Lords Sitting of 14 May 1868

MINUTES.
PUBLIC BILLS—First Reading—Alkali Act Continuance * (99).
Second Reading—Religious, &c. Buildings Sites (77); Duchy of Cornwall Amendment * (94)
Committee—Sea Fisheries (96).
Third Reading—Industrial Schools (Ireland) * (15), and passed.

RELIGIOUS, &c, BUILDINGS (SITES) BILL—(No. 77.)
(The Lord Cranworth.)
RELIGIOUS, &c, BUILDINGS (SITES) BILL—(No. 77.)

  SECOND READING.
  Order of the Day for the Second Reading read.
  LORD CRANWORTH, in moving that the Bill be now read the second time, said, that the object of the measure was to relieve a very meritorious class of Her Majesty's subjects from what they conceived to be a hardship inflicted on them by the Mortmain Act. By that Act languishing and dying persons were restrained from improvident alienations of lands for charitable purposes when on their death-beds and the Act made it necessary that such gifts should be made at least twelve months prior to the death of the donor, and that the deed of gift should be enrolled in the Court of Chancery within six months of its execution. This of course excludes gifts by will. The Act extends even to lands purchased for a full consideration, except that in such cases there is no necessity that the purchase should be made twelve months before the death of the party conveying. But the necessity for enrolment extends to these cases as well as to gifts of land. The Act applied to the smallest quantity of land, and even a small plot of ground, intended for objects beneficial to the entire community, such as for a site
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  for the erection of a meeting house or a mechanics' institute, could not be given without conforming to all the provisions of the Act. Now, in the case of large gifts of land these provisions acted, no doubt, beneficially; but in such cases as those he had referred to the enrolment could not possibly serve any useful purpose. He might, perhaps, remark that a similar Bill to the one now before their Lordships was introduced in the last Session of Parliament, and was sent up to their Lordships with the approbation of the House of Commons; but during its passage through their Lordships' House the noble and learned Lord who then held the Great Seal (Lord Chelmsford) proposed a new mode of registration which the promoters of the Bill regarded as so objectionable that they preferred that the law should remain in its present state. A gentleman interested in the promotion of this measure had handed him a paper, from which it appeared that the enrolment in one case had cost a little over £9, and in another £6. This charge was of small moment in the case of large gifts of land, but was felt in the case of small plots as a grievance. These expenses might not be very heavy, but if they were attended by no advantage why should they be incurred at all? The Bill therefore provided that all grants of land for a full valuable consideration (except by will) to trustees on behalf of any body of persons associated together for religious purposes, or for the promotion of education, arts, literature, science, or charitable purposes, for the purpose of erecting thereon buildings for such purposes, shall be exempt from the provisions of the 9 Geo. 2. c. 36 and 24 Vict. c. 9.
  Moved, "That the Bill be now read 2a."—(Lord Cranworth.)
  LORD ROMILLYsaid, he approved the general principle of the Bill, but he could not agree with his noble and learned Friend as to the uselessness of registration. He intended to move some Amendments in Committee, because he felt convinced that the enrolment complained of by the noble and learned Lord was attended with considerable advantages in the case of small charities. This enrolment, in fact, made it impossible that these charities could be deprived of land which had once been given to them. He had made inquiry upon the subject, and he was informed that the highest expense known to have been incurred for this purpose was £3 7s.

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  The cases alluded to by his noble and learned Friend must have been very peculiar and unusual in their character, and he should be obliged if his noble and learned Friend would favour him with the details, so that he might verify them. At present the fees, though not large, might be reduced by the Lord Chancellor, with the consent of the Treasury. When the Bill got into Committee he proposed to move Amendments which would have the effect of doing away with some of the preliminary steps in the enrolment— steps which were totally unnecessary. The result would be that these small charities need not employ any solicitor; but that everything might be done by their own secretaries at an expense of about 30 s. or 40 s.
  LORD CHELMSFORDsaid, he agreed with his noble and learned Friend that it was most desirable to prevent any secret grant or alienation of land given for religious and charitable purposes, and it appeared to him that the most effectual way to secure that object was by requiring that all those grants should be enrolled. There could be no practical objection to such a course, which need not he attended with inconvenience or any great expense. His noble and learned Friend, on the previous occasions when he moved a measure similar to this one, had invariably made enrolment one of the conditions upon which those gifts should be valid; but he had altered his views since, and had given their Lordships no satisfactory reasons for his change of opinion, or why the principle of enrolment should not be maintained; and his noble and learned Friend (Lord Romilly) had shown that such enrolment could be effected easily and cheaply. He (Lord Chelmsford) should certainly support any Amendment in Committee which would provide for the enrolment of those grants.
  THE LORD CHANCELLORsaid, he did not rise to offer any opposition to the second reading — on the contrary, he thought that the object of the Bill was exceedingly good and laudable. He had ever been inclined to support measures proposing to effect the acquisition of sites for these purposes in the easiest and cheapest manner. But he wished to observe that the opinion of the country upon the subject did not appear to be so general or unanimous as his noble and learned Friend who moved the second reading supposed it to be. He should have thought
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  that the various bodies throughout the country, who were proprietors of chapels built upon small pieces of land, would have been anxious to reduce to a minimum the expense attending the acquisition of sites. But he found that to be by no means the case. He had received a deputation from, a Conference of the Methodist body, representing an enormous number of chapels throughout the country which had been built upon small pieces of land granted for the purpose. Their statement was remarkable. They said it was true that the object of the Mortmain Act originally was to prevent secret conveyances of land for religious and charitable purposes; but where a small piece of land was sold out and out to build a chapel upon it there was no reason to apprehend any mischief from the secrecy of the transaction. The Act had, however, in practice, answered a larger and more important purpose, inasmuch as it had brought about a system of registration of the trusts of small pieces of ground which had proved of the highest possible advantage. The Methodist body stated that they had not a regular stationary body of ministers in their chapels. They were men who went about from place to place. Consequently the deeds of those trusts were generally loosely kept, and some of them had been lost. The result was that all traces of the boundary disappeared, and encroachments were occasionally made which gave rise to disputes as to the exact nature of the trusts, and the obligations which were imposed upon the trustees. The enrolment was, however, attended with this great advantage, that they could procure from the Court of Chancery for a few shillings an office copy of the trust deed, if required. Although that was not the object of the Mortmain Act, yet as it had sprung out of it and proved to be beneficial he (the Lord Chancellor) thought they ought to consider whether it would not be well to secure it by a special enactment. It appeared to him that all practical objects would be secured if those trust deeds were required to be filed, like affidavits, instead of enrolled, and the expense of doing so would be very trifling.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday, the 22 nd instant.

SEA FISHERIES BILL—(No, 96.)
(The Duke of Richmond.)
SEA FISHERIES BILL—(No, 96.)

  COMMITTEE.
  House in Committee (according to Order) (on Re-commitment).
  Clause 5 (Interpretation of Terms).
  THE MARQUESS OF CLANRICARDEsaid, he had understood that it was the intention of the noble Duke to insert a clause exempting Ireland from the operation of the Bill; as, however, his noble Friend had not done so, he (the Marquess of Clanricarde) would move the omission of the word "Ireland" from the 5th clause. In his opinion the Irish oyster fishermen had a right to complain of the the way in which they had been treated in reference to this matter. By the Convention that had been entered into with France, which it was the object of this Bill to carry out, the oyster fisheries on the coasts of England and France were protected during close time; but the Irish oyster beds were left entirely at the mercy of English and French fishermen, who would most assiduously dredge them during the close season for the purpose of supplying their own oyster beds. The result must inevitably be that, in a few years, several hundreds of Irish fishermen would be deprived of a valuable fishery and of a productive source of livelihood.
  THE DUKE OF RICHMONDsaid, that if the noble Marquess had done him the honour of reading the Bill, he would have seen that he had made his Amendment applicable to the wrong clause. The 5th clause had no reference to the oyster fisheries; it was the 27th clause which referred to Ireland; and in that clause it was provided that that part of the Bill should not interfere with the jurisdiction or powers possessed by the Irish Fishery Commissioners with regard to oyster fisheries, and should not apply to Ireland or the seas adjoining. There was also a proviso that nothing in the Bill relating to oyster or mussel fisheries should either interfere with or affect the jurisdiction which Irish Fishery Commissioners had power to exercise over the seas surrounding Ireland, or over the oyster fisheries and, oyster beds in those seas. The 5th clause merely related to what he might term the police regulations of the Bill, and the provisions it contained were such as even an Irish oyster would not object to. The Convention which had been signed between England and France had the effect of reducing the close season
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  by six weeks; so that if the Bill were passed there would be less inducement by six weeks than at present for fishermen to go to the Irish oyster beds. The Bill merely proposed to carry out the Convention.
  VISCOUNT LIFFORDmaintained that the Bill would interfere with the power which, the Irish Fishery Commissioners now possessed and exercised of making by-laws for the regulation of the oyster beds, which existed ton miles out at sea on some parts of the Irish coast.
  THE DUKE OF RICHMONDsaid, the Irish Fishery Commissioners had no more right to make by-laws for the fisheries beyond three miles of the coast, than the noble Lord had to make laws for the regulation of his estate.
  VISCOUNT LIFFORDsaid, that the real tendency of the measure would be to give to Englishmen, Scotchmen, and Dutchmen, facilities for fishing the Irish grounds during the month of June, while the Irish fishermen could only stand and look on, without any power to fish the beds themselves.
  THE EARL OF WICKLOWsaid, that if the Bill passed, the fishermen of Arklow, on the coast of Ireland, would be powerless to protect their oyster beds, which lay-within seven or eight miles of land, and were fished by strangers from a distance during the close season. He had recently received a letter stating that in about a week or ten days thousands of barrels of oysters were taken from those beds.
  LORD STANLEY OF ALDERLEYsaid, that the complaint was, that while the Convention gave the French the right of fishing English banks, subject to the observance of close time, the Irish would lose their right of making a close time through the operation of the Fishery Board. The Irish banks would, therefore, be frequented by English and French fishermen in close time to replace the oysters which had been taken from their own beds, and there would be no protection for the Irish coast. His own opinion was, that the Convention was most unjust and unfair, and that their Lordships should not facilitate the carrying of the Convention into effect, but that the noble Duke should endeavour to make a further Convention in reference to close time.
  THE LORD CHANCELLORsaid, that the question whether a further Convention should be made with France could not then be considered; the only question then

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  was whether the Convention which had been made should be carried into effect. He thought it better that the title to the fisheries off the coast at Arklow should not be discussed; but, at any rate, any jurisdiction that the Irish Fishery Board had exercised was exempted; and any fishery within the proper fishery limits of the coast of Ireland was also exempted.
  LORD STANLEY OF ALDERLEYsaid, that all the banks between England and France beyond the three miles were dealt with by the Convention. Why were not similar banks off the coast of Ireland dealt with?
  THE LORD CHANCELLORsaid, that the House was not asked to legislate territorially as to fishing rights, but only to give effect to an international arrangement entered into to the effect that the Legislature of each country should put some limit on the action of the subjects of those countries. If there should be a similar Convention as to Ireland the House would have to deal with a measure to give effect to it.
  THE MARQUESS OF CLANRICARDE THE MARQUESS OF CLANRICARDE repeated that, as no penalty was imposed in reference to the coast of Ireland, great injury would be done by oysters being taken in breeding time, and he should propose a new clause to remedy this evil.
  EARL GREYsaid, that while he agreed that they could not by legislation affect French rights in places more than three miles from the coast, he thought that the objection of the noble Marquess had not been answered. The Convention secured to France and also to England all that each wanted; but it had neglected to secure what was necessary to protect the Irish fisheries; and the noble Marquess said that Parliament ought not to pass any Act until there should be a Convention to deal with Irish fisheries, and give them the same protection as was given to the French and English fisheries. It seemed reasonable that they should postpone legislation until that was done; because if by passing the Bill they gave France all she wanted it would then be idle to ask her for a fresh Convention.
  THE DUKE OF RICHMONDsaid, that the noble Earl had not clearly apprehended the case. The Convention with France was already signed, but it was necessary to obtain the sanction of Parliament. It seemed to be forgotten that the object of the Commissioners, right or wrong, was to abolish close time altogether, and they had shortened it by six weeks. He had made
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  inquiries, and could not find any case in which any person had been convicted for offending against the by-laws of the Irish Fishery Board at a distance of more than three miles from the shore; and the truth was that they had no power to make such by-laws.
  LORD TAUNTONsaid, they ought not to pass this Bill without further consideration, and that they should place Ireland upon the same footing as was proposed for England and France. They ought, at all events, not to part with the Bill until they had come to an understanding that the matter should be thoroughly investigated, and that any real grievance that might press upon the Irish fisheries should be dealt with.
  THE EARL OF MALMESBURYsaid, there seemed to be some misunderstanding upon this point; the Convention was not in operation, and could not be until it was sanctioned by Parliament. He was inclined to think it desirable that the discussion should be postponed, because it seemed that the matter was not at present well understood. The Convention between England and France was confined to those two countries simply because they possessed the opposite shores of the Channel; but Ireland was in a different geographical position. It seemed to him that the Irish fishermen were labouring under a state of unnecessary panic. The French fishermen, he believed, had not hitherto gone to the Irish beds, which were too distant from them; and he did not see why it should be supposed they would now commence to go there simply because a Convention had been concluded between France and England affecting the Channel fisheries. It would, however, be a serious matter to allow the Convention to be set aside after France had been brought to agree to make undoubted concessions. He might add that he could not agree that the English Parliament had any power to make laws with respect to oyster beds which were more than three miles from the ceast.
  THE EARL OF KIMBERLEYsaid, that an express stipulation was inserted in the Convention that it should not come into operation until an Act of Parliament had been obtained. He might remind the noble Earl of an exactly similar case which happened on the first occasion when he held the Seals of the Foreign Office. At that time a Convention was concluded between England and France, subject to the confirmation of Parliament; and a

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  Bill was consequently introduced, but the Legislature refused to adopt the Bill, and the Convention therefore remained inoperative. As to the jurisdiction which either country might possess over fishing banks at a certain distance from the shore, he supposed there was no doubt that the exclusive jurisdiction of each country extended only to the three mile line. But this treaty, if assented to, would affect the subjects of the Queen and of the Emperor of the French beyond the three mile line. The question was whether it was not advisable, before the Convention was sanctioned, that an arrangement should be made which should include the Irish fisheries also. The grievance of the Irish fishermen was simply this—French fishermen would be able to resort during the close season to the coast of Ireland, and they would certainly do so if prevented by this Convention from fishing in the English Channel. Only the most simple would suggest; in answer to this that after the Act was passed the French Government should be asked to grant fresh favours. How could it be expected France would do so after having secured all she desired?
  THE LORD CHANCELLORbelieved the noble Earl misapprehended the state of the case. Should the Convention not obtain the sanction of Parliament, the arrangement of 1859 would remain in force, and under this close extended six weeks longer than was proposed by the present Convention. The negotiator of the Treaty had induced the French Government to shorten the close time by six weeks; therefore the inducements for French fishermen to resort to the Irish grounds would be rather less than more under the treaty; and it as was acknowledged, French fishermen had not as yet found their way to the coast of Ireland the freer course opened to them by the Convention would most likely induce them to continue fishing nearer home. As to the suggestion that France should be asked to prevent her subjects from fishing on the Wicklow coast he thought it very unlikely she would assent to the proposal when we had nothing to offer in return. In his opinion, the hope of obtaining this other concession, of indifferent value, was not a sufficient ground for postponing the enjoyment of the real benefits which would result from the Convention as at present agreed on. The noble Marquess (the Marquess of Canricarde) had asked why Frenchmen should be allowed to fish off the Wicklow coast when the Irish were
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  prevented from doing so? This would be a very just ground of complaint if it were well-founded, but the Irish Fishery Commissioners had no power to impose such a restriction as that described, and he questioned whether any by-law of the nature alluded to was in existence.
  THE EARL OF MALMESBUEYsaid, that as regarded the Bill of 1852, to which the noble Earl (the Earl of Kimberley) had alluded, the object of which was to sanction the Extradition Treaty, he was under misapprehension. It was not he (the Earl of Malmesbury) who had made the Convention with France in respect to extradition, or who was responsible for the Bill introduced into Parliament in respect of it. The treaty was negotiated by Lord Palmerston, and his successor for two months, Lord Granville, and when the Government of the Earl of Derby came into Office they found the Bill ready in the Foreign Office. Of course the new Government felt themselves bound to carry out the engagement with France entered into by their predecessors, and therefore he (the Earl of Malmesbury), as Foreign Minister, introduced the Bill in their Lordships' House. To his great astonishment, as well as to the astonishment of many noble Lords on the other side the House, the Bill was opposed by the then Lord Chancellor (Lord Campbell), who moved its rejection; and it was thrown out. He (the Earl of Malmesbury) was not responsible either for the treaty or the Bill, and had merely moved the latter as a matter of honour.
  THE MARQUESS OF CLANRICARDE THE MARQUESS OF CLANRICARDE moved to report Progress.
  House resumed; House to be again in Committee (on Re-commitment) on Friday the 22 nd instant.

  ALKALI ACT CONTINUANCE BILL [H.L.]
  A Bill to continue the Operation of the Alkali Act, 1863—Was presented by The Duke of RICHMOND; read 1a. (No. 99.)
  House adjourned at Seven o'clock, till To-morrow, half past Ten o'clock