MOTION FOR AN ADDRESS. (Hansard, 27 February 1863)

THE BISHOP OF EXETER
, who had given notice— To move that an humble Address be presented to Her Majesty, praying Her Majesty to withhold Her Assent to the Sixteen Ordinances framed by the Durham University Commissioners, on the 13th of June 1862, for the Government and Administration of that University, said, he felt himself in a position of great difficulty, because the observations he should feel called upon to make, would seem to demand an answer which their Lordships could not give or understand, unless they had read the Ordinances, and made themselves masters of the whole subject. The right rev. Prelate, whose name stood first in the Commission (the Bishop of Durham), and who would probably think it his duty to reply on behalf of his brother Commissioners, was absent, not having had notice of his Motion; and he (the Bishop of Exeter) should be most unwilling to proceed in his right rev. Brother's absence. This, however, was the last day on which the question could be brought forward within the forty days limited by the statute; and he wished to know, therefore, whether, if the matter were now postponed, the Government would give further time for the consideration of the subject, as though it had been discussed within the forty days specified? The right rev. Prelate then formally made' his Motion.

§ EARL GRANVILLE
said, it was impossible that the Government could agree to the Motion, the effect of which, if 866 carried, would be to render absolutely null and void the Ordinances agreed upon eight months since by the Commission, which was now extinct. That Commission was appointed, not by the Government, but by the Act of Parliament — which received the assent of the Legislature. The Commissioners were named in the Act, including the Bishop of Durham, the late master of Harrow, Dr. Vaughan, and four Members of the other House of Parliament selected from either side of the House. He had been told that the recommendations of the Commissioners were unanimously adopted. There could be no difficulty in raising the question as to these Ordinances, because by the Act it was expressly provided that any person connected with the University might appeal to the Privy Council. It was also provided that the Ordinances should be laid before Parliament for forty days, and upon an Address from either House within that time they should at once fall to the ground. The right rev. Prelate on the previous evening had questioned the legality of including within the prescribed period of forty days the sixteen days of last Session during which the Ordinances were upon the table of Parliament; but the Law Officers of the Crown had given an opinion upon the point which was quite in accordance with the view stated by the noble and learned Lord on the Woolsack. The Government were required by the Act to lay the Ordinances at once before Parliament; and there was no hardship in reckoning the sixteen days of last Session, because the public had had the advantage of considering the Ordinances during the whole of the recess. Upon the first day of the Session an hon. Member of the other House connected with the county of Durham asked a question, which was answered; but no further steps were taken. As he might be called upon to act in this matter, as presiding over the Judicial Committee of the Privy Council, he did not wish to form or to express any preconceived opinion. The right rev. Prelate asked, whether, Parliament having by its silence given its consent to these Ordinances, if at any future time a Motion upon the subject should be made, the Government would be influenced by the views of the majority. Their Lordships must exercise their veto now or never. Of course, if Parliament at any time expressed a distinct opinion upon the subject, it would be the duty of the Government to give it a careful considera- 867 tion; but he could not take upon himself to say what would be the course of Government without knowing what arguments would be used in the course of do-bate. It was with reluctance that he found himself unable to answer the appeal of the right rev. Prelate in the affirmative; but their Lordships must exercise their veto now or never, and he trusted they would not take the strong step of rejecting the Ordinances without knowing anything of the facts.

§ THE EARL OF DERBY
said, he thought the noble Earl (Earl Granville) had in some degree misapprehended the appeal made to him by the right rev. Prelate. He heard with surprise portions of the reasons why the noble Earl could not comply with that request; for, as he understood them, they were opposed to the general views entertained by the noble Earl. The noble Earl said it was impossible to comply with the request which had been made, because the Motion, if successful, would overthrow the whole of the labours of the Royal Commission and their recommendations. Of course, the result would be that the Ordinances would become null, and therefore the labours of the Commission would be rendered useless; but if it was not intended to give Parliament the power to exercise such a veto, what was the object of allowing the forty days within which Parliament should have the power of moving an Address for the rejection of the whole or part of the Ordinances? This power would be quite useless if they were to be told that they could not agree to such a Motion because the Commissioners had unanimously agreed to those Ordinances. When the noble Earl said that Parliament ought not to decide this question without being acquainted with the merits of the case, he (the Earl of Derby) quite concurred with him; but they were not, as the right rev. Prelate rightly observed, in a position to discuss Ordinances which were only placed in their Lordships' hands that morning. Without expressing any opinion as to the construction of the term of forty days, he would remind the noble Earl that the mere laying papers on the table without calling attention to them and without printing them, was no notice at all. It would have been much more convenient if at that time the Motion for their being printed had been made, and then the Members of both Houses would have had them during the six months' recess. The noble Earl was 868 mistaken in the representation which he gave of what occurred in the other House. He said that at a very early period of the Session a question was asked by an hon. Member nearly connected with Durham; that having received an answer, he took no further steps; and that therefore it was to be assumed that it was not then thought convenient to discuss the question in the presence of four Members of the Commission. That is not a correct representation. The fact was, the hon. Gentleman asked the question as to those Ordinances, and followed it up by a question asking the Government to allow the evidence taken before the Commission to be printed, so that the House might form a better judgment on the merits of the case. Was that refused? Certainly not; it was assented to, the Government acknowledging the reasonableness of Parliament having the evidence before them, and they promised to lay that evidence before the House; but it had not yet been printed, so that all the cause of the delay was not attributable to those who questioned the excellence of these Ordinances. The question of the right rev. Prelate was simply whether the Government would undertake not to decide, notwithstanding the expiration of the forty days, to recommend Her Majesty to give Her sanction to these Ordinances. He was aware that if Her Majesty confirmed these Ordinances Parliament had no longer any power to overthrow the whole or part of them; but he was fully convinced, though their legal power might have ceased to exist, that any Address to the Crown from either House of Parliament would not be treated by Her Majesty's Government or any other servants of the Crown, who knew their duty to it and the country, with indifference. He thought the request of the right rev. Prelate a most reasonable one, and one which should be acceded to; more particularly when they remembered that there was a petition on this subject before the Privy Council, and that the Crown could not give its assent till that petition was disposed of. He did not therefore think they were asking much in requesting that the Royal Assent should be withheld until they had an opportunity of acquainting themselves with the facts and discussing the question. He begged to call their Lordships' attention to what the circumstances were under which this Motion was made. The right rev. Prelate who made this appeal was, he believed, the 869 sole survivor of the original founders of that institution, which was now about to be remodelled. Thirty years had not yet elapsed since its original foundation, and some of the donors to that foundation were still living. The right rev. Prelate was a member of the Chapter when the foundation took place; and he must say that a very strong case was necessary in order to justify them in overriding the intentions of the founders within a period of thirty years, and in the lifetime of the donors to divert to purposes wholly alien the funds they had subscribed. He would mention one case:—A lady was still living who had founded a fellowship and a scholarship; the fellowship was, he believed, of £100 a year, for ten years; but the amount of the scholarship he had forgotten. These were by the Ordinances to be thrown into the common fund, and during the lifetime of this lady a scheme had been proposed by which the funds were to be diverted from the purposes she had intended. The Commissioners, however, had had the kindness to assure her, as a matter of grace and favour, that no alteration should be made during her lifetime; but the moment of her death, her intentions were to be wholly disregarded. He would not enter into the merits of this question, his only object being to show that the application of the right rev. Prelate to have these Ordinances discussed was not an unreasonable one; while, on the other hand, there seemed something gratuitous in the noble Earl's refusal.

§ EARL GRANVILLE
said, he thought the noble Earl opposite had stated this question rather unfairly. He (Earl Granville) had already stated, and he was ready to repeat, that not only on this question, but on all others, it became the duty of the Government, after the lapse of the specified period, and in absence of any Address in either House of Parliament, to advise Her Majesty to give effect to the Ordinances which had been issued. The Government were prepared to give the most respectful consideration to any decision of their Lordships' House—but the noble Earl asked them to go beyond the period limited by Act of Parliament. He could not help saying that would be making a, most dangerous precedent. A certain time was given by Act of Parliament during which either House might interpose; it was perfectly clear that all parties were cognizant of the Ordinances 870 for seven months; and it would be unwise in such a case for Government to exceed the limit prescribed by Parliament. But beyond this the question was really a most useless one; for the noble Earl had proved that practically the matter was in the hands of the Dean and Chapter of Durham, because until every one of the petitions before the Privy Council had been withdrawn, or had been discussed, it would be utterly impossible for the Government to advise the Queen to give her sanction to these Ordinances. Both the question and answer therefore appeared to him the most delusive that could well be proposed.

THE BISHOP OF EXETER
said, that the noble Earl (Earl Granville) had said very truly that it was no surprise upon him (the Bishop of Exeter) that the consideration of these Ordinances was to take place before the Privy Council. But he had never professed to be surprised at all. He had only wanted that their Lordships should have an opportunity of exercising their constitutional power when they should be properly informed of the merits of the case. He must, however, be permitted to say that these measures which delegated Parliamentary powers to Commissioners seemed to him, who was an old-fashioned fellow, to require very cautious consideration. He would say that he did not think that he was speaking in an unconstitutional spirit when he said that they demanded a special jealousy. A Commission was issued, and the Commissioners were to make inquiries, and upon these inquiries to make Ordinances, which Ordinances were to obtain the absolute stringency of law unless Parliament assumed its power in proper time of addressing the Crown to withhold its sanction.

§ THE EARL OF DERBY
, interposing, said, that the Ordinances would not have the force of law if simply Parliament did not interpose. If Parliament did not interpose, it would then be lawful for the Crown to give or withhold its sanction.

THE BISHOP OF EXETER
thanked the noble Earl for correcting him. The Crown was permitted, in the event of Parliament not interfering, to legislate without the co-operation of Parliament. He had no fear of the noble Earl (Earl Granville) exercising any such power unconstitutionally or unfairly, but they were bound to look to possibilities when the prerogative and the interests of the people were con- 871 cerned; and it seemed to him that they were also bound to be extremely cautious in. suffering power to be given to the Crown to issue Commissions which were to frame ordinances and to exercise corresponding powers. The noble Earl said there would be an opportunity for them to take cognizance of this matter. But had their Lordships at present had time to do so? The other House of Parliament was interested, and the whole country was interested; and yet, he would ask, did the country or even their Lordships know anything about the matter? These Ordinances had only been put into their hands that morning, and beyond himself, he did not believe that any other Member of their Lordships' House had previously been in possession of them. As far as that House was concerned, they had not had the evidence printed, and therefore it had been kept from the knowledge of their Lordships. He agreed that it would be unfair to the right rev. Prelate who was upon the Commission (the Bishop of Durham) to discuss this question in his absence, especially as he was the only Member of the Commission who was in their Lordships' House, and he therefore felt that it would be much better to leave the discussion to take its course before the Privy Council than at present to induce their Lordships to come to a vote upon the subject. He would, therefore, not press his Motion.

§ THE EARL OF DERBY
hoped that the noble Earl would not object to lay upon the table the evidence taken before the Commission, and which had been laid upon the table of the other House.