Lords Sitting of 2 June 1864

MINUTES.
PUBLIC BILLS—Second Reading— Ecclesiastical Courts and Registries (Ireland) (No. 96); Summary Procedure (Scotland)* (No. 89).
Committee—Mortgage Debentures (No. 99).
Third Reading— Local Government Supplemental* (No. 71), and passed.

FORTIFICATIONS—DEFENCES OF THE BRISTOL CHANNEL.—QUESTION.
LORD PORTMANsaid, that their Lordships would remember that last year he had directed the attention of his noble Friend the Secretary of State for War to the defences of the Bristol Channel—a subject which had been in his mind for many years. Sir William Napier was of opinion that the Bristol Channel required more defence against a privateering enemy than almost any other part of the country, in order to protect Bristol, Gloucester, and the Severn. His noble Friend informed him, in answer to his Question, that the Government had purchased sites for the erection of defensive works on the shores of the Bristol Channel, but that no Votes had been taken by his predecessor (Sir George Lewis) for

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the purpose of erecting works on those sites. His noble Friend, however, said that the subject should receive his careful attention. He now begged to ask his noble Friend, Whether any progress had been made in preparing these defences?
EARL DE GREY AND RIPONsaid, he agreed with his noble Friend as to the importance of this subject. Sites had been purchased, and the Government were negotiating for others on which to erect works for defending both sides of the Channel, and this Session a Vote had been taken for the purpose of erecting the fortifications. A part of the works was in a forward state, and as soon as possible the remaining portion would be commenced. He hoped that the principal portion, if not all, the works would be completed in the course of the present year.

THE CIRCASSIANS.—QUESTION.
VISCOUNT STRATFORD DE REDCLIFFEwished to ask the noble Earl the Foreign Secretary, Whether he could give the House any information he might possess relative to a subject which had excited great interest, by means of the narratives in the public press, which had given great pain to all who had perused them—the state of those Circassians who had gone into voluntary exile owing to the late successes of the Russian Government? The Circassians, during a number of years, had won universal sympathy and respect by their vigorous efforts to preserve their national rights against an encroaching Power. They had now been unfortunately obliged to yield, and rather than remain under a Government which they had so much reason to dread and detest, they had emigrated in large numbers, at the risk of their lives, and with no provision of any sort. He desired to learn if the noble Earl would furnish the House with any information upon the subject; and, above all, with respect to what had been done by the Russian Government to alleviate the suffering which they had caused, or as to what course had been pursued by the Turkish Government for the assistance of the sufferers. No one could regard the misfortunes of the Circassians without interest, because there were many circumstances which commended them to our consideration, and by no means the least was the bravery with which they sought to sustain their national independence. He should also be glad to know if the noble Earl
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had any objection to lay upon the table of the House any papers bearing upon the subject?
EARL RUSSELLwas understood to say that he had no objection to furnish to the House any information upon the subject which he might receive. The details were very painful, and he feared that great barbarities had been committed.

MORTGAGE DEBENTURES BILL.
[NO. 99.] COMMITTEE.
Order of the Day for the House to be put into Committee read.
LORD REDESDALE,in moving that their Lordships go into Committee on the Mortgage Debentures Bill, said, he desired to explain that this measure had originally come before them as a Private Bill. But it appeared to him that the measure was of far too important a character to be properly considered a Private Bill—he had taken the liberty of bringing it up as a Public Bill. In that form, if its provisions were found to be dangerous or objectionable, they would be more open to the revision of Parliament than if they formed part of a Private Bill. Under these circumstances, not as adopting the provisions of the Bill with any great confidence, he proposed it as a public measure, taking the provisions of the company which originally promoted the measure as the basis of the Bill. There were some of the clauses which he thought demanded the attention of their Lordships.
Moved, That the House do now resolve itself into a Committee upon the said Bill.
LORD PORTMANthought the thanks of the House were due to the noble Lord the Chairman of Committees for stopping the progress of the Bill as a private measure. It was another new move for facilitating the lending of money to the prejudice of the heir. He thought that many of its provisions required the cautious attention of the House.
EARL GREYsaid, he could assure the noble Lord that the Bill had been most carefully considered by the Committee which sat upstairs. There was nothing in it which would give any powers to the owners of settled property which they did not at present possess. The object of the Bill was to afford facilities to the owners of money on the one hand, and the owners of land on the other, to make arrangements for their mutual convenience; and it pro-

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posed to sanction the formation of companies for the purpose of carrying out such arrangements; and they were authorized to issue mortgage debentures when they were shown to have capital sufficient to cover such securities. The majority of the Committee of their Lordships' House were satisfied with the securities provided in the Bill, and there was no reason to believe that they would be found insufficient. With respect to the necessity for some such measure, he might observe that trustees now experienced the greatest difficulty in finding eligible securities upon which to invest money under the strict terms usually contained in settlements. On the other hand, it was not an easy matter for landowners to obtain loans when they needed them. From various causes the great Insurance Companies now invested their money in other than landed securities, and consequently the amount available for the wants of the landowners was constantly diminishing. Unless some further facilities were afforded to trustees, there would be a continually-increasing difficulty in obtaining loans upon landed security; and if the clause relating to trustees were struck out, the Bill would be wholly inoperative. He agreed with the Chairman of Committees that it was not right that such large powers should be given by a Private Bill, and the thanks of the House were due to the noble Lord for having introduced this measure. He thought trustees might invest trust money in land through the intervention of large companies, whose operations were carefully guarded by Acts of Parliament, even more safely than through the intervention of law agents. The expense which would be saved was also a very important object.
LORD OVERSTONEagreed with the noble Earl that it was extremely desirable that every facility should be given for the obtaining of money upon the security of land; but, at the same time, he felt most strongly that Parliament ought to watch legislation on this subject very carefully, and not to encourage the formation of companies which might not deserve public confidence. He had several objections to the present Bill. The first was, that the debentures to be issued by these companies would go forth to the public as mortgage debentures, whereas they were in truth nothing of the kind. They were merely acknowledgments of debt on the part of a public company. His second objection was, that the indirect consequence likely
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to arise from these transactions was, that they would give rise to a wholesale system of registration. But registration would not give to the holders of these debentures any additional legal security. Thirdly, he thought their Lordships would never sanction the proposal that trustees, who were authorized by the parties creating the trust to lay out their money only on the best security, should be authorized by Parliament to invest it in debentures of this kind. The company itself must pay a full rate of interest to its subscribers; then how could they afford to pay interest upon mortgage debentures as well, except by borrowing money on inferior classes of mortgage security? He held in his hand an advertisement of the Land Investment Society, sanctioned by the high character and position of a noble Duke (the Duke of Marlborough), which advertised that they were ready to lend money upon landed security, or upon houses in the course of construction, either with or without a deposit of the lease; and then followed another advertisement by the same company, stating that they were prepared to issue mortgage debentures upon the security of houses in the course of construction with or without deposit of the lease. With regard to trustees who were empowered to invest in land, they were bound to invest in security of the best class. If trustees invested in these mortgage debentures their only remedy would be against the company, and if the company failed to pay, their only remedy would be to come in with the other holders of debentures upon the assets of the company. If the assets of the company were insufficient, the claim must ultimately be made against the trustees themselves. He did not think that such transactions were a proper way of discharging a trust—certainly the Bill gave no adequate protection for those whose benefit the trust was created. The noble Lord said, that if this clause were struck out the Bill would be virtually destroyed. Then, what other inference could be drawn than that this was a most objectionable Bill? He trusted his noble and learned Friend on the Woolsack would apply his acute and sagacious mind to this Bill, and say whether its provisions could be safely and properly carried out.
THE DUKE OF MARLBOROUGHsaid, the principle of the Bill seemed not to be well understood. The second clause of the Bill explicitly declared what the nature of the instrument should be by which the

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transactions of the company were to be carried on. It was to be a deed under the common seal of the company, duly stamped and signed by two directors, than which it was difficult to conceive a document of a more formal character. It would be, in every sense, a mortgage issued by the company, taking the form of a debenture. The real security which these companies offered to the public, and on which the mortgage debentures were issued, consisted of the property vested in them by virtue of the loans they made. Then there came an additional security in the shape of the company's guarantee fund, over and above all the other securities, and consisting of the property invested in Consols, Exchequer Bills, cash at the bankers, and finally, the uncalled share capital of the company. These companies would not depend for their income upon the small difference between the interest they paid for money and the interest they received on advances. Their profit would be derived from the commission charged on their transactions. Their advances would be made upon the report of competent surveyors and valuers, who would take into account all the circumstances of the property which constituted the security. It could not be fairly said that a company regulated by the provisions of that Bill was a company of a speculative character. Safeguards were provided by the measure against the aggregate amount of the debentures issued by a company at any one time exceeding the aggregate amount of the securities which it held. He thought that the country was indebted to the noble Lord the Chairman of Committees, for the suggestion that the measure should be treated as a public, and not as a private Bill; but he could not approve the alteration in the Bill which the noble Lord had suggested, because, if adopted, he believed it would render the measure nugatory.
THE LORD CHANCELLORsaid, that there was no necessity for an Amendment of which notice had been given by the noble Lord the Chairman of Committees, because the trustees contemplated by the terms of that Amendment already possessed power to invest their funds as proposed. This question of the investment of trust monies was, however, one of great importance. Many of their Lordships were doubtless aware that the rules of the Court of Chancery on the subject were most careful and most cautious. Their general principle was this—trustees who were au-
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thorized to lend money on real estate were forbidden to lend more than two-thirds of the value of the security. In the case of leaseholds the proportion was only one-half. Whether or no the powers of trusts hereafter created should be enlarged was a question worthy of consideration; but for his own part he could not consent to any enactment that would alter the provisions of any existing trust. At the same time, he felt bound to state that he had found, in his judicial capacity, that the greatest hardship and inconvenience often arose from the limited powers conferred upon trustees. Trustees were naturally and properly desirous to be safe, and, consequently, they were averse to laying out their money except upon securities expressly within the terms of their trust. Generally speaking, there was even an indisposition to exercise the powers which they actually possessed, and to keep to a course of investment about which there could be no possible anxiety. If, for example, they had power to invest their monies in the public funds or on mortgage, they would argue that there might be some little danger in adopting the latter course, whereas there was none in buying Consols. The result was that trustees were frequently disinclined to look out for eligible mortgages; and a limited income was often thus considerably reduced, or, at least, not improved, because the trustees did not choose to incur the risk of making a more profitable investment. So strongly was this evil felt, that in 1859 an Act was passed (the 22 & 23 Vict. c. 35), which provided that wherever a trustee was not forbidden to invest trust monies on real security in any part of the United Kingdom, in Bank of England or Bank of Ireland Stock, or in East India Stock, it should be lawful for him to do so. It was doubtful whether that enactment referred to existing or future trusts, for there were conflicting decisions on the point; but the Act was a precedent for Parliament to interfere to enlarge the powers of trustees. With regard to companies under the present Bill, the security offered had been correctly stated by the noble Duke (the Duke of Marlborough); but the reason urged by the noble Lord (Lord Overstone) against permitting trustees to invest in this kind of security was conclusive—that no assignment would be made to them of any portion of the company's assets, and he would consequently have no direct or personal remedy. All that he could do would be to

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call upon the company to realize its assets, to call up its unpaid shares, and to make an equal distribution amongst the whole body of its debenture-holders, and they would only rank with the whole body of creditors under similar circumstances. He thought that it would be most undesirable to permit trustees to invest trust monies in securities of that kind.
THE EARL OF DONOUGHMOREobserved, that every day the difficulty of obtaining money on the security of land was becoming greater, on account of the many other ways in which money could now be invested, and he thought that the clause which enabled trustees to lend money for the improvement of land would be highly beneficial.
Motion agreed to.
House in Committee accordingly.
On Clause 32 (Investment of Trust Money on Mortgage Debentures).
LORD PORTMANsaid, this clause enabled trustees to do what they were positively forbid doing under settlements, and he moved that the clause be omitted from the Bill.
THE MARQUESS OF BATHseconded the Motion.
After a few words from Lord CRANWORTH,
THE LORD CHANCELLORsuggested that the clause should now be negatived, in order that it might be brought up in an amended form on a future stage.
Clause negatived.
Amendments made.
The Report thereof to be received on Tuesday, the 14th Instant, and Bill to be printed, as amended. (No. 107.)

ECCLESIASTICAL COURTS AND REGIS- TRIES (IRELAND) BILL—(No. 96.)

  SECOND READING.
  Order of the Day for the second reading read.
  THE ARCHBISHOP OF ARMAGHsaid, My Lords, there are four principal objects which we seek to obtain by the Irish Ecclesiastical Courts and Registries' Bill, which I now propose be read a second time—
  1st. That the twenty-six Diocesan Courts and Registries be reduced to twelve, giving each Bishop one Court and Registry.
  2nd. That the mode of procedure in the Provincial and Diocesan Courts be simplified and improved, and the ecclesiastical fees be made more uniform and placed on a more satisfactory basis.
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  3rd. That the number of Vicars General be reduced to twelve.
  4th. And that Appeals from the Metropolitan Courts in Ireland, respecting matters of doctrine, should, instead of being made to the Court of Delegates in Ireland, be heard and determined in the same manner as appeals from the Metropolitan Courts in England are.
  1st. Before the Church Temporalities Act was passed, there were four Archbishops and eighteen Bishops in Ireland. That Act united ten of the Bishoprics to ten of the remaining Sees. There was no provision made for the union of the Diocesan Courts and Registries as there was formerly, when Down and Connor were united by Killala and Achoury. The consequence is, that while there are only twelve Bishops, there are twenty-six Diocesan Courts and Registries. The Bishop of Meath alone has only one Court and Registry. The other Bishops have two and some three each. This is a source of inconvenience to the Bishops and clergy. In the diocese of Elphin, when a clergyman has to transact business with the Bishop, which requires a reference to some document in the Diocesan Registry, he has to travel to Elphin, which may be as much as forty miles from his residence, and then come on to Kilmore, which is forty miles more. If he has to be instituted or collated to a benefice, he has to bring the Registrar with him and pay his travelling expenses; whereas, by the provisions of this Bill, the Registry will be close to the Bishop's residence at Cavan, and the clergy be saved all this trouble and expense. The withdrawal of testamentary jurisdiction from the Ecclesiastical Courts has left them dependent henceforth on fees derived from marriage licences and church business. These are not sufficient to pay for twenty-six Ecclesiastical Courts and Registries. In the diocese of Killala and Achoury there are only twenty-six benefices; in the Diocese of Clonfert and Kilmacclugh seventeen; and in Kilfenora only six. It is quite evident that the fees arising from the transaction of ecclesiastical business relating to six parishes, or to twenty-six, would not remunerate a qualified ecclesiastical lawyer for acting as Vicar General, nor support a separate Registry. It is very desirable to adopt means to remedy these anomalies. To do this, it is proposed that the twenty-six Diocesan Courts and Registries be reduced to twelve, by uniting into one the several Courts and Registries under each Bishop. Such con-

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  solidation is not required in the diocese of Meath, where there is only one Court and Registry. In only two of the dioceses—Armagh and Dublin — are there suitable buildings belonging to the Registries for the safe preservation of the records, which, by law, are deposited in them. The Registries are kept at the houses of the Registrars, and are subject to many accidents. The Register Office at Kilmore was burnt down some eighty years ago, and many most valuable and interesting documents destroyed. The Registries have been so badly kept that there are few documents older than the Restoration. It is the duty of Government to sanction the concentration of the Registries, because the most important temporal rights of lay patrons and of the Crown itself may be dependent upon the safe keeping of the documents in these Registries. Each institution to a benefice recites upon whose presentation it is made. This record remains in the Diocesan Registry only. These records are evidences of the right of advowson. The destruction of these documents by fire or otherwise would destroy all legal proof of the right of presentation in many cases, and be a cause of great inconvenience in all. Many advowsons have been lost to the laity by irregularities in Bishops' Registries, and some have been lost to Bishops from the same cause. If the present Registers were at once removed from their situations upon the consolidation of the Courts and Registries, they would be entitled to compensation; but for this there is no fund available. It is, therefore, proposed that the present Registrars should remain in office as joint Registrars of the united dioceses, and should continue to transact their accustomed business and to receive their fees as heretofore; but that, on death or resignation of these Registrars, no new appointments should be made, until at length but one Registrar should remain for each united Registry. The working of the measure will be very simple. It may be illustrated from the dioceses of Armagh and Clogher. The Registries of these dioceses will be united into one Registry, to be called the United Registry of Armagh and Clogher. The principal office will be at Armagh. But the business of the diocese of Clogher will be transacted at Monaghan, until the Registry of Clogher becomes vacant, and then the business will be transferred to Armagh. If the Registry of Armagh becomes vacant before that of Clogher, the Registrar of Clogher will be-
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  come Registrar of Armagh, and transact all business there. The papers and records of both dioceses will then be kept at Armagh. Provisions have been made for compelling all future Registrars to discharge their duties in person for transmission of records to the united Registries, and for the punishment of persons stealing or defacing such documents.
  2nd. It is next proposed that the modes of procedure in the Provincial and Diocesan Courts should be simplified and improved, and ecclesiastical fees placed on a more satisfactory basis. To effect this, it is provided that the Archbishops of Armagh and Dublin shall make rules and orders subject to the sanction of the Lord Lieutenant in Council — for the custody and preservation of all records and documents in the United Diocesan Registries; for regulating times, forms, and modes of procedure before the Metropolitan and Diocesan Courts; for making alterations in the form and number of ecclesiastical instruments, and regulating their procedure and practice, especially in reference to fees. It is proposed that an annual report shall be made to Parliament of all rules and orders made during the preceding year, by which all these important regulations will be brought under the control of public opinion.
  3rd. The reduction of the number of Ecclesiastical Courts and Registries necessitates the reduction of the Vicars General. It is proposed that the number of Vicars General be reduced to twelve, leaving one to each Bishop, and that those offices be possessed by persons properly qualified to exercise exclesiastical jurisdiction. By these means the emoluments of those that remain (small at the best) will be increased, and persons duly qualified will be induced to accept the office. Of the twenty-six Vicars General now in Ireland eleven are clergymen. For the Metropolitan Courts it is intended by the proposed Bill that no person shall be considered qualified for such an office except he be one of Her Majesty's sergeants or counsel or a practising barrister of fifteen years' standing; and that no person shall be appointed a Vicar General unless he be a practising barrister of ten years' standing. The working of the measure may be illustrated by its effect on the united dioceses of Down and Connor and Dromore. The Vicar General of Dromore will be removed, but will for his life receive two-thirds of the fees. The Vicar General of

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  Down and Connor will be the Vicar General of Dromore, receiving one-third of the fees, and paying two-thirds to the, retired Vicar General of Dromore. On the death of the Vicar General of Dromore all the fees will be received by the Vicar General of Down and Connor. The final effect of this measure will be, that there will be twelve Courts instead of twenty-six, and they will be presided over; by barristers of ten years' standing; and there will be appellate tribunals at Armagh and Dublin, presided over by a Queen's sergeant or Queen's counsel or barrister of fifteen years' standing. There will be no demand on the Consolidated Fund for compensation or salary of the officers who have to carry out this Bill.
  4th. It is proposed that Appeals in matters of doctrine from the Metropolitan Courts in Ireland should, instead of being made to the Court of Delegates, be heard and determined in the same way as Appeals from the Courts of the English Archbishops—namely, by the Queen in Council. Provisions have been made in the Bill for hearing appeals from the Diocesan to the Provincial Courts. Dilapidation cases are of a temporal more than of an ecclesiastical character, and it is proposed that all such appeals relating to the building or repairing of ecclesiastical residences shall be made to the Court of Appeal in Chancery, under the Chancery Appeal Court Act, 1856. Appeals from the Metropolitan Courts in matrimonial and divorce cases will continue to be made to the Court of Delegates.
  Before I proceed to the provisions in this proposed Bill relating to the final decision in matters of doctrine, it may be expedient to call your Lordships' attention to the state of the law in reference to final Courts of Appeal in Church questions. There are four final Courts of Appeal in the United Church of England and Ireland.

  1. The Judicial Committee of the Privy Council, with the Archbishops of Canterbury and York and the Bishop of London, for hearing appeals under the Church Discipline Act.

  2. The Judicial Committee without any Bishop for hearing appeals on Duplexquerela.

  3. The House of Lords on appeals in Quare impedit, &c., from the Common Law Courts in England and Ireland—the Court of Delegates for appeals from the Archbishop Courts in Ireland.

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  Any given question of doctrine may, under certain circumstances, be brought before any or all of these Courts, and there is no provision against conflicting decisions. Upon the subject, for instance, of baptismal regeneration, we might have in the United Church three wholly irreconcilable decisions by three Final Courts of Appeal. In the case of Mr. Gorham, the Bishop of Exeter's counsel argued that the doctrine of the Church of England, respecting baptism, is identical with that of the Church of Rome. The House of Lords might have decided upon Quare impedit. that the denial of this was a good cause of refusal. Mr. Gorham contended that the baptism of an infant affords no proof of its regeneration, and upon Duplex querela it was decided his doctrine respecting baptismal regeneration was not incompatible with the doctrine of the Church of England. The Courts of Delegates might have decided in favour of the doctrine in the Reformatio Legum, which is inconsistent with both. Many strong objections lie to the Court of Delegates as a Court of Final Appeal in matters of doctrine and discipline. Such Court ought to be uniform and consistent in its decisions, and not subject to be influenced by parties, popular clamour, or intrigue. The Court of Delegates fails in Ireland on these conditions. Such a Court constituted expressly for each case, and then falling to pieces, contains no provision for uniformity of decision, and it can have no experience. All its members are engrossed by other affairs, and in times of religious excitement the selection of Delegates would be open to intrigue, and seldom free from suspicion. The Court of Appeal in Chancery would not be a suitable tribunal to decide in matters of doctrine, because the Lord Chancellor of Ireland may be a Protestant Dissenter. In the Church Temporalities Act he is excluded from being an Ecclesiastical Commissioner except he be a member of the Established Church. It is much more important that a Judge, in matters of doctrine, should belong to the Church, than a person who is merely a manager of its temporal affairs. The Lord Justice of Appeal may be a Roman Catholic or a Dissenter; and it appears to me that these facts exclude the Court of Appeal in Chancery from being a proper final appellate tribunal in matters of doctrine and discipline. It is, therefore, proposed that every appeal from any Metropolitan Court in Ireland in matters concerning the doctrine, discipline, or worship

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  of the-United Church of England and Ireland shall be made to Her Majesty in Council instead of to the Court of Delegates in Ireland, and shall be heard and determined in the same manner as appeals from the Court of an Archbishop in England are heard and determined under the Church Discipline Act, 3 & 4 Vict. c. 86. That such a measure is necessary appears to be acknowledged by all parties. In 1859 an Ecclesiastical Courts and Registries Bill for Ireland, in all essential features similar to this Bill, was brought into this House under the administration of the noble Earl opposite. The Bill passed through your Lordships' House without a division, and it was read a second time in the House of Commons without opposition, and was in Committee when Parliament was dissolved. In 1860 the present Government brought in an Ecclesiastical Courts and Registries Bill for Ireland. Both of these Bills proposed a uniformity of discipline between the Church in England and the Church in Ireland, and both proposed the same final appellate tribunal as does this Bill. The object of the Irish Prelates is to have one and the same Court of Final Appeal for the whole united Church, whatever that Court may be. We only advocate the adoption of the principle laid down both by the late and by the present Government, of dealing with the Church in England and the Church in Ireland as one Church, which is in strict accordance with the spirit of the Act of Union. I therefore recommend this Bill to your Lordships' consideration for many important reasons:—It will facilitate, cheapen, and improve the transaction of ecclesiastical business in Ireland; it will lessen the expenses of the clergy; it will prevent extortion, if there be any, and silence complaints of it if there be none; it will insure more competent Judges for our Ecclesiastical Courts; it will lead to the better preservation of our diocesan records; and it will reduce the Final Courts in the united Church from four to three, which is per se of great practical utility. On these grounds I recommend this Bill to your Lordships.
  Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the whole House on Monday next.

  OYSTER FISHERY (ENGLAND AND WALES) BILL. [H.L.]
  A Bill for the Encouragement, Promotion, and Regulation of the Oyster Fisheries of England
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  and Wales, for increasing the Production of Oysters, and facilitating the Breeding and Rearing thereof—Was presented by The Lord SOMERHILL; and read 1a. (No. 108.)
  House adjourned at a quarter past Seven o'clock, till to-morrow, half past Ten o'clock.