§ Order of the Day for the Second Reading, read.
§ LORD CRANWORTH, in rising to move the second reading of the Endowed Schools Bill, explained that its object was twofold—first, to enable the children of Dissenters to enjoy the benefits of endowed schools, commonly known as King Edward's Schools; and, next, to enable Dissenters to become trustees of such schools. Before, however, he proceeded to state the details of the present measure, it would be convenient that he should relate the history of the Bill. In the course of the last Session of Parliament an hon. Member of the other House (Mr. Dillwyn) obtained leave to bring in a Bill having the same object in view that he, Lord Cranworth, proposed to effect by this Bill. That Bill was opposed on the second reading; but it was carried by a majority, and referred to a Select Committee. He (Lord Cranworth) had had no communication with that hon. Member upon the subject; but he must do him the justice of saying that the speech he made in moving the second reading, appeared to have been characterized by as much of intelligence, fairness, and zeal, as any speech he had ever read. The hon. Member brought forward his Bill, if not as the organ, yet in the interest of the Dissenters; and he (Lord Cranworth) could say, in all sincerity and truth, that, being himself an attached member of the Church of England, he thought it was for the interest of that Church, quite as much as of the Dissenters, that such a measure as this should pass. He had introduced the Bill without communication with the hon. Member; and it would be for their Lordships to judge how far it was deserving of their support. The Bill of the hon. Member for Swansea came out of the Select Committee in a totally different shape from that in which it entered the Committee; in fact, as originally introduced, it would have effected no object whatever. But the Committee gave very great attention to the subject, and, almost entirely rejecting the original Bill, they framed a new one, consisting of several clauses, upon the subject. That Bill went back to the House of Commons at the close of the Session; but the hon. Member who introduced the measure being dissatisfied with the Bill in its amended shape, it was allowed to drop. He then, at the end of the last Session, asked to introduce a Bill into 690 their Lordships' House, and did so accordingly; but his noble Friend the President of the Council having represented that it would be hopeless to attempt to pass it at that period of the Session, he consented to withdraw it; intimating at the same time that he should re-introduce it early in the present Session. In conformity with that notice, therefore, he had this year laid a Bill upon the table within two or three days of the meeting of Parliament, and that Bill was the same, with one exception, as the measure which had been agreed to by the Select Committee of the House of Commons. That exception, he could not disguise from himself, would be considered by many of their Lordships as an important and undesirable alteration; but if they would give a second reading to the Bill, he should be prepared to vindicate the alteration, and to show that it was better in the shape in which he proposed it, than that in which it came out of the Committee of the House of Commons. Their Lordships could then deal with the subject as they thought proper. In these cases it had become the practice for the Attorney General to appear before the Court of Chancery, and introduce what were called "conscience clauses" into the scheme, exempting the children of Dissenters from the necessity of receiving religious instruction according to the doctrines of the Church of England. It had been contended, however, from time to time in that Court that it had no power of extending the benefits of these schools to any but Church of England children; that the business of the Court was to administer the law as it found it; and that where the trust-deed implied that the school was to be conducted upon Church of England principles the law was to be followed. In order to show the necessity of some legislation upon the subject, he would mention that there were nearly 700 endowed grammar schools in this country—some of them of the highest excellence—nearly all of which were founded prior to or during, or soon after, the reign of King Edward VI., and were, therefore, generally known as King Edward VI.' s Schools. Most of them had been endowed with the spoils of the suppressed monasteries. According to the law at present, any complaint of maladministration in the case of any endowed school must be made to the Court of Chancery, which directed a scheme for the future management of the charity; deciding what instruction was to be given, and how the school was to be managed and governed. In 1842 a ques- 691 tion came before the present Lord Justice Knight Bruce, then a Vice-Chancellor, as to the settlement of a scheme for the application of very large funds, which had not before been devoted to purposes of education, but which had been given to Bury St. Edmunds in the reign of Edward IV., and the foundation in the deed was described to be "for the honour of Almighty God and the Blessed Virgin." In settling the scheme, the Vice-Chancellor was of opinion that education was alegitimate object for the application of the funds, and he also thought that education must include religious education, and the religion must be that which existed at the time of the founder; except that inasmuch as since then we had ceased all connection with the See of Rome, the religious education to be imparted now must be that of the Church of England. His Honour accordingly settled a scheme, according to which religious instruction was to be given in the school according to the doctrines and formularies of the Church of England, but with a special provision securing the benefits of the school to the children of Dissenters, who were not to be obliged to take part in the religious instruction. In 1852 the case of the "Basingstoke School" came before Lord St. Leonards, not as head of the Court of Chancery, but as Visitor on the part of the Crown, the school being a Royal foundation. Not only was the Basingstoke a Church of England school, but it was necessary that the master should be an ordained minister. Under these circumstances the scheme which his noble and learned Friend drew up, set forth that religious instruction should be given by the master at such time as he chose to appoint; but that the Liturgy and Catechism of the Church of England should not be taught to boys, whose parents, on conscientious grounds, objected thereto. Nothing could be more reasonable than these arrangements. So matters remained until 1855, when a scheme for the Foundation Schools at Chelmsford came before the Court of Chancery. The case was heard by Vice-Chancellor Wood, and the Attorney General, in conformity with the usual practice, proposed the introduction of "The conscience clauses." Thus sanctioned by the authority of Vice-Chancellor Knight Bruce and Lord St. Leonards, the Vice-Chancellor, however, doubted his authority to make any such exception in favour of Dissenting children; but said, that Chelmsford being a Royal foundation, the matter rested with the Crown in this case, and not with the Court 692 of Chancery. All he did, therefore, was to appoint a master who belonged to the Church of England; and he stated that if any children were improperly excluded complaint should be made to the Lord Chancellor in his capacity of Visitor. This decision gave rise to great dissatisfaction, and ever since that time the Attorney General had not attempted to introduce these conscience clauses. The result was, that the children of Dissenters were practically excluded from the benefits of Endowed Schools. The law regarding the trustees of these schools was in an equally unsatisfactory state. Some years since the case of the Stafford school, where two Dissenters had been appointed trustees, came before the present Master of the Rolls, who decided, most reluctantly, that no Dissenter could be upon the list of trustees, on the ground that as the object of the charity was the teaching of scholars according to the doctrines and formularies of the Church of England, with no right on the part of Dissenters to participate in any part of the teaching without also receiving the religious instruction, therefore the introduction of Dissenters among the trustees was not reasonable. In 1858 the question again came before Sir John Romilly in the case of the Ilminster school. There, besides the trust for the education of children, the surplus funds were to be applied in mending the roads and for other parochial purposes; and Sir John Romilly believing that this presented a point of difference which would enable him to depart from the principle of the Stafford case, decided that the appointment of the Dissenting trustees was a valid appointment. The decision was objected to, and the case was heard upon appeal by the Lords Justices. The Lords Justices overruled the decision of the Master of the Rolls, and declared that the Ilminster trustees must all be Members of the Church of England, on the ground that there was no solid distinction between that case and the Stafford case—the trust as to the surplus for repair of the roads being in truth nearly worthless. But although they so decided on grounds quite intelligible to those who consider the subject, yet in pronouncing judgment Lord Justice Knight Bruce observed that the sons of Dissenters had very properly enjoyed, and he hoped would long continue to enjoy, the advantages of the school, without being compelled to receive education in the tenets of the Church or to attend a Church of England place of worship, and Lord Justice Turner concurred in 693 this hope. It was improper to speak of the private feelings and opinions of Judges, yet he must remark, that if there was any person more than another devoted to the Church as against Dissent, it was his very learned Friend Lord Justice Knight Bruce. And, considering that the "conscience clauses" in favour of Dissenters originated with him in the Bury St. Edmund's case, and that the principle of those clauses was re-affirmed by him in the judgment given in the Ilminster case, where it was also sanctioned by Lord Justice Turner, himself a strong Churchman, he thought this afforded a strong argument in favour of the justice of the claims now put forth. From what he (Lord Cranworth) had stated, it would be seen that the law with regard to endowed schools was most unsatisfactory. The first object of his Bill was to make the statute law conform to what had for a long time been the practice of the Court of Chancery. It provided, therefore, that, at whatever time the trust was created, unless it expressly excluded all but Members of the Church, the trustees should be empowered to introduce into any scheme and to act upon "the conscience clause," which was as follows:—
No Boy shall be required to learn [specify in general Terms the Doctrine of Formularies of the particular Church, Sect, or Denomination referred to in Sect. 4 of this Act, as for example, the Catechism, Articles, or Liturgy of the Church of England,] or to attend the Celebration of Divine Worship according to [specify in general Terms the Form of Worship of the particular Church, Sect, or Denomination, as, for example, the Ritual of the Church of England,] in case his Parents or Parent, or the Persons or Person standing to him in loco parentis, shall express to the Trustees in Writing their or his Objections, on conscientious Grounds, to the Boys' doing so.That he thought was in precise conformity with what was acted on by the Court of Chancery until within the last four or five years. What were the objections to it? Several petitions had been presented that evening against the proposition; some from parishes, but one or two certainly from clergymen, and he regretted the course taken by them, because he thought it most injurious to the Establishment to which they belonged. What were the objections? Persons, speaking theoretically, said that it was dangerous and improper for the Legislature to interfere with existing vested rights of property. No one would be more unwilling than himself to do anything really in violation of rights existing in such a manner that they ought to be maintained; 694 but he never could admit that it could be competent for one age so to legislate with respect to property as to bind subsequent ages to deal with that property inconveniently and contrary to the social wants of the time. Devises and giants of land to charities had in some cases acted injuriously; but this could not be said with regard to property devoted to objects of education. With regard to property devoted to educational purposes their Lordships might go to the extent of placing themselves in the position of the founders, and considering whether, if they were now instituting the charity, they would institute it precisely in the same way as they had done 300 years ago, or whether they would not rather adapt it more to the social wants of the existing time. The founders of the educational charities to which the present Bill applied, did not wish to exclude any one, but there was at that time no other recognized religious body but the Church of England; there could be no legal Dissenters; and it might safely be inferred that if many of the old founders had to establish the foundations now they would make the endowments sufficiently liberal to embrace large classes not belonging to the Church. He did not believe that any of their Lordships could object to such an alteration. If so, the proposition he made in the Bill seemed to him most advisable, and he therefore asked their Lordships to adopt it. The other part of the Bill was likely, he was aware, to meet with more objection. He proposed that Dissenters should, not quâ Dissenters, be ineligible to be trustees for an educational charity; and in this respect the present measure differed from the Bill which passed through the Select Committee of the House of Commons. That Committee were fully prepared to sanction the appointment of Dissenting trustees, provided their appointment were confined to cases where there had been a usage for twenty-five years of Dissenters acting as trustees. It struck him that that condition was very objectionable for this among other reasons. He should like to know what was the meaning of a usage of twenty-five years in respect to the appointment of trustees. One might suppose, from such a condition being attached, that trustees were always appointed annually. But that was not the case, and sometimes twenty-five years might elapse before an appointment took place. That was a question, however, which did not 695 require to be argued at the present time. The Bill now before their Lordships authorized the election of Dissenters as trustees without any restriction as to usage. Unless some such enactment were passed by the Legislature the consequences might be such as their Lordships hardly anticipated. He had the honour of being a governor of the Charlerhouse. Members of the Church of Scotland were as much disqualified as Wesleyans or Independents, and yet Lord Aberdeen and Lord Panmure, who were Presbyterians, were both governors of the Charterhouse. What was to prevent anybody from instituting a suit for the purpose of turning those noble Lords out of the Government of the Charterhouse?
§ THE EARL OF DERBY—Lord Aberdeen is a member of the Church of England.
§ LORD CRANWORTHwas certain, at all events, that Lord Panmure was a Presbyterian, and he saw no reason why the decision of the Court of Chancery might not be applied to him. But there was a still stronger case. One of the largest endowed schools in existence was Christ's Hospital. He understood that anybody, whether Dissenter or Churchman, might become a governor of Christ's Hospital by paying £500. No doubt many of the donors of £500 were Dissenters; and they also could be expelled by a quo warranto. Moreover, several of the sub-corporations of the City of London were trustees ex officio of various educational foundations. For instance, the Mercers, the Fishmongers, the Merchant Taylors, and other companies were ex officio trustees and governors of schools at Tunbridge, London, East Retford, and other places. Were the members of those bodies who happened to be Dissenters to be turned out of positions for which they were now eligible? The doctrine of the Court of Chancery might be carried that length, and seeing that it was calculated, at any rate, to excite the feelings of a large and influential part of the community, he thought their Lordships would act wisely if they interfered before any great practical evil had occurred. He had endeavoured, as calmly and dispassionately as he could, to state what the existing grievances were and how he proposed to redress them, and he trusted their Lordships would give their sanction to the Bill of which he now moved the second reading.
§ Moved, That the Bill be now read 2a
§ LORD CHELMSFORDsaid, the present Bill appeared before their Lordships in a 696 very unpretending form, and had been explained by his noble and learned Friend in a clear and temperate manner; but it appeared to him to be a measure of infinite importance, and to involve principles which, if adopted, might produce the most serious consequences. He wished, in the first place, to add a few details to the history given by his noble and learned Friend of the attempts at legislation upon the subject of endowed schools: it was necessary to a proper understanding of this Bill. It was generally supposed that the case of the Ilminster School first occasioned a desire on the part of Dissenters to obtain some legislative enactment; but prior to the decision in that case, various Bills were introduced into the other House of Parliament, where they met with little encouragement. The Ilminster case unquestionably awakened Dissenters to a sense of the inconvenience of the position in which they were placed, and of the precarious character of the privileges which they had been allowed to enjoy in many endowed schools. He would explain as clearly as he could what was the decision in the Ilminster School case, because it was essential to ascertain the extent of the grievance of which Dissenters had a right to complain, as well as the kind of legislation to which they were fairly entitled. In the reign of Edward VI., certain lands in the parish of Ilminster were given to the inhabitants of the town for the purpose of promoting "Godly learning," and the surplus rents and profits, after the establishment of a school, were to be applied to the repair of public ways and bridges. The trustees were first of all the grantees under the deed of gift, and they were to be succeeded, as the deed expressed it, by other "honest persons of the parish." A grammar school was established, and a number of auxiliary schools for teaching reading, writing, and arithmetic, were founded out of the surplus rents and profits of the land. Some of those auxiliary schools, he believed, had been established more than 200 years, and the children of Dissenters had been admitted from a remote period to both the grammar and the auxiliary schools, without being required to attend the services of the Church or to learn the Church Catechism. Many Dissenters were appointed trustees from 1720 down to the time when the inquiry took place in the Court of Chancery. It was under those circumstances that an application was made to the Master of the Rolls 697 for a scheme for the appointment of new trustees, including some Dissenters. The Master of the Rolls was of opinion that as the charity was not merely for founding a grammar school, but the surplus funds were to be applied to the repair of public roads and bridges, all the inhabitants of the parish were entitled to the benefit of the foundation, and that there was nothing therefore to prevent Dissenters being trustees. The case was then taken by appeal before the Lords Justices, who were of opinion that the primary object of the foundation was the establishment of a grammar school, and that the grammar school being for the promotion of "Godly learning," necessarily was for religious instruction; and looking at the deed itself, not at the usage, for the purpose of ascertaining what were the intentions of the founder, they thought that the religious instruction which the founder required was religious instruction according to the doc trines of the Church of England. They considered that the repair of roads and bridges, to which the surplus rents and profits were to be applied, was a secondary and subordinate object, and that the primary object—the establishment of a grammar school—might, in fact, absorb the whole of the funds; and, inasmuch as the school was for promoting religious instruction, and that instruction, in the view of the founder, was according to the Church of England, they decided that Dissenters could not be trustees. He believed his noble and learned Friend would agree with him that the judgment of the Lords Justices was well founded. It was certainly to be regretted that the question was ever agitated in the Courts. There was no necessity for disturbing an arrangement which had existed for so long a period, and he lamented that any one should have been so imprudent—he must add, so intolerant—as to raise a technical objection for the purpose of curtailing privileges which Dissenters had enjoyed for centuries. Undoubtedly we were now reaping the fruits of that intolerance, because the decision in the lminster case opened the eyes of the Dissenters to the precarious position in which they were placed; they discovered that even when their children had been admitted to the benefit of these endowed schools their privileges existed only on sufferance, and they naturally determined, if possible, to put an end to a state of things which was so extremely inconvenient. It appeared to him, however, that in en- 698 deavouring to do themselves justice they had reached at objects at which they ought not to aim, and had sought to obtain a position the concession of which would violate some of the most sacred principles of the law. Very soon after the decision in the case referred to, an hon. Member (Mr. Dillwyn) introduced into the House of Commons a Bill for redressing the inconvenience under which Dissenters laboured, and he agreed with his noble and learned Friend that nothing could exceed the temperate manner and the fairness with which it was brought before the other House. But however mild and temperate the words of the promoter, the measure he proposed was sufficiently strong, and although his noble and learned Friend said it effected no alteration in the law, and was only declaratory of what the law was, he must differ with him thereon; for the first section provided that no school should be deemed to be a Church of England school, nor should any Dissenter from the Church of England be incompetent as such to be trustee, master, or scholar unless it was so declared by the instrument of foundation.
§ LORD CRANWORTHinquired to what Bill the noble and learned Lord was now referring?
§ LORD CHELMSFORDreplied that it was to the one ordered by the House of Commons to be printed on the 2nd of March, 1859.
§ LORD CRANWORTHexplained that the Bill which he had described as being declaratory of the law was introduced by the same hon. Member in the following Session of Parliament. That from which his noble Friend had just quoted was never referred to a Select Committee.
§ LORD CHELMSFORDsaid, that he had been misled by an endorsement upon the Bill, which had been given to him by a noble Friend, that it was "Mr. Dillwyn's Bill, 1859, before it went to the Select Committee." Mr. Dillwyn's second Bill, then, as his noble and learned Friend said, was merely declaratory of the law. It went to a Select Committee, where its provisions were so much changed that it was necessary to alter the preamble, and when it came back from the Committee it bore no resemblance to the Bill which went before the Committee. The Bill so amended was the one which was taken up by his noble and learned Friend at the end of last Session. During the present Session, Mr. Dillwyn had introduced another Bill, which was of a very startling character. By its 699 first clause he proposed to provide that no endowed school or educational charity founded prior to the final establishment by law of the Church of England—that was before the first year of the reign of Queen Elizabeth—should be deemed to have been founded for the purpose of affording religious instruction according to the doctrines of the Church of England, even although it might appear upon the face of the foundation deed that it was established for that purpose; and, by the second clause, that every educational charity founded after the first year of the reign of Elizabeth should not be considered to have been founded for the purpose of religious instruction unless it should appear upon the face of the deed that it was so founded. These were rather startling propositions, and they would show what were the views of Dissenters upon this subject. That Bill was at present before the House of Commons; and on the previous day Sir Hugh Cairns introduced another measure, which was founded on the report of the Select Committee, and was, therefore, similar to that brought in by his noble and learned Friend at the end of the last Session. His noble and learned Friend had now introduced this Bill, in which he had altered an important clause of the measure of last year; and so the matter stood at present. In order to avoid misapprehension, he wished it to be understood that, wherever an endowed school had been used for religious instruction, but that it did not appear distinctly upon the face of the instrument of endowment that it had been founded for that purpose, and where the usage had been uniform for a number of years, and Dissenters had for some time been admitted to its benefits, he should be as anxious as any one that that privilege should not be taken from them. He should be ready to agree to any Bill which should provide that in all cases of endowed schools, where upon the face of the endowment it did not appear that they were endowed for purposes of religious instruction, and where Dissenters had been admitted to such schools, they should be allowed to enjoy that privilege; and for that purpose he should be prepared to assent to the introduction of these "conscience clauses," as they were called. The Bill of his noble and learned Friend, however, went infinitely further than such a moderate provision as that, and by its fourth clause it struck at the root of all those rules of prescription by which a great part of the property of this country was held. This was 700 a very dangerous principle. With regard to prescription, Lord Lyndhurst, in introducing the Dissenters Chapels Bill, used this forcible and nervous language:—
My noble and learned Friend who sits near me said on a former night, that the principle on which his Bill is built is a principle known to the law, which is, that uniform possession during a long period of years establishes a title. It is a great principle of our law—it is a principle of the law of all civilized States—it is a principle drawn from the wise jurisprudence of ancient Rome—that principle and rule of law which are applied to the estates and civil rights of your Lordships and the people at large. Why then should it not be applied, I beg to ask, in cases of the description which I have mentioned?" [3 Hansard, lxxiv. 582.]By the fourth clause of this Bill his noble and learned Friend proposed to get rid of the prescriptive rights of centuries. Even if usage and prescription were confirmed by judicial decision or by legislative authority, it was to be of no value if in the instrument regulating the endowment "nothing be contained expressly requiring every child educated under such endowment to learn, or to be instructed, according to the doctrines or formularies of such church, sect, or denomination." His noble and learned Friend said there were about 690 endowed schools throughout the country. In the case of the great majority of them, however, he would venture to say that there was no express indication in the instrument of endowment that the religious instruction should be of a particular character. Yet there could be no doubt whatever, from the circumstances connected with these foundations, from views the persons endowing, and the continual usage after the endowment, that the object of the founders was that the religious instruction should be according to the doctrines of the Church of England. Let them take as an illustration the grammar schools founded by Edward VI. They were established on one general plan, and were intended for the promotion of sound religious education. Governors were appointed for the regulation and management of the schools and of the masters; but they were to act under the superintendence and sanction of the Bishop. In none of those endowments was there any distinct statement that the religious instruction to be given should be according to the doctrines of the Church of England. But inasmuch as the rules and ordinances for the government of the school and the schoolmaster were to be under the sanction of the 701 Bishop, it stood to reason that they could come to no other conclusion than that the religious instruction should he according to the doctrines of the Church to which the Bishop belonged. Such was the principle upon which the decision of the Court of Chancery proceeded in the cases of the Chelmsford, the Stafford, and the Sherborne Grammar Schools. In all these cases the Judges of the Court of Chancery held that they were established for the purpose of giving religious instruction according to the doctrines of the Church of England. In the Sherborne case, however, a, petition was presented by the Dissenters, upon which Lord Macclesfield made an order that the children of Dissenters connected with the school should not be compelled to attend the Church, but might go to meeting if their parents desired it. That order appeared never to have been acted upon, and there was Very considerable doubt whether Lord Chancellor Macclesfield had jurisdiction to make it. When the case came before the Master of the Rolls that order of Lord Macclesfield was adverted to, and the Master of the Rolls said that all he would do was to suspend the proceedings, and refer the parties to the Lord Chancellor, who might determine whether the order should be enforced. The matter accordingly went before the Lord Chancellor on petition; but the other side contested his jurisdiction, and on the Lord Chancellor's suggestion it was agreed that the governors should pass an ordinance by which Dissenting children should be admitted to the schools without being compelled to attend the Church or to learn the Church catechism. The Sherborne case was just one of those which led him to think that though all the Grammar Schools of Edward VI. were originally intended to impart education according to the doctrines of the Church of England, yet, Dissenters having been admitted, there was a fairground for legislating so that they should not now be deprived of their privileges. He now came to another class of schools—those which had commenced with insignificant endowments, but the funds of which were gradually increased by the liberality of Churchmen—on the faith of their being Church of England Schools. Nobody could doubt that though the original deed of endowment specified no particular religious instruction, those persons gave their donations in the faith and under the expectation that as these schools were then Church of England Schools they would still continue 702 to be so. This Bill, however, setting aside prescription, would sweep all that class of schools into its net, and entirely alter their constitution, and the very foundation of their institution. The most rev. Prelate (the Archbishop of Canterbury) had that evening presented a petition from the National Society, who were under great apprehension that unless express words of exemption were inserted in this measure their schools would be included within its operation. It was impossible to magnify the importance of this matter as it affected the National Society's Schools; and, if these schools were to be included, they would form a most difficult part of the subject. The Bill professed generally to apply to all charitable endowments for educational purposes. Here they approached an extremely difficult part of the subject. What was the meaning of a charitable endowment? Supposing, in the case of the National Society's Schools, a master's house or a school house had been given, would that be an endowment within the intention of the Bill? If the measure passed in its present shape, and litigation were to arise under it, what guarantee had they that a Judge might not decide that question in the affirmative? It did not signify whether it was money, or a house, or land, or whether the gift was large or small—it would be equally an endowment. Generally speaking, in regard to the National Schools, there was no deed of endowment—no instrument to which reference could be made to ascertain the terms on which they were instituted. But the schools having originated with the National Society, other schools had from time to time been estahlished, which had associated themselves with that society upon terms of union that clearly provided for education in the doctrines of the Church of England. If his noble and learned Friend meant to include the National Schools within the operation of the Bill, then he would in a most extraordinary manner violate every principle on which property had hitherto been protected in this country, and he would be introducing a measure fraught with the most mischievous consequences, not only in this particular instance, but in every case in which the rights of property were involved. His noble and learned Friend might say that these schools were supported solely by voluntary contributions, but such was not the case, If the children made payments, however small, those went to the support and maintenance of the schools, and 703 therefore it could not be said they were maintained solely by voluntary contributions. He so far agreed with his noble and learned Friend that he would consent to the passing of a measure which would leave persons who had enjoyed all the benefits of these endowed schools before the passing of the measure in full possession of these advantages. He believed their Lordships generally would support that proposition. It was in his opinion infinitely better to have the question settled once for all by legislation; and he most decidedly objected to leaving matters so important to the decision of any Judge whatever. His noble and learned Friend proposed that on the application of the Attorney General, or any person interested in an educational endowment, any Judge of the Court of Chancery, if he thought fit, should have power to order a "conscience clause" to be introduced into the scheme. He objected to any such power being vested in the Judge, because, though he entirely relied on the Judges and law officers of the present day, yet a time might arrive when the law officers of the Crown and Judges of the Court of Chancery would be themselves Dissenters, and in such circumstances the Judge to whom application was made would always think it fit that there should be a "conscience clause." It might be said there would be an appeal against his decision; but what would be the value of an appeal against a decision which was given on the reasonable and just discretion of the Judge? Unless that discretion was exercised in a most unreasonable manner, and the Judge clearly went beyond what was just and reasonable, no appeal would be thought of. It would be infinitely better to give the discretion to no Judge whatever, but to settle the matter once for all by legislation. He would say a word or two only with regard to the constitution of the governing bodies as proposed in the Bill. Reference had been made by his noble and learned Friend to the Dissenters' Chapels Act; but the object of that Act was to protect Dissenters in the possession of property which for a certain time they had enjoyed, not to enable them to become trustees over property with which they had never been connected. The Act secured to them the possession of chapels which they had enjoyed for a period of twenty-five years, having during that time maintained in them the same doctrine. That he took to he as much as the Dissenter had a right to expect. They were protected in the posses- 704 sion of their property, even in cases where the will of the founder had been departed from, if they had enjoyed it for twenty-five years. But if it was proper to act upon the principle of prescription in that case, why should it not be also acted upon in the present instance; and why should Dissenters claim a right to be appointed trustees of schools in which all the trustees had hitherto been members of the Established Church? Were Dissenters to receive the benefit of the principle of prescription wherever it might be for their advantage, and were they to set it aside wherever it might militate against their interests? He had been anxious to point out the difficulties that stood in the way of this measure. He had no wish to reject the Bill on the second reading, though he feared that even in Committee it would be impossible to get his noble and learned Friend to adopt his views. He would not move the rejection of the Bill himself, but if any other noble Lord thought it his duty to do so he would feel himself bound to support him.
THE LORD CHANCELLORsaid, the simple question before their Lordships was whether the Bill should or should not be read a second time, and he hoped no serious objection would be taken to the second reading. A bill on this subject was introduced by Mr. Dillwyn last Session in the other House of Parliament, which was considered objectionable in some respects. It was referred to a Select Committee, fairly nominated, and including amongst its members that distinguished ornament of his profession, Sir Hugh Cairns, who eventually, after much discussion, framed and substituted for it an entirely new Bill; which was reported to the House and generally approved, though time did not admit of its being passed into a law. A Bill embodying that compromise was presented to their Lordships at the latter end of the Session which was not persevered with for the same reason. Sir Hugh Cairns had revived the substituted Bill in the other House of Parliament this Session, and the measure of his noble and learned Friend (Lord Cranworth) now under discussion was precisely similar to it, with the exception of an alteration in the seventh clause. That being the case, would their Lordships refuse to read the Bill a second time, and so deprive themselves of the opportunity of considering all the details in Committee while they had ample time? He thought his noble and learned Friend (Lord Chelms- 705 ford) had treated Sir Hugh Cairns and others concerned in framing the Bill in the Commons, of which the one under discussion was almost a counterpart, in rather a cavalier manner. He had much respect for his noble and learned Friend (Lord Chelmsford), but without meaning any disparagement of his noble and learned Friend's abilities, he regarded Sir Hugh Cairns as just as well calculated to prepare a measure for the settlement of this important Question. The principle of the Bill was to allow the children of Dissenters to have a reasonable use of the endowed schools of the country (which in many cases would be otherwise wholly useless) and in certain cases, to admit Dissenters themselves, under the sanction of the Court of Chancery, to a share in the management of those schools. When these endowments were established, the whole population was supposed to be attached to the Church of England, and the children of all classes equally participated in the advantages they conferred; but in the present day, great numbers of the people all over the country, to whose children admission to the schools in question would be an inestimable boon, were Protestant Nonconformists; and he believed the donors of the endowments, had they for seen this different state of things, would have made provision for the admission of the children of that class of the people. He thought their Lordships were much indebted to his noble and learned Friend (Lord Cranworth) for bringing forward the Bill. Those who disliked the alterations his noble and learned Friend had made in it would have ample opportunities of improving it in Committee; and he trusted their Lordships would give it a second reading.
THE EARL OF CARNARVONsaid, he must protest against the issue on which the noble and learned Lord on the Woolsack had put this question. The noble and learned Lord had treated the objections made to the Bill in the course of the discussion as objections which arose not on the principle of the measure, but on its details. But he (the Earl of Carnarvon) contended they were objections of principle and not of detail. He admitted the Bill as it stood was a compromise. He could not say he altogether approved it in that light; but still, believing it a compromise in reference to a vexed question, he was willing in the main to accept it in the shape in which it came from the Committee of the other House of Parliament. But he could not 706 accept the insertion of a clause which was not only foreign to hut repugnant to its whole sense. The seventh clause in the present Bill provided, that unless otherwise expressed in the will or deed of endowment, no person was to be ineligible on account of his religion. But the seventh clause, as originally drawn by the Committee of the other House of Parliament, provided that, unless there was any express provision to the contrary in the will or deed of endowment in favour of any particular creed, and provided there was usage of appointing trustees indiscriminately for twenty-five years, Dissenters would be eligible. The Select Committee of the other House of Parliament framed their Bill on the Dissenters' Chapel Act, which was entirely founded on the principle of usage or prescription for twenty-five years; but the Bill under discussion ignored the very principle of the Act on which it professed to be framed. And therefore, to assert that the omission of this safeguard was an accident and detail which could best be dealt with in Committee, was inconsistent with the known intentions of the framers of the compromise which this Bill purported to reflect. As regarded the application of the measure, if passed into law, he entertained grave apprehensions that it would not only affect injuriously many thousands of schools in which Church of England education was now given, but would operate injuriously towards both religious and secular education. It would evidently deal a blow to religious education, for the moment a Dissenter was appointed a trustee and acted, the elements of dissensions would be introduced into the management of the school, which could only be removed by the removal of the cause—a religious education. That again would act upon the secular education; for the moment that the parents of the children who were in the habit of attending school became aware that the course of education was changed, they would not allow their children to remain. Under different circumstances he should have asked their Lordships to divide upon this question, but in the present state of the House he could only repeat the objections he entertained to the Bill.
THE BISHOP OF LONDONsaid, before their Lordships agreed to the second reading it was necessary that they should understand the principle of the Bill; because on that principle depended the number of schools to which it might apply. The most rev. Prelate (the Archbishop of Canter- 707 bury) had presented a petition to night from the National Society, in which it was stated that there were 5,000 schools not commonly called endowed schools, in which Church of England education was now given, which would be affected by this measure if it passed in its present shape. These schools might, in one sense, be called endowed schools, because they had endowments—very small, it was true, varying from £5 to £10—and which were, therefore, hardly to be called endowments. If the noble and learned Lord would state distinctly that he did not mean to include these schools in the operation of his present Bill, but that he meant to confine it to those schools where some alleged injury to Dissenters had already arisen, he should himself be satisfied to allow the Bill to pass. But it made a great difference whether it applied to those comparatively few schools, or whether it was to apply to the great body of the Church of England schools in the country. The noble and learned Lord seemed to intimate that the Charterhouse might be affected by this Bill.
§ LORD CRANWORTHNo, no!
THE BISHOP OF LONDONhad understood the noble and learned Lord to say that unless this Bill were passed certain noble Lords who were Governors of the Charterhouse might be objected to as Dissenters. Now, seeing that the Charterhouse was specially excepted in one clause, he conceived he was justified in believing that the noble and learned Lord had not very clearly settled in his own mind what schools would and what would not be affected by his Bill. In fact he felt convinced that in the present state of matters there was a great amount of indefiniteness as to the number of schools to which the Bill was to be applied. Viewed in one aspect it would affect nearly all the Church schools in the country; viewed in another, it would apply only to a few or a limited number; and, therefore, it became a matter of some importance to know in which aspect they were to view it.
§ THE EARL OF DERBYsaid, he agreed with the right rev. Prelate that the Bill, as it at present stood, was involved in a good deal of doubt and difficulty, and he should be sorry if their Lordships came to any hasty decision with regard to it. A certain amount of grievance had been complained of by the Dissenters to have arisen from an unexpected interpretation of the law, which deserved the consideration of Parliament. The attention of the 708 other House of Parliament had been directed to the subject, and Bills had been introduced professedly to meet the grievances which were alleged to have been sustained; but in fact going far beyond the injuries which they purported to remedy. Two Bills had been introduced by the same hon. Member of the House of Commons, the last of which had been referred to a Select Committee, comprising some of the most eminent Members of the House, by whom that Bill was carefully and dispassionately considered. While he (the Earl of Derby) said on the one hand that their Lordships ought not to be altogether guided and overruled by the decision of a Committee of the House of Commons, especially when that decision had not been submitted to the confirmation of the House itself, yet on the other, he did not think it would be acting with courtesy towards the House of Commons and the eminent Members of its Committee if their Lordships were hastily to refuse a second reading to a Bill founded upon their recommendations. It was true the noble and learned Lord had introduced a material alteration which he (the Earl of Derby) did not regard as an Amendment; but, on the contrary, as very objectionable; yet he thought it desirable by postponing this discussion to a future opportunity, when they would have the opinions of the Select Committee before them, to be enabled to consider in all its points the evils they had to meet, and the state of the existing law; and he would not exclude from consideration the altered circumstances of the country at the present time, as compared with the time when these schools were founded. It appeared from the statement of the noble and learned Lord that up to a comparatively recent period the Court of Chancery had been in the habit of framing schemes in which it inserted something analogous to what was called in the present Bill the "conscience clause," and he instanced a case where Vice-Chancellor Knight Bruce framed a scheme for the management of a school in which it was provided that it should be conducted on the principles of the Church of England, that the service should be performed according to the doctrines of the Church of England, that the masters who were to give instruction should all be members of the communion of the Church of England, and that those children whose parents did not object should be brought up according to the principles of the Church of England; but 709 that the children of those parents being Dissenters who did object to have their children so educated were yet to be admitted to the benefit of the charity. That high authority was subsequently confirmed by another high authority (Lord St. Leonards), who laid down a similar scheme. It subsequently appeared however, that, contrary to what had been the practice for many years, it was not competent for the Court of Chancery to insert in any scheme a provision analogous to what had been called—not very happily—the "conscience clause" of the Bill, and therefore it was now sought to modify the law so that, under certain restrictions, the children of Dissenters might he admitted to the benefits of education in endowed schools without being compelled to adopt the formularies or adhere to the services of the Church of England. He need not remind their Lordships that such a concession had at no distant period been granted in the more important cases of the Universities of Oxford and Cambridge, where Dissenters were admitted to the advantages without being subjected to the obligation of attending Divine service according to the forms of the Church of England. But the question put by the right rev. Prelate (the Bishop of London) was of great moment. It was important to know whether the national schools, professedly Church of England schools, were to be affected by this Bill. These schools had many of them small endowments, though the greater part of their support was derived from voluntary contributions. He apprehended that the Bill was not intended to apply to those schools, but to those endowed schools only which were not upon the face of the foundation deed shown to be Church of England schools, and into which schools the children of Dissenters might be admitted consistently with the wishes of the founders. For his own part he regretted the unfortunate interpretation of the law which had prevented the Court of Chancery from acting in accordance with its practice in former times. Now that only question is raised, he must be allowed to express his doubt whether the Court of Chancery was the best tribunal for deciding cases of this kind; because he was struck by the argument of his noble and learned Friend (Lord Chelmsford) that there was nothing whatever by which the discretion of the Lord Chancellor would be guided and limited. If the Lord Chancellor for the time being thought that such and such things should 710 be done in the cases which came before him, it would be done, or vice versá; and, as had been pointed out, an appeal from him to a higher court was, in the present state of our tribunals, something of a mockery. The whole of the questions which would arise under this Bill would be decided according to the bias of the mind of the Lord Chancellor for the time being, and it would depend entirely upon him whether in one school Dissenters should be admitted, and whether in another they should he entirely excluded. With reference to the "conscience clause," he wished to point out that it went much beyond the rule down by the Vice-Chancellor Knight Bruce. The Vice-Chancellor laid down, as he understood, that children belonging to the Church should be instructed in the doctrines of the Church, and that as far as they were concerned, the will of the founder should in all respects be complied with, but that upon application from Dissenters their children should be admitted to the educational benefits of the school, without being compelled to receive instruction in the Liturgy and Catechism. In the clause, however, there was no such exception. The Lord Chancellor might order that no boy whoso parents conscientiously objected to his learning the doctrines of the Church should be forced to do so, whether the parents were members of the Church or Dissenters. The clause, therefore, went far beyond the object proposed by the noble and learned Lord—namely, the relief of Dissenters only. Then, again, considerable expense would be entailed upon the small endowments of these schools if any person were authorized to apply to the Court of Chancery—an expense which, in some cases, might absorb the whole fund available for educational purposes. For this reason he should have preferred a direct enactment, mitigating the stringency of the present law, and adapting it, if it was thought right so to do, to the altered state of things at the present day, rather than a Bill authorising the Court of Chancery to lay down these regulations. If, however, their Lordships thought that application should be made to the Court of Chancery, it would, in his opinion be better that, instead of empowering the Court to draw up rules and regulations which would be absolutely binding upon the trustees, the trustees should by an order of the Court he enabled, if they thought fit, to exempt any children in the school from attendance during the teaching of Church doctrines. Such a discretion 711 should be vested not in the Court but in the trustees, who were necessarily acquainted with the circumstances of the locality, not permitting them, however, to deviate in the slightest degree from the obligation to carry on the school according to the principles of the Church. The other provision of this Bill was one of considerable importance, and would require serious attention. He did not wish now to discuss the clause by which all persons, whether Dissenters or not, were declared eligible as trustees unless it was otherwise expressed in the will of the founder, or the more limited proposal supported by the authority of a Committee of the other House. But the greater the discretion vested in these trustees as to the superintendence and management of the schools the more care must be taken with regard to the appointment of Dissenters, so that schools intended for the benefit and education of members of the Church should not fall into the hands of persons who did not belong to the Church. For his own part he should be anxious that their Lordships should not hastily dismiss a Bill introduced upon such high authority, and which dealt with an admitted grievance. While acknowledging, however, that this grievance might demand legislation in the direction, though not to the extent, proposed by the noble and learned Lord, he hoped ample time would be afforded for considering the measure in detail. Whatever might be his objections to the Bill in its present shape, he could not join in any vote against the second reading; but he hoped that the right rev. Bench especially would examine the clauses before the Bill went into Committee. In such a case as this he trusted sincerely that Parliament would be willing and anxious to consult the feelings and wishes of all classes of the community in such a manner as, while securing these endowments to their original purposes, would remedy any practical grievance of which, under the new interpretation of the law, the Dissenters might reasonably complain.
§ EARL GRANVILLEsaid, he was glad to find that their Lordships seemed willing to pass the second reading of a Bill which was intended to remedy an acknowledged evil. He was sure that his noble and learned Friend's object was to have every point of the measure most carefully and fully considered; and when it had been read a second time it might even be a proper subject for inquiry by a 712 Select Committee. From the tone of the discussion, however, he was rejoiced to find that the Bill was not looked upon as affording an occasion for party or religious strife, but had been received in a spirit of conciliation and would be fairly dealt with on all sides. As to the alterations suggested, he concurred very much in what had been stated respecting the reference to the Court of Chancery. On this point, remembering the fairness displayed by Sir Knight Bruce and Lord St. Leonards towards Dissenters in regard to these schools, he thought it was not quite fair in noble Lords opposite to cast a slur by anticipation upon any Dissenter who might hereafter rise, by his ability, to a high judicial position, and to suppose that in such a case the Church would be unfairly treated. But should questions affecting these trusts be left entirely to the discretion of the Court of Chancery? For his part he thought provision should be made in the Bill for any exceptions which Parliament might contemplate—that the Bill also should clearly define the schools to be subjected to its operation—and should lay down some broad and general principles which should apply to all cases, instead of trusting to subsequent judge-made law, or the caprice of trustees. He could not conceive any more fertile cause of religious enmity springing up in all parts of the country, than that it should be left to the trustees to decide whether or not they should make the necessary provisions by which the children of Dissenters should be admitted into the schools. By taking these precautions, moreover, the schools would be saved the great expense of applying through the Attorney General or otherwise to the Court of Chancery. With respect to the seventh clause, he thought much was to be said on both sides. The noble and learned Lord had made out a strong case in favour of his own clause and against the clause proposed by the Committee of the House of Commons. Having made these observations he should conclude by expressing his satisfaction that the House intended to give a second reading to the Bill.
THE BISHOP OF OXFORDsaid, that if it were distinctly understood, that in not resisting the second reading of the Bill, no further principle was conceded than the principle as limited by the noble Earl (the Earl of Derby), that was to say, that this House was committed to relieve an acknowledged grievance by legislation which 713 should not trench upon the due right3 of the Church schools, then he, for one, should rather wish to see the Bill read a second time; because he had been always anxious to manifest, as far as possible, towards his Nonconformist brethren the greatest amount of kindness and charity consistent with maintaining his own principles. He felt that so strongly that he had uniformly encouraged the clergy in his diocese to admit even to their parochial schools the children of Dissenters upon very much the same terms as those contained in the "conscience clause." But there was a wide difference between the managers of schools in their discretion allowing this latitude, and the Legislature interfering with Church schools and the establishing the admission of Dissenting children as a right. He did not feel himself prepared to admit, in the case of a great number of national schools with a bona fide endowment, that it would be a fair use of that principle to say that in such schools there should be a legal right given to Dissenters to enter them. In parishes where much ill-feeling prevailed, an attempt to establish a barren principle of that sort would involve the national schools with small endowments in litigation and expense; and parish after parish, which now worked in amity and peace upon this principle, would be given up to ill-will and ill-blood. If, then, their Lordships so understood it that they did not commit themselves to any principle beyond that, he should be glad if the Bill were read a second time. Not that he believed that in the "conscience clause," or still more in the alteration made in the Bill in the House of Commons, there was not involved a very different principle, to which he could not give his assent—he meant the principle of bona fide changing a vast number of what were in truth intended to be, and what had been found to be, and administered as, Church schools, into Church schools no longer. He hoped that he did not form any uncharitable view of the matter; because he found that one Dissenter from the Established Church, whom he had always respected greatly for the plainness and openness with which he conducted his opposition to what he thought a great evil—namely, an Established Church—shared that opinion entirely with him. Mr. Miall, speaking at a meeting of the Society for the Liberation of Religion, as it was called—that was, a society the professed purpose of which was to put down the Established Church as an 714 establishment, and to separate altogether the Church from the State, used these words:—"The Judges have decided this matter according to the principles on which only they could decide it, whilst an Established Church is maintained." And he then went on to say, "We, Dissenters from the Church, are making a deadly thrust on the principle of an Established Church in what we are endeavouring to gain as to these endowed schools." Now surely he could not be thought unnaturally jealous as to the effect of this legislation, when those who said that they united to destroy the Established Church declared that they were aiming a deadly thrust at the principle of an established Church in the legislation which they proposed. If it were to be admitted in any way that the education of this great people through the multitude of Church of England schools which the piety of the Church of England had established for teaching to children the truth as it was held by the Church of England; if the principle was that those schools were by any chicanery or fraud to be taken out of the hands of the Church of England, and confided to other hands, then such a Bill ought not to be read a second time. But if it were limited, as it had been limited that night, to the redress of an admitted grievance, by plans which should violate no principle, he for one would he sorry to oppose the second reading. What had fallen from the noble Earl near him (Earl Granville) was well worthy of consideration, namely, whether the best way of arranging this matter would not be to refer it to a Select Committee. It was essentially a matter of detail; and in discussing details in the whole House, there was always the chance of some incautious word stirring up unkindly feelings somewhere; whereas, if the matter were discussed in a Select Committee, it was highly probable that clauses might be arranged which should preserve what was felt necessary to be preserved, and remove an admitted grievance. Such a Committee would not have to take evidence, but merely to arrange the terms of the Bill. Nothing could be lost by such an arrangement, and a great deal might be gained. He trusted, therefore, that the noble and learned Lord would adopt the suggestion of the noble Earl, and refer the Bill to a Select Committee.
THE LORD CHANCELLORtrusted that before deciding to refer the Bill to a Select Committee, the noble and learned Lord would take time to consider and watch 715 the progress of the other Bill before the House of Commons.
THE EARL OF DONOUGHMOREinquired why the noble and learned Lord had excluded Ireland from the operations of the Bill?
§ LORD CRANWORTHBecause the Bill of the House of Commons had excluded it. The state of education in lie-land, and the constitution of schools there, were so different from what they were in this country, that he thought it would not be advisable to include Ireland in the measure. With regard to what the right rev. Prelate had said respecting national schools, if he understood the constitution of these schools—although they might be endowed with a house for the master or mistress—they were not substantially endowed schools, and certainly it was not his intention to apply the Bill to schools such as they.
§ On Question, Resolved in the Affirmative: Bill read 2a accordingly: and committed to a Committee of the Whole House on Friday, the 17th instant.