against it from such motives as he described—
§ The EARL of ELDON
I am in the hands of the House; and the House well understood what the noble and learned Lord said. I am sorry that the noble and learned Lord should have thought it necessary to use such language, instead of addressing himself, as he should have done, to the merits of the Bill. My Lords, the debate has not turned upon those merits; let me re- 791 call your Lordships' attention to them. When this debate was postponed before Easter, it was the object of those who sought its postponement, to secure the introduction of certain modifications into the Bill during the recess. I remember that I said at that time that if no modification were introduced, I should certainly vote against it. Certain modifications have been made with a view to tempt your Lordships to support the measure; but I, for one, must say that I am not satisfied, and that I shall not give my vote in favour of proceeding with it. My Lords, I do not deny that there are abuses under the present system of administering Charitable Trusts, both great and small. I do not deny that the question as to the mode in which those abuses should be remedied is one deserving your most serious consideration. I take up this Bill, believing it is most desirable to view the matter in that light; but when I inspect the Bill, I must also declare that I believe it is in no degree calculated to remedy the abuse that is complained of. I believe the charity would be greatly diminished by its operation; and nothing that has been said in favour of the measure has met the objection. The City Companies say that they are sure of it. Some of those companies have contributed largely to their charity estates from the funds at their own disposal. It has been said to-night that certain of those companies have been guilty of abusing the trusts reposed in them; but there are many at any rate against whom no such charge has been brought, and yet all are to be taxed though a few only require control. Look at the Merchant Tailors' Company for which I had the honour to present a petition to your Lordships against this Bill. No charge is made against that company, and yet by this Bill you will tax them 100l. in respect of each of their charitable estates to defray the cost of managing other charities that may be subject to abuse. My Lords, the other night I presented to you a petition from the Trinity Board at Hull. That board administers a fund of 26,000l. a year. The trustees are chosen by a popular mode of election. Their accounts are published—they are even published in the newspapers. No complaint has been made against the management; so far from it, resolutions of thanks to the trustees have been unanimously agreed to, and their excellent management has been attested by the signatures of 2,000 of the seamen of the port, who have felt the beneficial effects 792 of their good management. Now, my Lords, I complain that such a charity should be subjected to the inquisition of a secret tribunal, instead of having the advantages of that publicity which would be given to it by a Court of Chancery. I complain also that the mode of proceeding with respect to the deeds of charities may lead to a disturbance of titles, whilst an exposure of the persons who are the objects of charity will, in many instances, lead to a defeat of the intentions of the founder. My Lords, no one objects to the cheap management of charities; if the object of the Amendment had been to defeat any measure that would secure the cheap management of charities, I certainly should not support it. I should be glad also to find that every publicity was given to the accounts of charity estates; but I do say again, that I object to the taxation of those estates, as proposed under this Bill, for the payment of a body of Commissioners who are to look after their administration. Surely, my Lords, a country so rich as this can well afford to pay for the management of its charities out of its public revenue. And here, my Lords, allow me to ask, whilst speaking of the Commissioners, for what reason is special mention made in this Bill of the eligibility of a "Chief Justice of Bengal?" Is a Chief Justice of Bengal more peculiarly suited for the administration of Charity Trusts than any other judge, Indian or English? My Lords, I am sure that the constitution of such a tribunal, even though a Chief Justice of Bengal was a Commissioner, would have the worst effects on charities. It would deter people from leaving money for charitable purposes by leading them to believe that their purposes would never be carried out as they desired, and that their money would be taxed for the support of a Government tribunal. Neither will gentlemen consent to act as trustees if they know the extent of the responsibility which they will incur, and the sort of tribunal to which, if this Bill passes, they will all be subject. It has been said, my Lord, that the late Lord Eldon declared, "That he had viewed with great horror the administration of several of the charities, which in some cases amounted to an actual breach of trust." I have no doubt that my late noble relative has been correctly quoted; but because he viewed abuse with horror, it does not follow that he would have given his assent to such a Bill as the present. It would have been his 793 object, my Lords, to have checked that abuse, by the exercise of the power which he held as Lord Chancellor of England, not by taxing those who did their duty well, or by creating such an irresponsible tribunal as that which your Lordships are now called upon to give birth to.
I am desirous, my Lords, to address a few words to your Lordships, because I have been taunted with inconsistency by my noble and learned Friend who is at this moment sitting on the edge of the Woolsack. The noble and learned Lord, declaring himself a Whig, has made an appeal from the old Whigs to himself, as the only consistent member of that once great and flourishing party. He complains that all his old associates have deserted him—that he is left a solitary monument of political consistency and wisdom. My Lords, I shall certainly abstain from entering into the subject of my noble and learned Friend's consistency. I remember that a Session or two ago he said he could almost promise he would give me an opportunity of taking that issue; and I expected that he would accordingly have moved a resolution, "That it is the opinion of this House that Henry, Lord Brougham and Vaux, has always been a consistent politician." But, my Lords, two years have elapsed, and no such resolution has been moved, no such notice has been given; and I now find that it is enough for me to defend my own consistency respecting this Bill, for my noble and learned Friend would have your Lordships suppose that we had first approved of it, and then vented our anathemas against it; that we had attacked the Bill until things assumed a new aspect, and that then "luffing up to the breeze" we condemned the measure which we had formerly applauded. Now, my Lords, I have always been most anxious to expose and remedy the abuses of charities; but I never admitted that the measure of my noble and learned Friend on the Woolsack would have that effect, and I have therefore always been most strenuously opposed to it. I voted against it when we were in a slender minority; I oppose it now when we have every hope of success. My noble and learned Friend on the edge of the Woolsack, tells you, that in the last Session of Parliament the Bill was passed nemine contradicente. It passed this House without a division, it is true; but why did it not pass the other House of Parliament? My noble and learned Friend 794 who affects to be so deeply in the secrets of the Government, so deeply, that he has told us to-night that they do not intend to resign; even he was unable to give any satisfactory account of this very extraordinary and anomalous occurrence. He tells us that "both himself and the Lord Chancellor" were struck by the fact that the Bill should have been included in the general massacre. I must acknowledge that I feel with my noble and learned Friend much surprised that the Government should thus have dealt with their own offspring. The Prime Minister really might have communicated with his noble and learned Colleague—he really might have consulted my noble and learned Friend (Lord Brougham) before he struck the final blow. But it seems that he had not so high an opinion of the Bill as my noble and learned Friend. Possibly, when the Bill came down, he had altered his views upon this as he has done upon so many other measures. I pity, therefore, my noble and learned Friend. I am sure that I only do him justice when I say that his desire is to do good. If the extensive patronage given by this Bill had been forced upon him, I am sure he would not have had it. He would relinquish it in accordance with that constitutional doctrine laid down by my noble and learned Friend who sits so near him, that no Government which has not an actual majority in the House of Commons can appoint to a judicial office. My noble and learned Friend declares that it would be an "atrocity" to do so. My noble and learned Friend on the Woolsack would, I am sure, never act so "atrociously." If, as my noble and learned Friend has laid it down, it would have been "an atrocity" for the Whigs to have made appointments when they had a majority minus one, it would indeed be "an atrocity" in the present Government to make appointments until their 112 supporters are swelled somewhat nearer to the number of 400. I fear, my Lords, that the charities will remain a long time with their abuses uncorrected if we wait until the consummation is arrived at. My Lords, my great objection to this Bill is that which creates such unmingled consternation and alarm—the power which it gives of centralizing, in a manner wholly unprecedented and unexampled, the management of charitable trusts. People are absolutely to be deprived, under its provisions, of the management of their own affairs. There is to be a meddling and an intermeddling 795 which, to say the least, is extremely pernicious. Talk of the Poor Law—why, under the Poor Law the parties who are interested in its administration elect their own officers; but under this Bill all the officers are to be nominated by a Commissioner. These three irresponsible Commissioners are to constitute new trustees, and to dismiss old ones at their will and pleasure; in fact, they are to make that which is now done throughout England by those in the locality a matter of governmental interference. My Lords, this has raised great alarm. More petitions than for a very long time I have known to be presented upon any one subject have been laid upon your Lordships' Table against this Bill. But, says my noble and learned Friend, this is the result of "a combination." Nothing, my Lords, can be more true. It is "a combination." It is a combination of Churchmen and Dissenters, of Roman Catholics and Unitarians, of persons of all religious persuasions, purely for the purpose of defeating this one measure. "Oh! but," says my noble and learned Friend, "all these petitions are from fraudulent trustees." Now, this very day a petition has been presented to your Lordships against this Bill from the Society for the promotion of Christian Knowledge, of which society, I believe, every right rev. Prelate on the bench opposite is a member. Does my noble and learned Friend, then, include all the bishops in his description? Does he mean to say that they are among the fraudulent trustees who have joined the "combination?" My Lords, I do not wonder that the right rev. Prelates are opposed to this Bill. A clause was introduced into it by the Bishop of London, directing that all trustees of a purely Church of England charity should make a declaration that they were Churchmen. Nothing could be more proper; but the evil the right rev. Prelate sought to guard against still exists in respect of the Commissioners—the great governing body—themselves. You may have for Commissioners Roman Catholics or Dissenters appointing trustees over Church of England charities, or over other charities to which they are in principle opposed. My noble and learned Friend who opened this debate, confined himself almost entirely to the case of the smaller charities. Now I admit that in respect of some of these charities things ought not to remain as they are. It is a reproach to the law of this country that some of the abuses 796 that exist should be permitted to continue. But, my Lords, the remedy that I would find for this grievance is not the appointment of such a Commission as this. I believe the best remedy would be found in the reform of the regular tribunals of the country: I believe that the best power over charities exists in the Lord Chancellor himself. My noble and learned Friend beside me (Lord Cottenham) is allowed upon all hands to have administered equity to the perfect satisfaction of everybody. He knew where the Court of Chancery was perfect and where it was deficient; and he declared that the Court of Chancery was the best tribunal to which application could be made for the correction of abuses in Charitable Trusts. No doubt, my Lords, it is an admirable tribunal: there is a careful investigation, a patient hearing, and justice is administered. The only objection to it is the cost of litigation. I admit that evil; but I say that the obvious remedy is to diminish that cost. You say the Court of Chancery cannot be approached in the cases of small estates. Then I reply that it is a reproach to the judicature of this country that that should be the case. Remember, the evil is no greater in this respect, as it affects charities, than as it affects individuals. If a person has a legacy of 50l., to recover it by a bill in equity would lead to a certain loss of a larger sum. The proper remedy, then, is to allow justice to be more cheaply administered. You ought so to reform the abuses of the Court of Chancery that justice may be done. It was said by Jeremy Bentham, and I know it is said by all who follow that school, that it is the duty of the State to furnish gratuitous courts of justice of every description. That may or may not be good argument; but what do you do in this country? Why, instead of affording the courts of justice gratuitously, you make the suitors of the court pay enormously, sometimes to the public revenue, and sometimes for private charges. There are various offices in this country—some of them in the gift of the Crown, some of them sold by the Judges—that are paid by fees, and those fees are laid upon the suitor. In the Court of Chancery, although the "Six Clerks" are abolished, there is an immense sum that will be levied upon suitors for one or two generations, for the purpose of indemnifying those whose offices have been abolished. My Lords, the clear remedy is, to allow justice to be cheaply administered to those who are entitled to it. But, even if 797 you were to have some new tribunal to be confined entirely to exercising a legal jurisdiction over these small charities, is the tribunal chalked out by this Bill the one that you would select? My Lords, this Bill prescribes a tribunal for a totally different purpose; for this Commission is to take under its control all the charities in England; it is to superintend the whole, great and small, lay and ecclesiastical, and to require triennial returns with regard to every charity throughout the length and breadth of the land. If you are to have so much work to be done, this machinery might be necessary; but if you are to confine the remedy to charities under 100l. a year, the machinery which this Bill provides is wholly unnecessary. There are three Commissioners, two inspectors, and I don't know how many clerks and other functionaries; when one single Commissioner, appointed by the Lord Chancellor, with power to supervise the charities of small amount, would be amply sufficient to do all that by this tribunal you seek to do. Then, my Lords, the principle of this Bill is to interfere with every charity in England, to require that accounts shall be rendered by every set of trustees who have the management of a fund that is applicable to a public purpose; for that, as my noble and learned Friend has truly informed your Lordships, is the proper definition of a charity. There are about 50,000 bodies of trustees; they are all to be subjected to the jurisdiction of this new Commission. They are to send in their accounts; they may all be examined upon oath; and the manner in which this is to be done will be most hurtful to their feelings, and may be most prejudicial to the interests of the charity. I believe, with the noble Earl who last addressed the House, that the Bill would be destructive to many charities; inasmuch as those who now devote their days and their nights to the care of those institutions, without fee or reward, or the hope of patronage, or anything except an anxious wish to discharge their duty and to be of service to their fellow-creatures, would all shrink from the performance of such a duty if it were to be attended with such consequences. Then, my Lords, the noble Earl who spoke last has pointed out to your Lordships the extreme injustice of taxing a charity that is perfectly well administered, that wants no supervision, where there is no abuse, where everything is pure and everything intelligible. That part of the Bill is most injurious, and 798 I do not wonder at the vast number of petitions which have on that account been presented against it. With regard to the municipal corporations, I think the objection is, if possible, still stronger. My Lords, this is a subject that has had its importance for years past. I remember an open conference on the subject between the two Houses of Parliament, when I heard a speech of great ability from the noble Earl now the First Lord of the Admiralty upon that subject. There is no doubt that political influence, in many boroughs in England, depends mainly on the appointment of charity trustees. Well, then, in whom is their appointment to be vested? In the nominees of the Lord Chancellor! This is what I did at first most strenuously object to, and it is what I now object to with equal strenuousness. My noble and learned Friend allows that, as the Bill was originally framed, the trustees that are already appointed might be swamped, because the number of new trustees that might be appointed is entirely indefinite. He now, as a slight concession, consents that the number originally appointed shall never be exceeded. That in a very small degree removes the objections which I urged. My Lords, for these reasons, I do trust that there will be a very strong feeling in this House against the second reading of the Bill. Why should you read the Bill a second time? My noble and learned Friend put it off on a former occasion, because he wished to consider whether some alterations might not be made in it. Would your Lordships pass the Bill as it is now presented to you? "But," said my noble and learned Friend, "I mean to make an Amendment;" and the only Amendment he has hinted at is that he will except from the operation of the Bill certain bodies who have petitioned. If he were to except all who have petitioned, I believe he would render the Bill a dead letter; for I believe all have petitioned who are to come under the operations of the Bill. If that be the case, he should introduce into the Bill these words, "And be it hereby enacted, that no individual, or charity, or trustee, or corporation who have petitioned against this Bill shall be subjected to its operation." Would it be consistent with the dignity of Parliament that a Bill should be passed which the author of it allows to be a dead letter? My Lords, I strongly advise you to reject this Bill. Your rejection of it will not, in the slightest degree, interfere with my 799 noble Friend's exertions to correct abuses, by his great ability to reform abuses in the Court of Chancery, and to render justice cheap and expeditious; and if there are some charities that, from their small amount, cannot possibly be brought under the jurisdiction of that Court, let him bring in a Bill for appointing one Commissioner, who may inspect those charities, who may correct abuses, and who may do what the cause of justice requires. But do not let us read a second time a Bill which the author of it cannot defend, of which he cannot tell what will be its operation, and the defects in which he cannot show us any tangible way to remedy.
The BISHOP OF SALISBURY
Having listened to all the arguments which the noble and learned Lord has just adduced, in addition to those which the learning and ingenuity of another noble and learned Lord have brought forward, I am not able to remember any which, giving to this subject my most careful and impartial attention, have appeared to me of sufficient weight to prevent my doing that which it is my purpose to do, namely, to give my vote in favour of the second reading of this most important measure. My Lords, I should not, in any case have entered into the details of this Bill; and especially I shall not, at this late hour of the night, attempt to occupy your Lordships' attention more than a very few minutes, in stating the reasons why, in spite of all the arguments that I have heard to the contrary, it still seems to me an imperative duty imposed upon me to give my vote in favour of the second reading of this Bill. My Lords, I do so because there is a great and acknowledged abuse, for which it is attempted by this Bill to provide an adequate remedy. Except in some such mode as that which is proposed by the Bill, I confess I do not see any hope held out of this enormous abuse being in any degree whatever remedied. My Lords, the abuse which it is attempted by this Bill to remedy presses more particularly on my mind, because it is an abuse of sacred and charitable trusts, trusts in which the poor of this country are essentially interested. My Lords, wherever the abuses may be, if there be a non-appropriation of the funds, whoever may be the gainers, the poor are they who suffer; and if a remedy be sought through the expensive processes of the Court of Chancery, the parties contesting as trustees may be great landed proprietors, and by the carrying on of expensive suits 800 in that Court, still the poor are they who suffer. Great, multifarious, and enormous as are the abuses which the noble and learned Lord on the Woolsack introduced to the notice of your Lordships, unless some such measure as this be adopted, I see no hope of remedy. The noble and learned Lord who has just addressed your Lordships, has, indeed, pointed out what he considers a remedy for this state of things, what he describes as a plain, simple, and easy remedy. He says the whole evil is, in what? Why, nothing else than the expensive nature of suits in Chancery. Therefore, he says, the plain remedy is to reform the Court of Chancery. My Lords, I entirely agree with the noble and learned Lord, that that is the plain remedy, and that that remedy might be safely and satisfactorily applied. But I take the liberty of asking that noble and learned Lord, if that remedy is so plain and easy, why, during the long years that these abuses have existed, it has not been applied? To whom, have we a right to look for a remedy of that kind if not at the hands of the noble and learned Lord? He has now been in this House for many years; he has been actively engaged; his attention has been given to all matters of this kind, and especially to matters connected with the administration of the law; and I have yet to learn that even the talents, the learning, and the ingenuity of the noble and learned Lord, will enable him to bring into this House a Bill for remedying the abuse of the Courts of Chancery, which will do away with expense, and delay, and vexation, and will make any measure of the kind now before your Lordships altogether useless. My Lords, it is notorious that there is no hope or chance of any measure of this kind. I myself, my Lords, was a Member of a Committee of your Lordships' House some six years ago, which sat upon another Bill immediately connected with this—the Grammar School Bill; and there is one ground upon which alone this Bill commends itself to my attention, namely, that a very large proportion of these Charitable Trusts are connected with the education of the poor. My Lords, there are throughout this country, in all our borough towns, in all our villages, innumerable charities devoted to the education of the poor, which are now in many cases wholly inoperative; and the only hope of their being resuscitated, and of giving effect to that most important part of our social policy, namely, the imparting of education 801 to the lower orders of the people, consists in the application of such machinery as that which is devised in this Bill. That Bill to which I have referred, and of the Committee upon which I was a Member, came up from the House of Commons containing clauses having for their object the providing of a more speedy and efficient remedy for abuses of that kind. I do not exactly remember by what machinery it effected this; but the only principle in this Bill which I consider to justify my voting for the second reading is, that it provides a cheap and summary jurisdiction in the case of educational charities. Now, my Lords, certain clauses were struck out of the Bill to which I have referred, in consequence of a hope being held out by a noble and learned Lord, whom I do not now see in his place, that there would immediately be such a reform of the processes of the Court of Chancery, such cheap, expeditious, and easy processes introduced, that we might very safely dispense with any clauses of that kind; and that all that was required would be carried into effect more securely, and with equal facility, by the reform of the Court of Chancery. My Lords, six years have passed away, and I have not heard that any such reform of the Court of Chancery has taken place. And as regards these charities, what is the case? Why, the grammar school bill is altogether inoperative. Therefore, my Lords, seeing no hope in any other quarter, I intend, in spite of all the grave and weighty objections which have been urged against this Bill, to vote for the second reading. I do not say this, my Lords, as approving of all its provisions; very far from it. I came down to the House in very great doubt whether I should vote even for the second reading of the Bill; and had it not been for the speech of the noble and learned Lord in introducing it, I should certainly have voted against the second reading. In doing so, I do not think I shall be guilty of that simplicity which a noble and learned Lord said those would be guilty of who were led away with the vain and uncertain hope of amendments. I trust that that is not a vain and fallacious hope; for, if the noble and learned Lords will exercise in Committee that ingenuity which they have shown in debate—if they manifest that acquaintance with details, and that skill in raising objections, which they have displayed on the second reading, to which such objections do not appear strictly to belong, I think it would be unjust to the 802 noble and learned Lords themselves, as well as to your Lordships' House, to conclude that the real objections to the Bill cannot be obviated. I shall not detain your Lordships longer; but I do trust that we shall not have the only hope which I have seen of the reform of this great and acknowledged abuse frustrated or cut off, without, at least, an attempt being made in a Committee of your Lordships' House to bring the Bill into that state in which it may be the means of carrying into effect that which I am sure your Lordships desire equally with myself, namely, the reform of the great abuses prevailing in the administration of charities.
§ LORD ABINGER
I own, my Lords, that some of the objections urged against this Bill by trustees, constitute the very reasons why I think such a Bill is acceptable. If anybody will compare the state of a trustee before the passing of this Bill with the state in which he will be placed after it has become law, I venture to say that he will find that a person acting properly will be more secure under this Bill than he is at present under the jurisdiction of the Court of Chancery. For what may happen at present? Any person who chooses to do so, may file a Bill with the consent of the Attorney General, and that consent is usually granted on being applied for. I happen to know that a certain gentleman, an attorney, threatened almost all the charities in England with the filing of a Bill. He wrote to them all, desiring that they would give an account of the administration of their charities; and stated that unless the account were rendered, and a considerable sum sent for the costs of the application, proceedings would be taken. I remember in that case there was an interference to prevent the filing of the Bills; but all charity trustees are placed in similar danger. Why it should be supposed that individuals of high character and great discretion should, under this Bill, commence a vexatious interference with charities, I cannot tell. My Lords, I cannot join in the opposition which is made to this Bill—I should not be acting consistently with the dictates of my conscience, if I did not vote for the second reading.
My Lords, I am anxious to avail myself of this opportunity of addressing your Lordships on this Bill. It is not often that I have ventured to intrude any observations of mine on your Lordships' attention. I have listened 803 with some attention to the arguments adduced by the opponents of this measure, and I cannot perceive that the grounds upon which its necessity has been based, have been successfully impugned. Those grounds are, first, that the interference of some competent tribunal is continually necessary to regulate public charities, and control their administration; and secondly, that to appeal to the only tribunal that has any jurisdiction in this matter, in the case of the smaller charities, is a practical absurdity. Your Lordships cannot surely imagine that the causes of interference are few in number; it is not so; they are numerous; but however numerous they may be, I can assure you, that the number of applications that is now addressed to the Courts of Equity for these purposes, is no measure at all of the number of applications that would be addressed to a competent economical tribunal of the kind sought to be established by this Bill. I hope I shall not be accused of wearying your Lordships, if I detail some of those causes of interference. And first, there may be a want of trustees; that is, of persons legally authorized to manage the charity, and adminster its funds. Sometimes the donor appoints none; sometimes he appoints distributors of the funds only, and neglects to vest the property in them; sometimes he appoints trustees, properly so called, but omits to make any provision for their renewal; but more frequently owing to negligence, or the want of adequate funds, they are not renewed within the time limited for that purpose by the terms of the instrument of foundation. In these cases, the charity is usually administered by the minister and churchwardens of the parish; but as they have no legal right to interfere, the tenants and officers of the charities frequently set their authority at defiance, refuse to pay rents, or deliver up property in their possession, and charity property is often seized upon by the descendants of tenants and officers, and even by alms-people and their families. Again, owners of estates out of which annual sums issue, payable to charities, technically called rent-charges, withhold them on the ground that these de facto administrators can neither make a legal demand, nor give a legal discharge for the money when paid. Now, we will suppose that the administrators for the time being, driven to extremities by some of these manifold inconveniences, resolve to apply to the Court of Chancery regardless of the expense. I will not weary your 804 Lordships by describing in detail the process employed by the Court for effecting this object; it often involves an inquiry as to who was the survivor of some ten or twenty gentlemen named as trustees, perhaps 200 years ago. Now, this is not a very easy matter to ascertain, as your Lordships may well believe; but it is still more difficult to trace the heir at law of such survivor; it is not very easy sometimes to discover the heir at law of a gentleman who died yesterday; think, therefore, what must be the difficulty of tracing the heir at law of one who died 200 years ago. Yet the Court takes upon itself the attempt to ascertain these facts; and they are accordingly investigated at a great expense in the Master's office. But suppose the most favourable case, that trustees exist, properly so called; yet, however desirous they may be to manage the charity, and administer its funds, in the manner most conducive to the interests of its objects, they often find they have not the power so to do, without applying to the Courts of Equity, or to Parliament; they cannot, for example, grant building or mining leases. A charity, in which I am myself a trustee, lately had to expend a sum of about 600l. in obtaining an Act of Parliament to sanction the granting of mining leases. Neither can they sell without such application. It may seem strange to your Lordships, that it should ever be necessary to sell charity property; but it happens in a variety of ways—sometimes the land is surrounded by that of some wealthy proprietor, who would give double or treble its value to be allowed to buy; and in that case of course the trustees are anxious to sell, and it is often expedient that they should do so. Again, there are a great many cottages that were left by their donors for the residence of paupers rent free, but they either gave no funds, or not sufficient funds for their repair. Before the passing of the Poor Law Amendment Act, these cottages were inhabited by paupers placed there by the parish officers, who sometimes paid rent for the cottages which were distributed in charity; but, at all events, kept them in repair. Now, they have no funds which they can apply to these purposes, the paupers have been transferred to the workhouse, and the cottages have become dilapidated and untenanted; and that is the most favourable case, for sometimes they are inhabited by beggars and thieves, and are a perfect pest and nuisance to the localities in which they 805 are situate, the authorities of which have been long looking forward to the enactment of a measure of this kind, which would give authority for their sale, and the application of the proceeds to some useful charitable object. Again, if the fund has increased beyond the requirements of the trust, they cannot dispose of the surplus income without applying to the Court for what is called a scheme, that is, a plan for its disposal. Again, trustees and officers may misconduct themselves, or they may become incapable through age, or other infirmity, of performing the duties of their office properly. There is another point, which has not been overlooked, and very properly so, in this Bill. The law allows to the founders of charities the utmost liberty in framing the trusts of their endowments, in settling the terms and conditions on which their bounty shall be bestowed; it is not extraordinary, therefore, that some of these donors, abusing this privilege, as it were, of private legislation, sometimes enjoin that which is injurious to the objects of their trusts, sometimes that which is absurd and impracticable, sometimes that which is little suited to a modern state of society and manners, and sometimes that which is contrary to public policy. It may be thought that liberty should cease at that point where injury to society begins, according to a well established social maxim, that no one shall be allowed to do that which is injurious to the community of which he is a member; but this Bill does not go so far as this, it merely authorizes the Commissioners to apply the funds where they cannot be appropriated according to the original intention of the founder, leaving it to the Legislature to deal with injurious charities as it shall think fit. My noble and learned Friend says, why not adhere to the doctrine of cy-pres? That alteration may be made in Committee if your Lordships think fit; but I would observe, that in carrying out this doctrine of cy-pres, the Court is often obliged to exercise a very wide discretion—there is often not much analogy between the application directed, and the original intention of the donor—for instance, there is not much analogy between redeeming Barbary captives from slavery, and educating emancipated apprentices in the Colonies; though of course I do not doubt the abstract utility of this application. I now proceed to the second head; that it is a practical absurdity to appeal to the Court 806 of Chancery in the case of the smaller charities. My Lords, it is the grossest of all absurdities, and my noble and learned Friend seems to admit this, when he says, that the grievance is not peculiar to charities, but extends to all small properties under litigation in the Court of Chancery. My Lords, undoubtedly it does, and a great abuse and grievance it is; in these cases, as well as in the case of the smaller charities, there is an absolute denial of justice; but is that any argument against this Bill? Are we to refuse to redress a great and notorious public grievance, because a kindred grievance remains unredressed? The truth is, my Lords, the machinery and processes of the Court of Chancery are far too ponderous, far too cumbrous, to be applied to these small matters; one might as well employ a steamengine to pick up a pin, or the noble and learned Lord on the Woolsack might as well insist upon having a railroad laid down in the new Houses of Parliament to convey himself and the Seals backwards and forwards from the Woolsack to the Bar, and from the Bar to the Woolsack. I now proceed to illustrate shortly the evils which result to the smaller charities from Chancery interference; and the first case I shall mention is Popham's Charity, the income of which is 21l.; in that case, there was a suit for appointing trustees, yet at the time of the Commissioners' inquiry the object of the suit had not been attained, and yet more than 120l. had been spent. In Saunders' Charity, there was a suit to recover the arrears of a rent-charge of 10l. The arrears were 380l., but the cost of their recovery amounted to 360l.; so that only 20l. remained. Again, in the Bushbury Grammar School, the income of which is 98l., there was a suit for appointing trustees, for an account, and for removing the master. The suit lasted for twenty-three years; for twelve years there was no school, and the charity houses were in ruins, and the costs were 1,171l. Again, in the Hayward Charities: in 1831, the master of the school received notice to quit the school premises; he disregarded that notice, and he disregarded three successive notices to quit. The trustees then, very unadvisedly, certainly—but some allowance must be made for trustees, on whom part of the responsibility for the good conduct of a school devolves—the trustees very unadvisedly proceeded to eject him by force. For this he brought an action; a second action was brought by his wife, 807 a third by his son, and a fourth by his daughter, in all four actions, for assaults committed on the expulsion. In 1832, the master was restored on petition; and on the hearing of the petition, no less than ninety-nine affidavits were read. Besides these proceedings, there were some in the Exchequer, and a costly Commission to examine witnesses in the country. The costs of one side only exceeded 1,300l., and three of the trustees were reduced to ruin and their property sold. But perhaps it will be said, what matters it if twenty years' income of a charity be expended in costs, if, after all, justice be done? Better costly justice than cheap injustice. But, my Lords, are we reduced to this alternative? What right have the opponents of this Bill to assume that these Commissioners will perpetrate injustice? Who are they to be? Vice Chancellors and Masters in Chancery—the very persons through whose agency the court now performs the great majority of its functions. I suppose it will not be contended that the mere act of making a Vice Chancellor or Master in Chancery a Commissioner, will at once deprive him of all his legal learning, experience, and integrity. On what ground, then, can he be incompetent to these duties, except on this, that there is something inherent in the jurisdiction itself which renders it impossible to discharge the duties in a satisfactory manner? Let us, then, contrast for a moment the two jurisdictions; and here we must distinguish between the judicial and ministerial acts of the Court of Chancery. It is under the latter that trustees are appointed, leases sanctioned, and most of those acts performed to which I have already adverted. Now as to a decision of the Court of Chancery in its judicial capacity: after hearing counsel on both sides, I will only say, that I hope that it will always command that respect to which it is justly entitled; but the Commissioners have in strictness no judicial authority. Theirs is a domestic tribunal; they have no authority as against strangers and third persons, their power extends only to trustees and officers; yet even here a candid opponent would admit that the Commissioners have one advantage, that they obtain their facts from oral testimony, and not by affidavits and answers to written interrogatories, which certainly cannot be described as the best contrivance for eliciting truth, which the wit of man ever devised. Then as to the ministerial acts of the Court, by whom are they performed? 808 By the Master in Chancery. Now these Masters are able, experienced and learned in the law, and well qualified to perform the duties to which they are appointed; but under the system of the Court they are mere passive agents, they are guided in their opinion as to the particular scheme before them, chiefly by the evidence of its promoter, and by the affidavit of some deponent, selected by him, of whose character and qualifications they have no means of judging. Now I would ask your Lordships, whether this be a better system than that proposed to be established by this Bill? under which these Commissioners will have power to send inspectors to the spot to make local inquiries, to employ engineers, and other competent persons, and will not be justified in giving their sanction to any measure, until its whole bearings have been thoroughly sifted and probed. My Lords, I am aware that I have already more than sufficiently occupied your Lordships' time, and I am unwilling to trespass further at this late hour of the night, but before I conclude I should be glad to say a few words as to the opposition to this Bill. And now as to these trustees—I cannot understand their objections to the publication of their receipts and expenditure; one would think that, firm in conscious integrity, they would rather court than shun inquiry; at the same time, I will not be tempted to show from the Reports of the late Commission, how many good and sufficient reasons, some of these parties have for wishing to be exempted from the operation of this Bill. When I saw so many of these City Companies in the ranks of opposition, I was at first greatly surprised, knowing as I do, what vast sums of money have been expended by these Companies in objects connected with their charities, in obtaining Acts of Parliament to sanction building leases, and so forth, and in protracted litigation in reference to the endowments of which they are the trustees—the greatest part of which would have been saved, had this Bill been the law of the land; but my surprise ceased on being informed that these monies did not come out of the coffers of the Companies, but out of the funds of the charities, in other words, out of the pockets of their poor recipients. I say it with great deference to the distinguished authorities near me, but I cannot but think, that the Court of Chancery is far too indulgent in allowing costs out of charity estates: one consequence of this is, that 809 parties are induced to institute suits with a view rather to the obtaining of their own costs, than the real benefit of the charity in respect of which they are instituted; and I know a case in which two charities, which had been misapplied for some years by one of these Companies (in ignorance it is but charitable to conclude, but still misapplied) were doomed to pay 2,700l. out of their funds to defray the costs of the proceedings which became necessary to correct this abuse. For these reasons, and many others, too long to detail, I hope that your Lordships will give a second reading to this Bill; if you think the power of the Commissioners too great, curtail them in Committee; if you disapprove of the mode in which the expenses of the measure are to be provided for (and I certainly do not approve of it) alter it, but do not reject a measure, to the enactment of which many of the clergy and Charitable Trustees in the country are anxiously looking forward; at least, if I may judge by the number of inquiries, which used to be made at the office of the late Commissioner, as to when a measure of this kind would be brought forward; and I may appeal to all sincere and zealous law reformers, not to oppose a Bill, which may be described as the most praiseworthy and spirited attempt, which has ever yet been made to mitigate the evils of Chancery delays and costs. And now, in conclusion, I have only to thank your Lordships for the kind condescension with which you have listened to the observations which I have deemed it my duty to adduce.
§ The Question was then put that the Bill be read a second time:—Contents 40; Non-contents 42: Majority 2.
§ House adjourned.