Lords Sitting of 17 May 1889

PALATINE COURT OF DURHAM BILL [H.L.]
A Bill to amend the practice and proceeding of the Court of Chancery of the county palatine of Durham—Was presented by the Lord Chancellor; read 1a; and to be printed (No. 71.)
HARES PRESERVATION BILL [H.L.]
A Bill to provide a close time for hares in England, Scotland, and Wales—Was presented by the Lord Stanley of Alderley; read 1a; and to be printed. (No. 72.)
A PUBLIC TRUSTEE AND EXECUTOR.

  QUESTION—OBSERVATION.
  THE EARL OF CARNARVONrising "To inquire of the Lord Chancellor whether it is the intention of Her Majesty's Government to introduce any Bill for the appointment of a Public Trustee and Executor," said: My Lords, there is a Bill, I believe, before your Lordships' House at this moment which deals with the question of disabilities in connection with companies; but that is altogether apart from the subject matter of the question which I desire to put to my noble and learned Friend on the Woolsack. I will, if your Lordships will allow me, say but a very few words on the subject. There was some discussion upon it last year in this House, and I think some words passed in another place, and I hope that the answer of my noble and learned Friend to-night may be a favourable one. I will not at any length go into the question of trusteeships, because I think the vast majority of your Lordships who are not Law Lords must be
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  perfectly well aware of the hardships and expense by which a trustee is constantly surrounded. I have felt it myself over and over again, and I have no doubt the majority of those whom I am addressing have had bitter experience of it. It is no answer whatever to the objection that it is in the power of a man to say whether or no he will accept the trusteeship. It constantly happens that for private and domestic reasons that objection is absolutely impossible, and that a man is obliged to accept the trusteeship and with it all the hardships to which I have referred. Besides that, there are certain obvious inconveniences; if the trustee dies it is very difficult sometimes to replace him; if a trustee goes abroad for a very lengthened period, or becomes in some other way incapable of acting, it is expensive and difficult to replace him. All these difficulties would be overcome by the appointment of a Public Trustee. Public Trustees have been appointed in many of our great Colonies with eminent success. I rather think that the first of our Colonies which adopted this practice was New Zealand. I only wish to add one word with regard to expense. I know it is sometimes said that the appointment of a Public Trustee means a considerable expenditure. I cannot myself follow that argument. Of course a certain sum of money is needed to establish such an office, but there would, of course, be a regulated scale of fees for the administration either of a will or a trust, and I should think myself that the public would be well disposed to take advantage of the offer of a Public Trustee, and that before long there would be a very considerable surplus over and above the incidental expenses. But, my Lords, be that as it

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  may, I am perfectly satisfied that this is a reform to which private individuals look forward with very great interest, and which would meet with almost unanimous welcome. I will not weary your Lordships by going into lengthened argument on the subject, but I would ask my noble Friend, at the same time, whether he proposes to conjoin with any measure for the appointment of a Public Trustee one for the appointment of a Public Executor. I apprehend that all the advantages that can be urged in favour the appointment of a Public Trustee can be equally urged in favour of the appointment of a Public Executor; and that the office of a Public Executor would have this additional advantage, that, as all executorial duties are bound to be wound up within a limited period, it would make it even simpler than the appointment of a Public Trustee. I hope my noble and learned Friend will be able to give me a favourable answer to my question, and that he will be able to state that there will be no long delay in the introduction of this measure. I am quite confident that amongst all the valuable Acts which may be attributed to him there will be none that will command greater public gratitude than the granting of this small reform.
  LORD HERSCHELLBefore my noble and learned Friend answers this question, I would like to say one word in support of what the noble Lord opposite (the Earl of Carnarvon) has said. As my noble and learned Friend knows, this is a measure in which I have been long interested and which I have long advocated. I do not believe that it is at all inconsistent with the measure which is now before your Lordships to enable public companies to become trustees. I think there are a great many cases in which, if a Public Trustee existed, those who have to dispose of Trust Funds would sooner put them under the administration of such a company than they would entrust them to a Public Trustee. But there are many cases, on the contrary, where it would be invaluable to the public that there should be a Public Trustee who should give absolute security for the trust money, and that would, on the on the other hand, relieve very many members of the public from the intolerable burden of trusteeship. The truth is—and it is certain that many of your
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  Lordships must have experienced it—it is almost impossible to resist the applications that come to one to act as trustee. The appeal is made—"somebody must act as trustee," and it is in many cases very difficult for anybody to say that he will not do so. According to the decision of the Courts, although an individual trustee can get no profit or advantage or remuneration for anything that he does, nevertheless he is subjected to a far greater burden than people who undertake duties for monetary reward. I say that that is a condition of things which constitutes an intolerable burden, and I am sure it will be a matter of great rejoicing if my noble and learned Friend on the Woolsack announces his intention to introduce a measure to deal with this matter.
  THE LORD CHANCELLORMy Lords, it cannot be expected that I should answer the question of the noble Lord in the affirmative without giving some little explanation. I hope that I may very shortly be able to introduce such a Bill as is desired; but upon the question as to the union of the character of Public Trustee and Executor, I will not undertake to say that it is absolutely certain that that can be done. The two questions are very different. Whether the public should undertake the duties of an executor is one thing—quite different from whether they should undertake the duties of a trustee. But with reference to both questions I can only say that the matter is under the anxious consideration of Her Majesty's Government at the present moment. The noble Earl mentioned one of the qualities of a Public Trustee, which I regard as most valuable—namely, his inflexibility. One of the great difficulties which have arisen is the fact that trustees will be good natured and will do what their cestui que trusts urge them to do contrary to the trust. The Courts of Law can only decide according to the law, and they must, therefore, if the trusts have not been properly carried out decide accordingly. I think a Public Trustee would not be open to any pressure of the kind. He would look to the terms of the trust, and would absolutely refuse to do anything that was not thereby authorized. That I take to be a circumstance of very great value in favour of a public

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  trustee. I can only say that as soon as the decision of the Government is arrived at, I will inform my noble and learned Friend here, and I trust the noble Earl will consider that the Bill satisfies his desires.

COUNTY COUNCILS AND THE BOUNDARIES COMMISSIONERS.

  QUESTION—OBSERVATIONS.
  LORD BELPERin rising to ask Her Majesty's Government whether there was any probability of the Reports from the County Councils on the proposals of the Boundaries Commissioners being received in time to enable the schemes to be laid before Parliament during the present Session, and, if so, what was the latest date at which the Reports should be presented to the Local Government Board, said: My Lords, I need not detain the House more than two minutes in putting the question of which I have given notice, but I think it is a matter of some importance that the various Council Authorities should have an authoritative statement upon this matter. As I understand the proposals of the Boundaries Commissioners have to be submitted to the County Councils for their Report, and such Reports have to be submitted to the Local Government Board, and after the Local Government Board have come to their decision, the scheme will be laid on the Table of the House for a month before being finally adopted by Parliament. I understand that it is the intention of the Government to bring in a Bill with respect to forming District Councils during the present Session of Parliament. It is obvious that if the Bill is passed this Session, and new District Councils are formed in the course of the forthcoming winter, it will be extremely desirable that the new County boundaries should be fixed.
  LORD THRINGBefore the noble Lord answers the question I would like to ask a question immediately arising out of the matter to which the noble Lord has drawn attention. The noble Lord has referred to the local inquiries made by the Local Government Board. It is of the greatest possible importance in many parts of the country that these local inquiries should be made in the evening, because the working classes are extremely interested in the
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  alteration of the areas, and they are unable to attend except in the evening. It is the practice at present for the Local Government Board to make their inquiries in the middle of the day. I trust that it will be deemed expedient to hold these inquiries in the future in the evening so that the views may be ascertained of the people in whose interests the inquiries are really held.
  THE EARL OF POWISMay I ask the noble Lord who represents the Local Government Board what locus standi individual parishes will have to make their representations to the Board as to the decision of the Boundaries Commissioners—I refer to places which are not of a nature to necessitate a local inquiry; and whether the Local Government Board or the Boundaries Commissioners will issue any rules or notices so that every parish may know in what manner the action of the Boundaries Commissioners will affect them?
  LORD BALFOURI have to ask the House to allow me to reply to these questions on behalf of the noble Lord who represents the Local Government Board in this House. With regard to the question which the noble Lord opposite has put upon the Paper, I may explain to the House that there are three kinds of alteration of boundary which are covered by his question. There are the alterations of the boundaries of counties; there are the alterations of the boundaries of unions which overlap the boundaries of counties; and there are the alterations of boundaries of boroughs, which are not what are technically called Urban Sanitary Districts. With regard to the latter class of inquiry, that class of boroughs which are not Urban Sanitary Districts, Provisional Orders confirming reports either have been laid on the Table of one or other of the Houses of Parliament, or will be during the present Session of Parliament. With regard to the alteration for boundaries of counties, several applications for local inquiries have been received by the Local Government Board; but looking to the time which must necessarily elapse, considering the intricate nature of the questions involved and the fact that in all cases a local inquiry will be required and that some time will have to be given for the Local Govern-

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  ment Board to decide upon the merits of the questions at issue. I am afraid it will be impossible to promise that those reports will be received in time to be confirmed by Parliament during the present Session. With regard to the alterations of the boundaries of unions they do not, I understand, require confirmation by Parliament, but are practically under the control of the Local Government Board, and they will he proceeded with, as circumstances allow, with the utmost rapidity possible. I think I have covered the whole of the ground of the question upon the Paper. With regard to the observations of the the noble Lord opposite (Lord Thring), I have to say that I suppose the noble Lord and the House will agree that it is obviously desirable that these inquiries should be held at such times in all cases as are most convenient to the majority of the persons concerned. It has been the practice of the Local Government Board to hold the inquiries under the Allotments Act, which specially are held to concern the working classes in the evening. That is a new departure which was taken with the express purpose of meeting the convenience of the working classes. As regards inquiries such as are alluded to in this question, I have to say that it will not be possible to give any general undertaking that in all cases they will be held in the evening, but if in any particular case it is represented to be more convenient that the inquiry should be held in the evening, if representations are made to the Local Government Board that that course will meet with general approval, the Local Government Board will consider the circumstances, and do what they can to meet the convenience of the majority of the parties concerned. I cannot, however, give a general undertaking that in all cases the inquiries shall be held in the evening, because that might not be suitable to the majority of those concerned. With regard to the question put to me by the noble Lord behind me (the Earl of Powis), I think there are general directions laid down in the Act as to the particular bodies which will have a locus standi in these inquiries. It is desirable to get at the truth, and for that purpose considerable latitude will no doubt be given to those who can show a real interest in the matter. I am not able to say whether definite regulations
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  have been, or can be, laid down; but if the noble Lord will confer with me afterwards, I will endeavour to get for him any instructions which have been given.
  LORD BELPERPerhaps I may be allowed to say one word with regard to the answer of the noble Lord. The point that I wished specially to refer to in my question was with regard to the boundaries of counties where unions overlapped the boundaries of the counties, and where it will be necessary for the Commissioners either to alter the boundaries of the counties, or to alter the boundaries of the union. I would point out to the noble Lord that with respect to those cases, inquiries have been already held, and the result of those inquiries and the reports of the Commissioners have been embodied in a Blue Book presented to your Lordships' House, and those reports have been sent down to the County Councils to report upon. Therefore the position you are in is that you are waiting for the report not of the Local Government Board, but of the County Council. Of course, the Local Government Board will naturally wish to express their opinion as to whether they adopt the report of the County Councils or the report of the Boundaries Commissioners in any case where they differ. In cases where they agree, I daresay the Local Government Board will at once adopt the report, and lay it upon the Table of the House. But my question was particularly directed to the cases in which the two reports differed, and I think it would be well if the noble Lord would give us some information as to the probability of bringing in a Bill this year dealing with the matter.
  LORD BALFOURThe question of the noble Lord distinctly refers to Reports still to come in. I thought I had sufficiently pointed out that after these Reports were received some little time must necessarily elapse—I hope not long, but still some time—for the Local Government Board to make up their minds upon the merits of the Report transmitted to them. I would also point out that, as the noble Lord is probably well aware, the time for introducing Provisional Orders into Parliament this Session has already expired. If there are requests still to be sent in, and to be considered by the Local Government Board, and these inquiries

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  to be held, they can only be received so late in the Session that it will probably be most convenient that any proposals that may be submitted to Parliament should be left for confirmation next Session.
  THE MARQUESS OF RIPONMy Lords, I am the last person to wish to interfere needlessly with the Standing Orders, but I want to point out to the noble Lord the great public inconvenience which will result if the county boundaries are not settled as soon as possible. I have no doubt that many of the County Councils have already got their reports ready and can send them in at once. My own County Council has appointed a Committee, which has made its report, and it will be sent up before long in all probability to the Local Government Board. If we are to wait until a Bill passes through Parliament next Session, the County Councils will be put to a very great degree of unnecessary inconvenience. It is a very special case, and one in which I think in both Houses there would be great readiness to dispense with the Standing Orders in order to avoid a public inconvenience of that kind. I would, therefore, venture to urge earnestly upon the noble Lord that he should, if possible, settle this question this year. If the noble Lord will name the last day upon which he will receive the reports of the County Councils, I am sure all the County Councils will endeavour to meet him.
  LORD BALFOURI am afraid it is not possible for me to give the promise which the noble Marquess asks for. I am informed that at the present time very few reports have actually come in. A great number are expected, and they must be decided upon some general principle which will govern the large majority of them. Upon this great majority of them there will, I believe, be further inquiry. I should be very sorry if a serious inconvenience should arise, and I will give the noble Marquess this undertaking. The strong protest and request which he has made in this House shall be considered by the Local Government Board. I think the House will see that, having been only asked since I came here to make the answer on behalf of the Local Government to the question on which notice was given, I have done all I
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  could to give all the information in my power.

ARCHDEACONRY OF CORNWALL BILL.(No. 12.)
Order of the day for the Second. Reading, read.
THE EARL OF MOUNT-EDGCUMBEThis is the same Bill which last Session passed through your Lordships' House without a word of opposition or objection from either side, and therefore I do not propose to say anything at this moment in moving that the Bill be now read a second time.
Moved that the Bill be now read 2a.
LORD GRIMTHORPEI was not able to be here when the Bill was passed last year, and it was evident that it would not get through the House of Commons then. At any rate, I wish your Lordships to understand more about the matter than has been stated either last year or now. Last year the promoters of this Bill tried a much larger one for taking away the last £3,000 a year of the Common Fund of the Ecclesiastical Commissioners, which is devoted by several Acts of Parliament to the improvement or endowment of poor livings and curacies, and giving it to the Chapter of Truro Cathedral. That was very slightly opposed by the Ecclesiastical Commissioners on Second Reading, and more so by me; and consequently it was referred to a Select Committee, of which the Duke of Richmond was Chairman. It was unanimously rejected there, though no doubt my noble Friend the Lord Steward, and possibly one or two more noble Lords in the Committee, would have voted for it if they had not seen that it was hopeless. After that they carried by a majority of one an abstract vote in favour of robbing Exeter of another £1,000 a year, having already got a fifth canonry, which had been received in 1840, and was transferred to Truro in 1876, and which would otherwise have gone into the Common Fund, solely on the ground that Exeter had not been impoverished by the reduction of rents as most of the other cathedrals have which elected to take land instead of being content with a fixed endowment of then smaller value, which is an odd way of rewarding moderation. However, I need say

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no more on that part of the scheme just now. This is undoubtedly a more moderate one, but it equally inserts the wedge and establishes the principle of endowing this one alone of all the six or seven new cathedrals by robbery. I know it will be defended on the ground that the great Cathedral Act of 1840 authorizes the Ecclesiastical Commissioners to found and endow new archdeaconries with £200 a year. But the simple reason is that this is a very old one. And if the Truro Chapter had been quiet they actually had an archdeacon with the better endowment of £333 a year, or a third of the transferred canonry, and I remember that by their own statutes, printed for the last Commission on Cathedrals, the archdeacon is treated as one of the cathedral dignitaries of Truro, although in many cathedrals they are not. Their next step was to get a clause into their second Act, which nobody else cared to meddle with, reducing the future archdeacons of Cornwall to £200 a year, whereby the Chapter Fund got £133 more; but still no Chapter was founded or authorized until £2,400 a year, altogether, should be provided for it by subscriptions. I should add that in both these Acts there was an express prohibition against taking anything from the Common Fund. In 1887 they got another Act through, also not professing to interfere with anybody, nor even reciting, and much less directly repealing those prohibitions, nor even directly founding a Chapter, but simply saying it shall be a body corporate, and ignoring the restrictions of 1878, and dispensing with a dean, by rolling him into the bishop, and, perhaps, wisely; if there is to be a Chapter at all. That Act having got through by its silence about endowments has now been followed by these four attempts to get one at somebody else's expense, and in the face of all the previous legislation. Another feature of it is that not the severance of archdeaconries from canonries, but their annexation, has been the principle both of legislation and episcopal practice since 1840. The Secretary of the Ecclesiastical Commission has given me a list of 19 absolutely annexed archdeaconries, and I have counted 10 more which are so held, besides a few which are annexed to livings, and, considering that the utili-
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zation of canons has long been a problem referred with very little success to several Royal Commissions, I will add that the annexation of archdeaconries to them seems, at any rate, a better solution than splitting them off to give an archdeacon no more net income than a curate. Another feature in the case is that these successive attempts are made by almost the only new cathedral which started with any endowment at all, either from its neighbours or the Common Fund. A Durham canonry was also reserved for and given to Newcastle, where also one archdeaconry is endowed by annexation to a canonry, and the other to a living. South well had an original endowment of its own which was not augmented but reduced. St. Albans has not a farthing except its old poor rectory endowment; and its archdeaconry endowment was juggled away to Rochester, besides the future value of its Bishop's Palace, though he retains, and will retain, two out of the less than three counties for which that palace was provided. Liverpool and Wakefield have got no more than St. Albans, and in all cases there was an absolute prohibition against even buying a house or securing a site for one out of the Common Fund, however advantageously it might be got. At any rate, before marauding schemes of this kind are sanctioned for this one Cathedral, which has the good fortune to have a Lord Steward for its Lord Lieutenant, the whole subject of the new cathedrals and their genuine wants, but not their luxuries, ought to be investigated. It seems to me a most unlikely way of making the Church, or the Bishops, or the Government, popular, to begin robbing poor livings and curacies to help this new Chapter on to its legs, which was only established by the ingenious device of first aking for no endowment and afterwards coming now, for the fourth time, to try and get some more. Therefore, although I do not expect to succeed here, I move that the Bill be read this day six months.
Amendment moved, to leave out "now" and add at the end of the Motion "this day six months."—(The Lord Grimthorpe.)
THE BISHOP OF LONDONI cannot say that I have been very much impressed by the arguments of the noble

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Lord. I was upon the Select Committee as well as the noble and learned Lord, and my recollection is that so far from its being a case where there was not a single hand held up for the Bill, on the contrary the division in that Committee was 8 upon one side and 7 upon the other.
LORD GRIMTHORPEIf the right rev. Prelate will look at the Report he will see that he is entirely wrong. It was upon another Motion that there was that division of 8 to 7. That was a Resolution not to proceed with the Bill.
THE BISHOP OF LONDONThe Resolution not to proceed with the Bill was no doubt carried unanimously, because the question had been already settled, but the division which really settled the measure was 8 to 7. Really, the decision upon which the Bill depends was when it was proposed to reject the Bill, and have another Bill upon different lines.
LORD GRIMTHORPENo; that was after the rejection of the Bill, on another question.
THE BISHOP OF LONDONBut generally I am not contesting the statements of the noble and learned Lord, but I do very much contest the relevancy of his arguments. In the first place, it is quite true that at the time when these bishoprics were first proposed, Parliament very carefully guarded that the money should come from private sources and should not come from the Ecclesiastical Commissioners, but I submit that that is a good while ago, and that Parliament then had not the experience which it has now of the result of creating these new bishoprics. Everybody who has studied the matter will agree that the result of the creation of these new bishoprics has been most wonderful in increasing the power of the Church in those parts, and even on the monetary question alone more money has been obtained by the creation of these new bishoprics for the purpose of doing the general work of the Church and augmenting the livings than would have been obtained in any other way that could be named. To say that because the policy of Parliament then was to proceed with very great caution, we ought to be bound by such a policy to refrain from even giving the very small help that is asked for by the diocese of Truro now, I confess, does not
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seem to me at all reasonable. We must consider what has happened since. We must consider what has been the effect which these new bishoprics have produced. We must consider the stimulating effect of the Cathedral of Truro upon the diocese of Truro, and upon the whole County of Cornwall, and I believe that if you ask the Cornish clergy which in their judgment would be best, whether this £200 a year should go to the augmentation of small benefices in Cornwall, or should go to the improvement of the services in the Cathedral, the enormous majority would support the proposal that it should go to the Cathedral. I, myself, joined in opposing the Bill which proposed to give £3,000 a year to Truro Chapel and Cathedral. I thought it a demand which went beyond all reason, and I did not think that when you weighed one thing against the other, it was really possible that Truro should make such a claim. But it is quite a different thing to give them the small endowment which is now asked for. Will your Lordships allow me to make one further observation? The fifth Canonry was reserved in 1840 or 1841, with a sort of understanding that possibly a Bishopric of Truro might be founded, and that that Canonry might then pass over to Cornwall. Certainly, I myself was rather surprised when the transfer took place to find that it was saddled with what had been put upon it afterwards—namely, the payment of the Archdeaconry. I always thought that the Cathedral of Truro had a claim to the full Canonry independently of the payment of the Archdeaconry, and I cannot look upon the present proposal as being anything more than the fulfilment of the old understanding according to which the Canonry was reserved for Cornwall.
THE ARCHBISHOP OF CANTERBURYMy Lords, I think the provision that it is proposed to make by this Bill is an entirely fair provision. The case stands thus: The Common Fund of the Ecclesiastical Commissioners has among its other duties the payment of £200 a year to any Archdeaconry which may be created, to which the Commissioners consider that £200 a year should be attached. Such Archdeaconries as have been mentioned as connected with the Cathedrals are in

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reality the endowment of a stall. They take nothing away from the Cathedral, but make adequate provision for the duties of a Residentiary Canon as well as for the duties of the Archdeacon, up to an amount not exceeding £1,000 a year, but this particular Archdeaconry takes £200 a year from the one Canonry which belongs to the Cathedral, and it is to be observed that this £200 a year would actually be paid at the present day by the Ecclesiastical Commissioners for the endowment of an Archdeaconry, except for a special provision which was made long before any Cathedral, or new bishopric, or endowments of that kind were thought of by Parliament. Then, again, it is to be remembered that part of the sums which go to make up the Common Fund of the Ecclesiastical Commissioners, is very largely drawn from Cornwall. There were old estates in Cornwall belonging to the Cathedral which have passed away to the Common Fund. Surely it is not unreasonable that the Ecclesiastical Commissioners should be allowed to pay the £200 a year to the Archdeaconry out of such moneys, in order that this Canonry may belong intact to Truro Cathedral. Truro Cathedral is one which the noble Lord calls luxurious. It is only luxurious in the numbers of its congregations. The endowment of some of the new Cathedrals is undoubtedly large or sufficient, but Truro possesses, from first to last, apart from this one Canonry, £100 a year subject to rates and taxes. That really cannot be considered as a luxurious establishment which strives to keep up, by the voluntary efforts of clergy and laity, what a Cathedral is expected to do. I do think it would be very ungenerous to press a provision made long ago, when there was no such institution in view, to the detriment of an institution, which, as the Bishop of London has said, is doing the best possible work in and for all the parishes of Cornwall.
THE DUKE OF RICHMOND AND GORDONI do not rise for the purpose of making any objection to the Bill now under discussion, but simply to correct my right rev. Friend in his account of the proceedings of the Committee. The Bill which was brought before the Committee was to take £3,500 a year out of the hands of the Ecclesiastical Commissioners. That Bill was unanimously re-
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jected. I have the report here. The matter upon which the division was taken was not upon the merits of the Bill, because the first resolution is "That it is not expedient to proceed further with the Bill." Then the Resolution upon which the division was taken was, "That in the opinion of this Committee any money that may be granted."
On Question whether the word "now" shall stand part of the Motion, resolved in the affirmative.
Bill read 2a accordingly.
House adjourned at a quarter past Five o'clock, to Monday next, a quarter before Eleven o'clock.