Lords Sitting of 31 July 1873

MINUTES.
PUBLIC BILLS—First Reading—Public Health Act (1872) Amendment* (257); Constabulary Force (Ireland)* (261); Expiring Laws Continuance* (258); Railway Regulations* (259); Royal Naval Artillery Volunteer Force* (260); Sanitary Act (1866) Amendment (Ireland)* (262).
Second Reading—Endowed Schools Act (1869) Amendment(253); Merchant Shipping Acts Amendment (254); Defence Acts Amendment* (255); Conspiracy Law Amendment (256).
Committee—Public Records (Ireland) Act (1867) Amendment* (209), discharged; Penalties (Ireland)* (242); Elementary Education Act (1870) Amendment, &c. (243–265); Langbaurgh Coroners* (248).
Third Reading—Salmon Fisheries, now Salmon Fishery* (249); Metropolitan Tramways Provisional Orders* (229), and passed.

SUPREME COURT OF JUDICATURE BILL.
Commons' Amendments &c. considered.
Commons' Amendment to Lords' Amendments to Commons' Amendments and Commons' consequential Amendments considered (according to Order).
LORD CAIRNSsaid, he was sorry to find that he had been misunderstood in the reference he made the other evening to the appointment of Mr. Mountague Bernard to the Privy Council. He was made to insinuate that Mr. Bernard was appointed to the Judicial Committee of the Privy Council with the object of influencing the decision in the Bennett ease. He had never contemplated any such insinuation. What he did say was that a feeling existed out-of-doors that a Court might be constituted for particular cases, but that he knew that every effort was made to secure the best tribunal in every case.
THE MARQUESS OF RIPONwas glad that the noble and learned Lord had taken the earliest opportunity of removing a misapprehension which his remarks should not have occasioned, and which if allowed to continue might have produced evil consequences. For himself, he had not at all misapprehended the noble and learned Lord. He (the Marquess of Ripon) knew that the greatest possible care was always taken to have the best men sitting on the Judicial Committee. Mr. Bernard was summoned on quite different grounds from those suggested. Knowing the importance of the Bennett case, he (the Lord President) took the unusual course of inviting the attendance of every legal Member of' the Judicial Committee whom age or infirmity had not incapacitated.
THE LORD CHANCELLORwas also glad that the subject was introduced. He had enjoyed the friendship of Mr. Bernard for a great many years, and he knew that although the right hon. Gentleman had never the opportunity of enjoying considerable practice, yet he was not entirely without that kind of experience. In point of general ability and attainment, no man could possibly stand higher, and there were some branches of jurisprudence in which he had few equals and no superior, which might make his presence upon the Judicial Committee of the Privy Council
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not seldom eminently useful. With respect to the particular appeal, to which reference had been made, he had received a letter from Mr. Bernard; who stated that he had never been in the habit of speaking or writing on theological subjects; and that with respect to the particular questions involved in Mr. Bennett's case, he had never, to his knowledge, expressed any opinion before that appeal was heard.
Motion agreed to.
Commons' Amendments agreed to.

ELEMENTARY EDUCATION ACT (1870) AMENDMENT BILL—(No. 243.)
(The Lord President.)

COMMITTEE.
House in Committee (according to Order).
Clauses 1 and 2 agreed to.
Clause 3 (Repeal and substitution of other provisions for 18 & 19 Vict. c. 34 (Denison's Act).
THE MARQUESS OF RIPON moved, in page 2, line 5, to leave out
("a certificated child within the meaning of 'The Agricultural Children Act, 1873,' whose certificate is for the time being in force") and insert ("employed in pursuance of a certificate under 'The Agricultural Children Act, 1873,' and is not attending school.")—(The Lord President.)
Motion agreed to.
Amendment made.
Clause, as amended, agreed to.
Clauses 4 to 9, inclusive, agreed to.
Clause 10 (Amendment of 33 & 34 Vict. c. 75. s. 57. as to loans).
LORD CHELMSFORDmoved to add a proviso, that the consent of the Education Department to loans should be conditional on proof by the school board of the necessity of additional accommodation. This proviso was required to meet cases such as had already occurred where a narrow majority of a school board had attempted to saddle a parish with a loan for new schools where the existing accommodation was both efficient and sufficient. In this case, the Department, while refusing to recommend the application to the Public Works Loan Commissioners, declared its inability to prevent the borrowing of money in the open market, and this proviso would give them the required discretion.
Amendment moved, page 4, line 19, after ("fund") add—
"Provided, that no such consent of the Education Department shall be granted unless proof be given to their satisfaction that the additional school accommodation which it is proposed to provide and the works which it is proposed to execute are necessary in order to supply a sufficient amount of public school accommodation for the district."—(The Lord Chelmsford.)
THE MARQUESS OF RIPONobjected to the proposed proviso as imposing a needless obligation in cases where additional schools were obviously desirable. The distinct recommendation of the Department was essential to a loan by the Public Works Commissioners; in the eases of other loans it did not exercise so close a control, but accepted primâ facie evidence for the scheme, unless there was distinct proof to the contrary. In the case referred to, the school board had made a Return showing the need of further accommodation.
THE MARQUESS OF SALISBURYfeared the facility of borrowing would bring embarrassments on the ratepayers of the future. Both in education and other matters a check was required, and if a school board had evidence satisfactory to themselves, they could communicate it to the Department.
LORD STANLEY OF ALDERLEY and LORD LYTTELTONsupported the Amendment, as a safeguard in doubtful cases.
Amendment agreed to.
The Report of the Amendments to be received To-morrow; and Standing Orders No. 37. and 38. to be considered in order to their being dispensed with; Bill to be printed, as amended. (No. 265.)

ENDOWED SCHOOLS ACT (1869) AMENDMENT BILL—(No. 253.)
(The Lord President.)

SECOND READING.
Order of the Day for the Second Reading, read.
THE MARQUESS OF RIPON, in moving that the Bill be now read the second time, said, that the late introduction of the measure was due to a long inquiry by a Committee in the other House into the working of the principal Act. The principal alterations proposed by the Bill were these. The Endowed Schools Act 1869 was continued to the 31st De-
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cember, 1876: schools having endowments not exceeding £100 per annum are taken from under the operation of the Endowed Schools Acts and placed under the Elementary Education Act 1870. Under the 17th section of the principal Act clergymen were in certain cases ineligible as members of Governing Bodies. This provision had naturally given rise to much dissatisfaction, and it was now provided that where by the original instrument of foundation the holder of any particular office is a member of the Governing Body nothing in the section referred to shall prevent the holder of such office for the time being from being retained as a member. Another provision related to schools excepted from the provisions as to religion; and it is enacted that where by the original foundation of any school it is required that the Governing Body and officers shall be members of some particular denomination—such school shall be excepted from the provisions of the 19th section of the Act. The Bill further amended the Act of 1869 in respect to approval of schemes by the Committee of Council, and in respect of appeals to the Queen in Council; and provided that if, at the expiration of the time for a Petition to Her Majesty in Council against any scheme no such Petition has been presented, Her Majesty may by Order in Council declare her approbation of such scheme without the same being laid before Parliament. Lastly, it was provided that a graduate of any University of the United Kingdom, if otherwise fit, shall be held qualified, where the statutes of any school require the head master to be a graduate of Oxford or Cambridge. The subject had been already considered by several Committees, and had been introduced into the other House on the Report of the Endowed Schools Commissioners, and having been well considered by the other House, he trusted their Lordships would be willing to pass it.
Moved, "That the Bill be now read 2a."—(The Lord President.)
THE MARQUESS OF SALISBURYsaid, that it was impossible that their Lordships could give sufficient consideration to this Bill at this period of the Session, when the Appropriation Bill had been brought in, and the Prorogation would probably take place three or four days

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hence. This amended Bill had been looked forward to by many oppressed interests for two years past. It was hoped that it would either entirely terminate the power of the Endowed Schools Commissioners, or else that Parliament would so restrict and modify those powers that the oppressive consequences which had previously occurred would never be brought into operation again. Certainly it was impossible for their Lordships now seriously to amend the Bill. Without entering into a discussion as to the true construction of the pledges given by the noble Marquess and by Mr. Forster in 1869, it was unquestionable that when the Endowed Schools Act was passed a general impression prevailed in both Houses of Parliament that it was a measure for enabling the Commissioners to deal compulsorily with endowed schools which were really and undoubtedly abused; but the result had shown that it enabled them to deal with all endowed schools whatever, without any restriction arising from the mode in which the trusts had been discharged. This result was attributable to the circumstance that the gentlemen who were selected to discharge the duties of Commissioners, though men of great purity of motive and of great business capacity, were of all people in the world the least fitted to administer a highly and widely discretionary Act, in which it was necessary to carry with them the opinions, feelings, prejudices, and traditions of a large number of people all over the country. The feelings of the Commissioners were hostile to the very idea of endowment, and they treated the notion of what was called the sacredness of trusts with something very like contempt. Knowing the opinions of those gentlemen, Parliament ought not to have sanctioned a Bill which contained their names. He regretted to say that further reflection and further appointments had not altered this peculiar feature of the Commission. Mr. Hobhouse, before leaving England, described the endowments of past ages as "no man's land," which anybody could claim. The noble Lord (Lord Lyttelton) expected posterity to think it a strange superstition that the directions of dying men should be adhered to for all time, unless they were palpably absurd or impossible, and that there should then be the minimum of varia-
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tion; while Mr. Roby deemed it the duty of the State to apply endowments to some other use, if under the circumstances it was more beneficial. Whether those views were correct or not was a question upon which he would not ask their Lordships to enter, but undoubtedly they were deeply opposed to the feelings of the local bodies who had the management and enjoyment of the endowments. Be those local bodies right or wrong, they held that a Founder's will, though made many years ago, ought to be a guide in disposing of the endowment, and that the State had no right to do what it willed with it. The consequence of this diversity of opinion between the butcher and the lamb as to the right of the butcher to use his weapon as he pleased was a great deal of turmoil and dissatisfaction. The noble Lord at the Table (Lord Lyttelton) and his Colleagues did not set to work in a spirit showing the greatest possible amount of conciliation, or with a desire to carry with them the largest possible amount of consent. They seemed rather to have proceeded in a despotic spirit, very much in the same way as the Emperor Nicholas was said to have made his railways—by taking a ruler and drawing, regardless of every other consideration, the shortest line from one point to another. The result was that a large amount of discontent had been called into existence. What he wished their Lordships to understand was that it was not the Act but the mode in which the Act was administered which had caused all the difficulties. No doubt power was given to the Commissioners to do what they pleased with the Governing Bodies, but they were not forced to treat those Bodies as they did. It was true the Governing Bodies had no vested rights; but they were persons of influence in their respective neighbourhoods, great sympathy was excited in their favour, and a great amount of antagonism aroused against the action of the Commissioners. Then, again, how had the Commissioners acted with regard to endowments for elementary education? To use the noble Lord's phrase, the middle classes came in for "the lion's share;" and the elementary schools were thrust out of the enjoyment of those endowments which had been left to them. One of two things was the necessary consequence. If the Elementary Education

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Act of 1870 became a failure, it followed that the poor were ousted out of that of which they ought never to have been deprived; and if the Act proved a success it followed that the ratepayers were saddled with expenses from which, by virtue of those endowments, they had a right to escape. But the greatest amount of opposition had been roused upon the religious question, and the noble Marquess (the Marquess of Ripon) was certainly right in saying that the peculiar interpretation of the 17th clause given by the Law Officers of the Crown, and subsequently by the Privy Council, had given rise to a great deal of discontent. When Parliament inserted that clause, it never dreamt that they were going to exclude rectors and vicars, deans and Bishops from the Governing Body, simply because they were rectors and vicars, deans and Bishops. He never heard any such suggestion made during the passage of the Bill through either House of Parliament, and his belief was that such an idea never entered into the minds even of those who represented the Dissenters. In foundation after foundation it was provided that spiritual persons, Bishops and Archbishops, should have the power of approving or disapproving the statutes made by the Governing Body of the school. That was a clear dedication to the Church of England, because there was no doubt in what direction those who possessed that power would exercise it. But in sweeping away the power of the Ordinary the Endowed Schools Commissioners acted entirely at their own discretion, for they did what they were not required by the Act to do. The 19th clause said nothing about the religious instruction to be given in the majority of the schools. The 17th clause had forbidden any test for the Governing Body, and the 16th had insisted upon a stringent conscience clause. The 19th clause said that where there was any express indication of the intention of the Founders that certain religious doctrines should be taught in the schools, these schools should remain denominational. But it did not say that there was to be no Church of England education in other schools. He did not in the least blame the Commissioners for refusing to impose a test on the Governing Body of the latter schools; but what he did complain of was that there was
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no provision whatever made by them for religious instruction according to the doctrines of the Church of England in schools in which that instruction may have been given for 100, 200, or 300 years. When Parliament abolished tests in the Universities it nevertheless enacted that religious instruction according to the doctrines of the Church of England should be provided for Church of England students. But all that the Commissioners had said was that religious instruction should be given; whether it was to be Church of England, Roman Catholic, Presbyterian, or Buddhist, they did not say. There were many ways of deciding what religious instruction should be given, but the very worst way was to leave it to be fought out by the ratepayers. If the ratepayers were to decide what doctrines were to be preached in the parish church it would be productive of nothing but confusion and dissension; and the result would be pretty much the same if the ratepayers were called upon to say what religious instruction should be given in the schools. He would like for a moment to refer to the special exemption which had been made in favour of the Moravians and Quakers. The Endowed Schools Commissioners had spared the Quaker and Moravian foundations, but had swept away the power of the Archbishops and Bishops. The question to be decided was as to the course to be taken in regard to the present Bill. He could not regard it as satisfactory, because in many points it took the Church of England at an unfair disadvantage. Disestablishment might or might not be wrong, but it could not be fair or just to attempt a bit of disestablishment by means of a Bill like the present. The course which the Endowed Schools Commissioners had taken would please neither of the parties who could be affected by the provisions of the Bill—the contrivance was, perhaps, the worst that could have been adopted; but it was impossible to do properly within three days of the prorogation of Parliament that which would require for its accomplishment long and anxious consideration in both Houses of Parliament. The only course which, under the circumstances, he saw to be open, and one which he believed would not be resisted, would be to provide that the operation of the Bill should be limited to one year

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from the date of its passing. The adoption of such a course would give security that there should be a discussion of all the important points involved in the course of the coming Session. He could not admit that the points to which he had adverted would be settled by the adoption of the course he suggested even for the limited period which would intervene between this and June of next year, and he therefore suggested further that the Amendments which were introduced in the other House of Parliament by Mr. Hardy and others who thought with him should be regarded as sub judice as far as their Lordships were concerned—as matters on which Parliament had not really decided. Some of these Amendments ignored in important respects the expressed intentions of the Founders; and if he proposed the rejection of future schemes of the Commissioners drawn on the principle of these Amendments their Lordships must not think him troublesome or importunate. If the Session could be prolonged for six weeks it would be possible to deal with the questions involved, but as that was out of the question, he hoped the course he suggested would be adopted. It had seriously weighed upon his mind and upon the mind of the noble Duke who was absent (the Duke of Richmond) whether they ought or ought not to move the rejection of the Bill upon the second reading. There were strong reasons in favour of that course, but against it there was the extreme inconvenience of breaking up a piece of administrative machinery which would occupy some time in the repairing; and, he might add, there was the fact that the Dissenters in the House of Commons were exceedingly anxious for that consummation. On the whole, therefore, he thought it would be best to amend the Bill, instead of rejecting it.
LORD LYTTELTONsaid, he must assume that the course suggested by the noble Marquess (the Marquess of Salisbury) would be adopted. The precarious position of the Commission would be inconvenient to some, and he hoped that if the need arose their interests would be duly remembered. He did not speak for himself when saying this, for he had found the Commission by no means a Garden of Eden, and the possibility of being again his own master was to him no matter of lamenta-
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tion. But for the Commission, as such, he thought the limitation very undesirable, because it would curb its freedom of action and prevent it from dealing with any except unimportant or unopposed schemes. Yet he could not but admit that there was some Parliamentary ground for the limitation proposed. It might be not unfairly said that they had reached the dregs of a Parliament which had continued for a long time—he would not say the dregs of the present Government, although since a remarkable event in the early part of the Session the Government, as had been observed in some newspaper, had been like a man who had suffered a paralytic stroke; it might continuo to live, but its movements, till a new Parliament, would be feeble and restricted. There had been, indeed, no delay in the consideration of the Bill. The Committee upon it was appointed at the very commencement of the Session, and no delay had occurred in its proceedings. But in the actual circumstances he did not complain, only he hoped it might be found possible to have no more of these short and inconvenient prolongations. At present there was an obvious and further reason why the noble Marquess had taken the course he had adopted. The noble Marquess and his Friends expected to come into power soon, and it was not unreasonable that they should say—"We shall not allow our political opponents to deal for the next three or four years with these important subjects which have so long been discussed, and many of which still remain undecided. We shall limit the operation of the Commission to one year, and then perhaps we may have our turn, and be able to give effect to some of our own opinions." In a party sense this was not unreasonable. He had no intention of extolling the merits of the Commission, but he hoped that before the question was finally settled, noble Lords would take the trouble carefully to read the evidence which had been given by the Commissioners before the Committee of the House of Commons. That evidence treated fully all the points that had been raised by the noble Marquess, and many more. What he ventured earnestly to impress on their Lordships was that when the time arrived for Parliament again to deal fully with the question as it had done in 1869, it should say what it meant and mean

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what it said. He hoped that Parliament would not intrust the Commissioners with the largest possible powers, and then turn round and call them to account for having acted upon them merely because of some vague reports of the opinions of individual Commissioners—some of them expressed before the Act was passed, or speeches of certain Ministers. The Commissioners were bound by the terms of the Preamble of the Act, by its general scope, spirit, and intention, and not by their own private opinions; and mainly by the 9th and 10th clauses as interpreted by the Preamble. He admitted, as had been done in their Report, that the country was not yet prepared for the Act being carried out with that stringency which the Act itself directed. Under the limitation now proposed they would probably have to proceed with "bated breath;" and indeed pending the more leisurely consideration of the whole subject, and having regard to local feelings and the sentiments of the people, he expected they would concede some points on which they had hitherto insisted. There were two points, and two only, which he considered to be vital, and unless they were maintained he would have nothing to do with the further administration of the Act. One was that special rewards and gratuitous or cheap education should be given solely for merit, properly understood. He differed from the noble Marquess, who had said that the giving of prizes for merit was part of the jargon of the day, and could mean nothing but competitive examination. Prizes might be given as the reward of industry and exertion, and not necessarily of superior talent. The other was that Parliament should not in the slightest degree fetter the Commissioners in dealing with Governing Bodies, especially in regard to the infusion of the popular element, which had in their judgment much to do with securing the prosperity of schools and the continuance of their usefulness. As to the question of religion, his own opinion was that it was better to leave that matter, except with regard to a few schools, to be decided by the Governors of the schools. If Parliament should choose to lay down anything intelligible and specific, for the purpose of defining what schools were Church schools, for the guidance of the Commissioners, he
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believed they would have no objection to act on it, but without some such further definition he did not know what a Church school was. With regard to elementary education, it was so difficult for them to deal with that matter that if Parliament should think fit to take all elementary schools out of the jurisdiction of the Commissioners, to himself it would give much satisfaction. He had been incorrectly supposed to object to endowments generally; for he held that endowments might be made of the greatest value, and he had no wish to discourage them. On the contrary, in the evidence he gave before the Committee of the House of Commons he said he did not believe that a power given to proper tribunals to deal within certain limits and after a certain time with endowments would discourage them.
Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House To-morrow.

MERCHANT SHIPPING ACTS AMENDMENT BILL.—(No. 254).
(The Earl Cowper.)
Order of the Day for the Second reading, read.
EARL COWPER, in moving that the Bill be now read the second time said, that it did not deal with the points that were now under the consideration of the Commission which was sitting to inquire into the subject. This measure was little more than an expansion of the Act of 1871, and was intended to fill up the gaps in that statute. The Bill embraced a number of small details with which it would not be worth while to occupy the attention of the House at the present moment.
Moved, "That the Bill be now read.2a."—(The Earl Cowper.)
LORD CAIRNShoped that by the time the Bill reached its next stage certain of the clauses would be considerably modified.
Motion agreed to; Bill read 2a accordingly and committed to a Committee of the Whole House To-morrow.

CONSPIRACY LAW AMENDMENT BILL.—(No. 256.)
(The Earl of Kimberley.)

SECOND READING.
Order of the Day for the Second Reading, read.
THE EARL OF KIMBERLEY, in moving that the Bill be now read the second time, said, that the Bill, as originally framed, was introduced by Mr. Vernon Harcourt in the other House of Parliament, and applied to conspiracies which were connected with combinations concerning trade. The Government, however, did not deem it desirable to deal with the law of conspiracy on only a single point, and were of opinion that any Bill on the subject should be extended to the law of conspiracy generally. The occasion which gave rise to the consideration of the question was that of the strike of the gas stokers. It would be remembered that several of these persons were sentenced, for conspiracy to commit an offence, to much severer punishment than were others who had actually committed the offence itself. Now, the general effect of the present Bill would be that it would remove altogether from our law punishment for conspiracy to effect any object by a mere breach of contract, which would hereafter be left to be dealt with under the Criminal Law Amendment Act and the Masters and Servant Act; while in such grave eases as a charge of conspiracy for the purpose of extortion, to defeat the course of justice, or to murder, the sentences which might be pronounced were left subject to the existing law. The first clause, therefore, provided that no person should be liable to any greater punishment for a conspiracy to be carried out by a breach of contract than he would be liable to for a breach of the contract itself; and no person would hereafter be liable to punishment for conspiracy by reason only of his being a member of a trade combination. The clause defined "trade combination" as
"a combination between masters or workmen or other persons for regulating or altering the relations between any persons being masters or workmen or the conduct of any master or workman in or in respect of his business or employment or contract of employment or service."
He was aware that the Bill came up to their Lordships' House rather late in the Session, relating as it did to a question of great importance; but it had
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been carefully examined by the Law Officers of the Crown, and they had endeavoured to make it as complete as possible. He hoped, therefore, their Lordships would pass it, for it was not desirable that a penalty should continue to hang over the working classes of this country which Parliament, he believed, never intended should be imposed for the particular offence with which the Bill dealt.
Moved, "That the Bill be now read 2a."—(The Earl of Kimberley.)
LORD CAIRNSsaid, he had not the slightest objection to have the question fully considered how far it was desirable to treat the offence to which the Bill related as a criminal act. The matter was one which was, in his opinion, well worthy the attention of Parliament, and the law on the subject might stand in need of revision, more especially when a breach of contract of the kind under discussion was carried out by what was termed a conspiracy, but which would more properly be called a combination. He must add, however, that the Bill filled him with considerable apprehension. It proposed a great change in the criminal law; it had not been introduced as a Government Bill, but was proposed in the other House by a private Member, and it came before their Lordships at a very late period of the Session. It was desirable to have the opinions and the advice of the learned Judges on the matter before such an alteration of the law was made; but, in the present case, that assistance could not well be obtained, as the Judges were on their circuits. It appeared to him to be a very serious and somewhat dangerous thing at that period of the Session, for the purpose of effecting the object sought by that Bill, to alter the whole law in regard to conspiracy. He would now make no objection to the second reading of the measure, it being understood, however, that he would to-morrow, at its next stage, call their Lordships' attention to the points to which he had briefly referred, and ask their earnest consideration as to what course ought to be taken under the circumstances.
Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House To-morrow.
House adjourned at a quarter before Eight o'clock, till To-morrow half past Ten o'clock.