§ Order of the Day for the consideration of Commons Amendments to Lords Amendments and Commons Reasons for disagreeing to certain of the Lords Amendments, read.
§ Moved, "That the said Amendments and Reasons be now considered."—(The Earl of Kimberley.)
§ *EARL FORTESCUEasked the kind indulgence of the House to enable him to interpose for a few moments between their Lordships and the detailed consideration of the disagreements of the other House with their Lordships' Amendments to the Bill. He had had regret expressed to him from various quarters at the extent of those Amendments. But he wished to remind their Lordships of the very exceptional circumstances under which the Bill passed the other House, and the duty consequently imposed on their Lordships of considering each clause in great detail, and of making such Amendments as commended themselves to their judgment. He wished also to call attention for one moment afterwards to the altered circumstances under which these disagreements came up to them from the other House, and to the consequently different aspect in which he respectfully submitted they should now be regarded and dealt with. The Ministers who spoke in that House during the passage of the Bill spoke as if each clause and each sub-section—whether one of the very few remaining unchanged since the Bill was first printed in March last, whether one of the many largely altered, or whether one of the new ones inserted in Committee—came up to this House with the weighty prestige as a general rule justly attaching to measures of importance coming from the other House. As a consistent Liberal from his youth, and as having had the honour 922 of sitting for many years in the other House as the Representative in succession of two large constituencies—the second being one of the largest in the Kingdom—he would be the last man to deny due weight to any measure passed by the elected Representatives of the people in full Houses after adequate discussion by Members most conversant with the subjects involved. But what were the circumstances under which that Bill came up to their Lordships? For reasons best known to the Government it was proposed at an unusual time, and proceeded with in Houses containing comparatively few Members, jaded and exhausted by an already unusually long Session. It was pressed forward also in the unfortunate absence, from illness and other causes, of many Members whose experience in rural administration would have rendered their counsel on the Bill very valuable. He did not propose to trouble their Lordships with more than a very few of the figures on which his noble kinsman, Lord Harrowby, based his earnest appeal to their House especially to bestow on each clause under these circumstances their fullest consideration, and to make such Amendments as, in their judgment, seemed requisite. The result, he would not say of that appeal, but of their sense of duty, was that they did most diligently apply themselves to the consideration of the Bill, and many Amendments were made in it, including no fewer than nine pages from the Lord President, although hundreds of Amendments had been given notice of in the other House, and a multitude carried by the Government and their supporters. Indeed, he held in his hand a copy of the Bill as it was originally presented to the other House. It was a Bill then of 42 pages, with 71 clauses. Let them contrast that with the Bill of 67 pages and 83 clauses which was sent up for their Lordships' consideration. It was not a matter for surprise that it had been so largely extended, seeing that in the course of its progress through the other House such large questions as the compulsory hiring of land for allotments and the dealing with the London Vestries were brought within its scope. There were 97 Divisions in the course of the passage of the Bill through the other House. They were told' by his noble kinsman 923 that the largest number of Members taking part in any one of them was 378; there were only six others in which more than half of the Members took part; and in more than one-third of the Divisions fewer than 200 Members entered the Lobbies. In addition to that, the majority usually included 20 or 30 Irish Nationalists and 10 or 20 Scotch Gladstonian Members, although the Bill applied neither to Ireland nor to Scotland. In some few of the Divisions the numbers, he had ascertained, rose to between 30 and 40 Irish Nationalists and above 20 Scotch Members. He would ask permission to give their Lordships an illustration of the effect of the presence of Irish Nationalist Members in Divisions on the Bill. He would take as a sample—and he thought it was a very fair one—the largest Division out of the many that took place in connection with Mr. Cobb's Amendment. It was not the Division which comprised the largest number of Irish Nationalists or Scotch Gladstonians; but it was one: of the largest Divisions in Committee, and it was on a subject which excited very warm feelings on both sides. The question divided upon was a proviso of Mr. Hobhouse, with the words of which he need not trouble their Lordships. The supporters of it numbered 126, and the opponents 163, a majority of 37 for the Government. But in the majority were included 33 Irish Nationalists, thus practically reducing the majority to four. Further, if the Scotch votes on each side had been excluded there would have been a majority in favour of the proviso. None of their Lordships, he was sure, complained of the votes of the Scotch Members. They, at any rate, had never professed any hostility to England, they had never encouraged defiance of law and order, and they fairly might, and ought, indeed, to be credited with being as desirous of doing good to England by their votes on legislative proposals for England as their Lordships and the English Members of Parliament were when they voted upon Scotch Bills. But with regard to the Irish Nationalist Members, they should recollect that some of them had openly avowed hatred of England, that some had been conspicuously identified with boycotting—the wickedness of which was so graphically described by the Prime Minister before they became his allies, 924 but never since. Further, some of them had identified themselves with the Plan of Campaign, and almost all of them had shown more or loss sympathy with it, although it was unquestionably illegal, and had been denounced by the Pope as immoral. He would, under these circumstances, ask what moral weight in their Lordships' eyes, or in the eyes of loyal citizens, could the votes of such men as these on a purely English measure carry with them? Their Lordships, indeed, seemed to have felt that so strongly that in many particulars they amended the Bill. But in how different a position did the Bill now come back to their Lordships as compared with its position as described when it was first sent up from the other House ! The disagreements of the other House had many of them been agreed to without a Division; the Divisions that had taken place in regard to other disagreements had comprised more than halt, and in some cases more than two-thirds, of all the Members; and in only one Division had the number of Members taking part been under 300, while when the Bill was in the Commons there were 38 Divisions which comprised less than 200 Members. Under these altered circumstances, he rejoiced at the prospect of their Lordships regarding these disagreements in a very different aspect, and dealing with them—as it seemed to him to be their duty to do—in a very different way. He thanked their Lordships for the kind indulgence ex-tended to him.
§ THE DUKE OF DEVONSHIREI think the House is indebted to the noble Earl who has just sat down for raising a preliminary discussion before we come to consider the Amendments in detail. It does seem to me rather important that before we become immersed in the details of those Amendments we should give some little consideration to the spirit in which we are going to address ourselves with regard to those Amendments as a whole. It appears to me most essential that we should keep in view the distinction between the two functions which this House is called upon to discharge in relation to measures which are sent up to this House by the other House of Parliament. The first and, no doubt, the most important function is to consider and 925 suggest Amendments in detail which, in our opinion, may improve the working of those measures, may avoid any injustice which would he inflicted by them, or may remedy any defect in their policy. That is a function which, I think, is of the highest importance, and which it is our duty to discharge in relation to every measure of importance sent to us. We have, therefore, done no more than our duty in regard to this Bill in suggesting such Amendments as were desirable, from our point of view, in respect both of their justice and of their policy. How far this House should be prepared to insist upon those Amendments when we have ascertained from what has taken place in the other House that they will be regarded as fatal to the existence of the Bill is altogether a different question, and is one which, in my opinion, ought to be decided not so much on the ground of principle as upon the ground of expediency. That brings me to the second and, in my opinion, the more important function of this House in regard to measures sent to it from the other House. This House is at present the only barrier which exists and which stands in the way of the passing of measures that are disapproved of in principle, not only by the majority of your Lordships' House, but also by large minorities, and perhaps even by majorities, in the country, until it has been conclusively ascertained that they are in accordance with the settled or fixed determination and will of the people. How important that function is it is unnecessary for mo to remind those of your Lordships who have in their recollection what took place in this House in regard to the Home Rule Bill in the present Session. The action which your Lordships took in rejecting that Bill, and in insisting that it should not become law until its principle had been conclusively affirmed by the people, has been accepted with approval by a very large portion of the people of the country, and it has scarcely been received even with protest by any of those who are in favour of the principle of that measure. Now, if it is at all likely—and I think it is likely—that your Lordships' House will again be called upon to discharge a similar duty in relation to the Home Rule Bill, and to other Bills which, in your Lordships' opinion, may raise questions 926 of equal importance, it is of the utmost importance that this House should lose nothing of that strength of position which has enabled it hitherto successfully to discharge its duty. It cannot, I think, be doubted that constant collision and friction between the two Houses of Parliament in regard to matters of detail, in regard to measures as to which there is no difference of opinion in regard to principle, is undesirable. It cannot be denied that such constant collision and friction between the two Houses does do something to impair the strength of our position; and it seems to me important, in considering how far your Lordships will insist on such Amendments, that you should bear in mind what may be the effect of such insistence on your power to discharge what, after all, is the most important duty that is committed to this House. I look upon our power to refuse to permit a measure to pass into law, as to the principle of which, in our view, the settled judgment of the country has not been obtained, as an undoubted duty, and I think that we could not shrink from the discharge of that duty in that respect without the loss of honour. I look upon the other question, as to how far we may consider it necessary to insist on Amendments in detail of measures the principle of which we approve, to be a question rather of expediency. Before we approach the consideration of these Amendments in detail I desire to say, speaking only for myself—although I believe that, at the same time, I am expressing the opinion of many of those who sit near me—that that is the spirit in which I desire to discuss these Amendments; and I shall endeavour to bear in mind the considerations I have placed before your Lordships. It is probable that in the course of these discussions questions may be raised upon which the majority of your Lordships may hold strong opinions, but with regard to which we shall be told by Her Majesty's Government that the insistence upon our Amendments will be fatal to the Bill. Speaking for myself, I desire to express my own opinion that there are few, if any, points which can be raised in controversy between us and the other House of Parliament which will involve grave questions of principle such as would render it incumbent upon us to take such a course as would risk the defeat of the Bill. I 927 shall not at this stage enumerate the points, neither will I try to anticipate what the decision of your Lordships will be; but I hope that when the time comes to deal with them we shall bear in mind that our action in respect to these Amendments may have an important effect upon our own power to discharge our duties in reference to other measures of far more importance than this, and far more essential than any duty which we can possibly be called upon to discharge to-night.
§ THE MARQUESS OF SALISBURYI feel it necessary to say a few words after the speech of my noble Friend, because I think that under some interpretation of the speech it may involve a proposition to which I am unable to accede. Whether that will be the practical result or not I cannot tell; but I think that it would be possible to interpret the canons of conduct which the noble Duke has laid down for this House in a manner which would absolutely deprive us of the power of amending any Bill which was sent up to us. If there was a Government which was resolved to dispute the power of amendment in this House; if there was a Government which was not willing to enter into discussion and arrangement, but was resolved beforehand to reject every Amendment that was proposed; if you then said that, because you valued the general principle of the Bill, you would accept the negative answer of that Government, and decline to assist upon any Amendment, whatever importance you might attach to it, your power of amending Bills that come from the House of Commons would be absolutely gone. And that has been the conduct of this Government. When the Bill came before us we were invited, as experts, by the noble Marquess opposite (Lord Ripon) to consider the Bill. We have considered it, and we have suggested many Amendments; and, without exception, every Amendment of the slightest importance has been rejected by the House of Commons. Now, it is impossible to disregard the effect which action of that kind may have—I will not say upon the power of this House, but upon the future relations of the two Houses. I do not see here the noble Lord who is Secretary for Foreign 928 Affairs; but perhaps your Lordships will remember that in our Debates on the Irish Bill the noble Earl strongly recommended us not to reject the Bill on a Second Reading, but to alter it to any extent, and to send the alterations down to the House of Commons. His words were—
You might have allowed the Second Reading to pass sub silentio, or have carried with it any form of protest which your Lordships chose. But when you got into Committee yon might have modelled the Bill to your liking. You might have struck out every clause you disliked. Perhaps you will say that would have been every clause, and then it would have been open to you to substitute what clauses you preferred. You might have had an opportunity, which, of course, you are not going to take, of declaring and defining your policy with regard to this great question of Ireland. Your Bill would then have gone to the House of Commons, where it would have met indeed with a stout resistance. But what would ultimately have come about? What would have happened if you and they had both insisted upon the mass of your Amendments? A Conference would have taken place between the two Houses, which might have led to a fruitful result; and I say that the patriotic course for your Lordships to have taken—unless you have determined never to devolve any local business on Ireland—was to give to this Bill a Second Reading, and to take an opportunity of settling with the other House.Well, we have pursued the patriotic course with respect to this Bill, and we have given the other House an opportunity of settling with us; and they have rejected every proposal that we can make. I fear the effect of that must be that on any future occasion when a question is raised whether it is better to deal with a Bill, to much of which we object, by rejecting it on the Second Reading or by discussing it in Committee, the precedent of the proceeding on this Parish Councils Bill will have a fatal weight. The impression will be strong on your Lordships that if we go into Committee and make Amendments, and they are all rejected, we shall always be liable to the teaching that it is not our business to insist upon Amendments on the structure of the Bill, and we shall learn that if we wish our objections to a dangerous Bill to have effect, we can only efficiently give them that effect by voting against the Second Reading. I regret this result of these proceedings. I do not say for a moment that we could have taken that course with the present Bill; because there is very much in the present Bill that we do wish to pass into law. We 929 desire the main proposals of the Bill to pass into law. We have made considerable sacrifices in order that they should pass into law. We have abandoned our objections to the Poor Law-clauses, and we have abandoned our objections to the anomalies raised by the compound householder; and though we have made these advances, they have not been met; and our undoubted wish to pass the Bill into law is met with obstacles and hindrances. I do not deny that if you are agreed about the principle of a Bill it is unwise to come to a final issue about details. But are they real details? Is it not possible to put a tack upon a Bill? Is it not possible to send a Bill here which is valued, to fasten on it provisions which have no real connection with its principle, and trust to the value which is attached to the principle to force those amendments of details through Parliament? There is something dangerous and deceptive in that distinction between principles and details. There are some details of this Bill which involve large principles—larger principles, perhaps, than the Bill itself. But, while I have thought it necessary to say this in order that what might be an undue interpretation of the words of the noble Duke should not pass as having been accepted without remark, I do not differ from him in what I understand to be the main drift of his speech. That I take to be that in dealing with this Bill as it comes to us, in view of the value which we attach to its principal provisions, we should not care so much for making the Bill a good and workable Bill. Many of our Amendments, the large proportion of them, were directed towards that end. If they are not passed the Bill will be a much worse Bill. It will probably come to inextricable disorder. Amending Bills in future Sessions will be very necessary; and yet so far I entirely concur with the noble Duke that it may be better at the stage we have reached to pass the Bill with all these imperfections on its head, and leave the future to correct the evil which has been done. And, therefore, for the large majority of some 40 Amendments which we have sent down to the House of Commons, and which the House of Commons has rejected, I do not myself protest against 930 the doctrine that, for the sake of passing a Bill which it is very desirable to pass, it may be well that the disagreements should be allowed to stand aside. But, though I am anxious that this Bill should pass, I am not prepared to sacrifice everything for that purpose. There are some points which seem to me to involve more important principles. There are some classes which are threatened, and which will surfer severely if we do not protect them. And there are some points on which I think we ought to insist, because of the importance of the principle which they contain. There are some mistakes which, if made, would be irrevocable and would do the greatest possible amount of harm. I will not go into details; but there are two subjects, at all events, if not more, on which I look in the present position of the Bill with great anxiety. There is its effect upon the occupiers of the land—the farmers of the country. You are introducing a tremendous change in the landed tenure of this country. It is a larger change than has been made for more than 200 years. From this time forth every farmer, everywhere and always, will take his laud and continue to occupy it under the liability that the Parish Council may mark a portion to be taken away from him; and he will know that the decision whether it shall be taken away from him or not will depend upon persons who, as he may think, have no special ground for considering his interest. No Englishman has yet been put in that position. It is a very large change, and it may produce a very serious amount of want of confidence. I say that you are bound to see that the tribunal which is to determine whether land is to be taken or not, is one which is efficient and which can be trusted. I do not think that on such a point as that you could answer the aggrieved interest by the doctrine of the noble Duke. The noble Duke had an idea that we have a right to a certain number of rejections, and that if we have more than a certain number at a certain time we shall awake the indignation of our fellow-countrymen. That seems to be an odd doctrine of legislation. It is something like the case of persons who are occasionally sent out to shoot stags in Scotland. They are allowed to shoot one, two, or three, 931 but they must not indulge themselves in consequence of any opportunities that they may meet. That is something of the kind of limitation, and surely that is not a philosophical or absolutely and perfectly logical mode of considering the duties we have to perform. Supposing that we did sacrifice the farmer, supposing we did pass a wholly inefficient tribunal, and supposing that great injustice was done on that account, would it he an answer to them to tell them, "Oh, we quite feel the way in which your interests were sacrificed; our sympathies for you were extreme. We have rejected two Bills, and we were going to reject two others, and therefore we feel it absolutely necessary to sacrifice you"? I do not think that would be felt to be an adequate discharge of our responsibilities and duties. The other subject which I think our attention should be drawn to is the wholly unexampled and wholly uncalled-for invasion of the charities of this country which is committed by this Bill. When we come to that clause I shall be prepared to go into my meaning more fully, but I am sure that those who are attached to the Church and those who are attached to parochial affairs all through the length and breadth of the land will view with extreme indignation and alarm this sudden expropriation and confiscation of charities without any ground being alleged against their administration. This doctrine, that the fact that a donor has left goods for certain recipients gives to those recipients the right to take them—that is a doctrine which will go much further and will do much greater harm. I will not anticipate the discussion which will arise upon this point. There may be one or two other points of importance; but I should not wish to go further than is absolutely necessary to safeguard interests that may be dangerously and permanently affected by any neglect or carelessness on our part. I quite agree that all Amendments which merely have for their object to make the Bill work better and more smoothly had better be put aside to a more convenient time; and I shall be very glad indeed if we can so arrange that in protecting those interests which it appears to me to be our supreme duty to protect we shall be able to agree so far with the House of Commons as to put this measure on the Statute Book.
THE EARL OF KIMBERLEYWith regard to the Constitutional doctrine enunciated by the noble Duke and the noble Marquess, I certainly do not feel myself quite in a position to decide between two such very high authorities. For the moment I am disposed to view with some satisfaction the doctrines of the noble Duke, because they appear to have led him to a conclusion which gives me very great pleasure, but, at the same time, I should like to notice one remark he made in passing with reference to the Home Rule Bill. He said that Bill was practically dead, because no further interest was felt for it in the country.
§ THE DUKE OF DEVONSHIREI did not say that. I said the action of the House of Lords with regard to the Home Rule Bill met with the approval of a very large number of people in this country, and with scarcely a protest from those in favour of it.
THE EARL OF KIMBERLEYIt-seems to me that my phrase was one which, although short, really expressed the opinion which my noble Friend held on the subject—that a Bill which is not supported by a large number of people in the country must be regarded as practically dead. That is a matter which I think we had much better not discuss now. All I can say on this subject is that, although in this House it may be very unpopular, I dissent from the view of my noble Friend in reference to an issue hereafter to be tried. With regard to the matter immediately before us, I was rather unable to follow the noble Marquess in his arguments, because he spoke as if in some circumstances he regarded this as a dangerous Bill.
§ THE MARQUESS OF SALISBURYI did not use those words with respect to this Bill.
THE EARL OF KIMBERLEYWell, the noble Marquess used words that seemed to imply some considerations of this kind should be kept in view with regard to a Bill of this kind, because he seemed to think that if this House were to acquiesce in the Amendments which have been made by the other House it would to a certain extent lay down a 933 precedent which might be followed in other cases and which might debar this House from mating Amendments at all. The noble Marquess, in illustrating that argument, brought in the Home Rule Bill, and, quoting from my noble Friend the Secretary of State for Foreign Affairs, said that in his speech on the Second Reading of the Home Rule Bill my noble Friend invited this House to consider Amendments. The noble Marquess said further that if this precedent—that this House cannot make Amendments—was to be observed, what becomes of the invitation that my noble Friend made to the House that in such a Bill as the Home Rule Bill your Lord ships should make Amendments and send them to the other House. But, my Lords, I draw this great distinction between the two cases. I am not, of course, one to admit anything with regard to the Home Rule Bill different from the views held by the Government of which I am a Member and which I share. But, taking the noble Marquess's own view, no doubt he and the majority of the Members of this House regard the Home Rule Bill as a dangerous Bill, but he does not regard this as a dangerous Bill. Where, then, is the application of his doctrine? He has suggested that if a Bill comes before this House, and the principle of it is entirely approved, then it is not expedient that we should endanger the Bill by pressing Amendments not vital to the principle. The noble Marquess then transfers that argument to a Bill like the Irish Bill. He says that if a precedent is created such as the noble Duke desires to establish the House would be embarrassed in dealing with it. I entirely join issue with him on that. I say that: if a Bill comes before this House of great importance, and this House regards it as dangerous in its form, then it seems to me that it is quite open to this House to take the course my noble Friend, Lord Resebery, recommended on the Home Rule Bill. My noble Friend said—
You regard this Bill in its present form as a dangerous Bill, and therefore you desire to reject it; but I put before you that rejection is not politic or wise. There is an alternative. You may amend it and send it down to the other House, and you may thereby declare what is the policy of this House with regard to the Bill.That, is what my noble Friend invited the House to do, and I cannot see the 934 analogy between that Bill and this Bill. All the Members of this House admit that this Bill is not a dangerous Bill, and it is one they desire to pass. Then the argument of the noble Duke applies very strongly—namely, Is it for this House for the sake of Amendments not vital to the Bill to endanger the passing of a measure the general principle of which is admitted? In the principle of that argument I strongly share. I do not intend to anticipate the discussion upon the clauses. No doubt we shall hear suggestions made and have proposals put before the House with regard to certain points to which importance is attached, and to which I shall, on behalf of the Government, give such attention as may be necessary at the time. All I will now say is this: What we desire is that a good Bill shall pass. Noble Lords will forgive us if we think that the proposals we make constitute a better Bill than it would be if the Amendments made by this House were inserted. I share entirely the general view of the noble Duke, and I desire, if possible, that the matter shall be so concluded that we shall not for the sake of any subject which is not of vital importance endanger the passing of a measure which we all desire to see carried into law.
§ Motion agreed to; said Amendments and Reasons considered accordingly.
§ Clause 1 (Constitution of parish meetings and establishment of Parish Councils).
§ THE MARQUESS OF SALISBURYWould it not be the more convenient plan that we should first go through the Amendments as to which notice has been given, and then at the end deal with the remainder in one Motion?
THE EARL OF KIMBERLEYI am anxious as far as possible to shorten the business of the House, but the difficulty will be to ascertain what Amendments are assented to by every noble Lord in the House. We can hardly proceed on assumption.
§ THE MARQUESS OF SALISBURYVery well, we will take the Amendments as they appear on the Paper.
THE EARL OF KIMBERLEYThe first Amendment sent up by the Commons is in page 1, line 10, to leave out 935 "2" and insert "5." The Commons disagree with that Amendment, and I have to move "That this House do not insist on its Amendment." I do not think that I need enlarge upon the subject. It was fully discussed here on a previous occasion, and the Government are strongly of opinion that the limit they originally placed in the Bill is the proper limit. I may add that the disagreement with this Amendment was the work of a very large majority in the other House.
§ Moved, "That this House do not insist on the Amendment."—(The Earl of Kimberley.)
§ THE MARQUESS OF SALISBURYI am going to oppose that Motion directly, but I will move an Amendment which will, I think, he consonant with the reasons given by the House of Commons for disagreeing with your Lordships' Amendment. I therefore propose to insert the following words—
Provided that in every parish having a population of more than 200, but less than 500, the parish meeting may pass a resolution that there shall be no Parish Council in that parish, and such resolution until rescinded shall have effect.The reason given by the House of Commons for objecting to your Lordships' Amendment is that it would prevent rural parishes with a population between 200 and 500 from having the same rights as parishes with a population over 500. I do not intend to prevent anyone from having rights, and I am going to propose to give them powers and rights which, under this Bill, they have not got. The Amendment originally moved by my noble Friend Lord Winchilsea provided that where the population was between 200 and 500 there should be no Parish Council. What I now ask your Lordships to say is, that if a parish meeting in those parishes with between 200 and 500 population should decide that Parish Councils are not desirable, then Parish Councils shall not exist in those parishes. This Amendment is entirely an enabling and enfranchising one, and it is one which I think will be very precious to many of these small parishes, because they will naturally shrink from the great expense in which this Bill will probably involve them. These small parishes are poor parishes, and the machinery of Parish Councils, however inexpensive, 936 will be burdensome to them. I believe many of them will very gladly avail themselves of the powers conferred by this Amendment, which does not interfere with the liberty of any person, but, on the contrary, gives rights and liberty to people who under the Bill would not possess them.
THE EARL OF KIMBERLEYI am sorry that I cannot assent to the Amendment, nor can I concur in the arguments by which the noble Marquess supported it. To my mind, when we are enacting a law of this kind, which proposes to give government of this sort, to give a Parish Council to the different rural parishes, the privilege is to give them that Parish Council, and the withholding it is the withholding of a privilege. We ought not to encourage the idea that it is a privilege or an advantage to be exempted from it, because any such idea involves the assumption that the Bill is a bad one. The only question is, therefore, what is the proper line to draw? I agree that some line must be drawn, but the privilege which the noble Marquess proposes to give to parishes under 500 population is the privilege to do without that which the Bill would otherwise give them, and in that we cannot concur.
§ THE EARL OF WINCHILSEAsaid, that as the author of the original Amendment he wished to address a few words to their Lordships. The noble Earl who last spoke appeared to have forgotten that exemptions were contained in the Bill as it originally stood. It seemed to him that the argument of the noble Earl was the reductio ad absurdum of Radical compulsion. The Bill was such a fine Bill that even if the people could not be got to see it, and wished to govern themselves by a parish meeting, they would not be allowed to do so, but would be compelled to have a Parish Council. If the noble Marquess had not brought forward his Amendment he should have invited the House to insist upon its original Amendment. In small parishes of this kind the expense which would be necessarily incurred by the election of a Parish Council would often amount before the Parish Council proceeded to any business to a rate of 2d. in the £1. There were about 4,000 parishes to which the Amendment would apply, and he had 937 calculated that the compulsory rate which the Government wished to place on those parishes would amount to £64,600 a year, or, capitalised, an addition of £2,000,000 for electoral expenses alone upon the already overtaxed ratepayers of this country. That might be a matter of indifference to Her Majesty's Government, but it was an intolerable burden to impose on land which was already so over weighted. This was not merely a matter of principle or of Party politics, for he understood that that Radical Body, the Lancashire County Council, had petitioned the House of Commons in favour of the 500 population limit. But he had a still higher authority, which he hoped the Lord President would consider sufficient. Since the discussion in Committee, in the course of which he called their Lordships' attention to the unjustifiable language used with regard to the clause by the Chancellor of the Duchy of Lancaster—language attributable to the zeal which the light hon. Gentleman no doubt felt in imposing Parish Councils instead of parish meetings on every hamlet in the country—he had had an opportunity of reading a standard book on the American Constitution, and in that work he found that the author conclusively proved that in the case of local communities, with less than 800 electors or 4,000 population, the parish meeting was the best system by which they could possibly be governed. The words used were "the cheapest, the most efficient, and the most energetic." The author of that book was the right hon. Gentleman the Chancellor of the Duchy himself. He hoped that, reinforced by such an authority, when the Amendment went back to the other House, the Government, out of pity for the ratepayers of these small parishes, would see their way to accept it.
§ *THE EARL OF SELBORNEsaid, he could not help expressing a hope that the Amendment would not be pressed by the noble Marquess. During the proceedings of their Lordships in Committee on the Bill there was an absence of mere Party lines in the Divisions which took place; there was much cross voting, a great deal of independence of opinion was expressed, and there were many proofs of the intention of Members of the House to deal with the 938 questions which arose according to their real opinion of the merits at issue. Personally, he did not oppose the Amendments on the last occasion, because he did not then feel that his own judgment, was sufficiently clear, and ho had very great respect for the views of those who advocated raising the limit from 200 to 500. What then made him unwilling to vote for the Amendment was his opinion that the Parish Council, when it could be obtained, was a much better body to manage local affairs and to exercise the powers which the Bill would give than was the parish meeting, consisting, as the latter would, of all the electors of the parish, many of whom certainly would not be persons accustomed to the kind of business which was contemplated by the Bill. Many important powers were proposed to be conferred on these new bodies, and the means of exercising them with judgment and discretion would not be so attainable in a parish meeting as it might be in the case of a Council. It was admitted that they must draw a line somewhere. It was not proposed by the Amendment that there should be any option given, in cases of a population above 500, to decline the Parish Council, though the majority might wish to do so, yet if the Amendment were adopted such option was to be given to a parish with a population of 499. The Amendment would create three categories of parishes—one, with a population above 500, in which they must have a Parish Council; another below 200, in which they need not have a Parish Council; and a third with a population ranging between 200 and 500, in which they might refuse one. For his part, he did not think it was desirable that in a parish with a population of 400 the electors should be at liberty to keep the power in their own hands rather than range themselves in the higher category of parishes, which must have a Parish Council. It should be remembered, that the Bill gave a parish meeting, when there was no Council, many of the powers of a Parish Council, including all powers connected with the Adoptive Acts; and any County Council might, upon their request, give them all or any of the other powers, which the Bill did not give. And they might act through committees, of any number, great or small, subject to the confirmation of the 939 proceedings of those committees by the meeting. If their Lordships were going to reduce as much as possible points of difficulty which might be treated as important elsewhere, he could not help thinking that this was an Amendment which on that principle ought not to be pressed. He did not presume to treat this point as of no importance; but it was not vital, and it would be a very great pity if when they approached other Amendments of greater importance—approached them, as ho hoped, in the spirit suggested by the noble Marquess and noble Duke—they found their difficulties increased by insisting on this particular Amendment.
§ On question? agreed to.
§
Further Amendment proposed,
("Provided that in every parish having a population of more than two hundred, but less than five hundred, the parish meeting may pass a resolution that there shall be no Parish Council in that parish, and such resolution until rescinded shall have effect").—(The Marquess of Salisbury.)
§ On question? their Lordships divided:—Contents 89; Not-Contents 76.
THE EARL OF KIMBERLEYThe next Amendment is on page 2, line 30, and has reference to the disqualifications of Parish Councillors. I move that that Amendment be not insisted on.
§ Moved, "That the House do not insist on the Amendment."—(The Earl of Kimberley.)
§ *THE EARL OF SELBORNEsaid, that although this was an Amendment he moved on Report, he would not oppose the Motion of the Lord President, but he would like to make clear his own position in the matter. It was not very willingly that he took it upon himself to move the Amendment, and the point was one on which he was ready to defer to the greater knowledge and experience of other Members of their Lordships' House. Two reasons, however, mainly actuated him. The first was, that it seemed to be the simplest mode of ensuring that the persons who imposed the rates and spent the money should themselves directly feel the burden. The second reason was—and he mentioned it because he had seen the contrary stated—that by the present law in Municipal Corporations and in Local Boards the same thing was provided for by the qualifications for membership of Town Councils and Local 940 Boards being based on rating above the amount to which the Compound Householder Act could apply either voluntarily or compulsorily. His reason for not insisting on the Amendment was, that by the Division List he found a considerable number of Members of their Lordships' House—with many of whom he was in the habit of acting—differing from his proposal, and in the other House the matter had been treated practically as if it were a vital one. He could only say he was sorry for that, but under these circumstances he did not think the Amendment could be wisely insisted upon. The result of abandoning it would be that the only security against improvident and extravagant expenditure—which might occur not through any bad disposition, but from want of experience in habits of local government and in the management of financial affairs—the only security left would be the power of the landlords to raise their rates. That power he would regret to see very largely or generally used, but they might depend upon it that it would be used by the smaller and poorer landlords in parishes where a disposition might exist to incur larger expenses than the circumstances of the place justified. With these observations he acquiesced in the Motion of the noble Lord.
§ On question? agreed to.
THE EARL OF KIMBERLEYI beg to move that the House do not insist on their Amendment in page 2, line 32, to leave out the words "or within three miles thereof," thus providing that persons elected to the Parish Council must reside in the parish. There are good reasons for thinking that persons living within three miles may have as great interest in the affairs of the parish as other electors.
§ Moved, "That the House do not insist on the Amendment."—(The Earl of Kimberley.)
§ On question? agreed to.
THE EARL OF KIMBERLEYThe next Amendment is the one to page 2, line 35, and is purely consequential. I move that that be not insisted on.
§ Moved, "That the House do not insist on the Amendment."—(The Earl of Kimberley.)
941§ On question? agreed to.
THE EARL OF KIMBERLEYThe next Amendment is on page 3, line 30. Your Lordships are aware that we attached importance to the word "public" being in this clause, and we still think it desirable it should be
a public room vested in the Parish Council or the chairman of the parish meeting," &c.,for which reasons I ask your Lordships not to insist upon your Amendment.
§ Moved, "That this House do not insist on the said Amendment."—(The Earl of Kimberley.)
§ LORD CLINTONsaid, so far as the word "public" was concerned, it was his Amendment, and it was only carried by a small majority; therefore, ho should not ask their Lordships to insist upon it.
§ On question? agreed to.
THE EARL OF KIMBERLEYsaid, the words,
vested in the Parish Council or in the chairman of a parish meeting and the Overseers,were practically consequential on the others, and he therefore moved that the House do not insist on the Lords Amendment.
§ Moved, "That this House do not insist on the said Amendment."—(The Earl of Kimberley.)
§ On question? agreed to.
§
Amendment,
In page 3, line 39, leave out from ("authority") to the first ("any") in page 4, line 6.
THE EARL OF KIMBERLEYThe reason why the Commons disagreed with this Amendment was because it was considered inexpedient to restrict the use of rooms in the manner proposed. This raises the question so much discussed in the House as to whether the rooms should be used for the other purposes which are not now in the Bill, and it seems to me there are good reasons for our persevering in giving these powers to the Parish Council, and I hope your Lordships will think it is not desirable we should insist on the Amendment and restrict in the manner proposed in this House the use of these rooms. I move that this House do not insist on the Amendment.
§ Moved, "That this House do not insist on the said Amendment."—(The Earl of Kiinberley.)
*THE ARCHBISHOP OF CANTERBURYdesired to say a few words on this subject. It was clear that their Lordships did not intend when they refused these further provisions for meetings to drive parish meetings or Parish Councils into public-houses. It had been assorted in plain terms, and insinuated in many rather obscure terms, that that was the intention, or all but the intention, of their Lordships and particularly of his right rev. brethren. Very many of their Lordships, and ho supposed his right rev. brethren without exception, had taken as great a part in everything that could promote temperance as had been taken by any people or party. He had, himself, the intensest sympathy with what he believed to be the view of the working classes that every arrangement ought to be made to enable them not to meet in public-houses. The Church herself had done everything to strengthen that view by efforts of the Church of England Temperance Society, and so on, and it was not likely that she would desire to take any step which would send her parishioners into the public-house. In this connection Clause 4 ought to be read with Clause 60, and he did not think that what was desired could be put more clearly than by combining the two clauses. Clause 60 absolutely forbade the use of public-houses for the purposes of the parish meeting, Parish Council, district meeting, or Board of Guardians, except in cases where no other suitable room could be had in the parish, and, so far from there being any indifference in their Lordships, it was their Lordships who inserted the words that the parish meeting should not be held there, whereas as the clause came from the House, of Commons it was allowed to hold the parish meeting in public-houses. Clause 4 provided that if no other suitable room was to be found, then those meetings should have the free use of the schoolroom. Their Lordships, however, had refused to extend this provision to meetings in regard to allotments or the candidatures of persons seeking election to the Parish or District Council. He did not think the schoolrooms should be surrendered for com- 943 mittee meetings, or for the use of a single officer; smaller rooms would suffice; but the other meetings in question must be large, and he was quite willing—and be spoke on behalf of many—to withdraw any opposition. In thousands of cases there would be no difficulty in using the schoolrooms; and in the larger parishes, where the schoolrooms might be most frequently occupied, there would be other suitable rooms; while in the remaining cases the difficulty would be obviated by a good understanding between the managers of schools and the parishioners. In all the parishes he should recommend the clergy, above all people, to have a good understanding with their parishioners, and he believed they might use this very difficulty to promote such good understanding. He should not, therefore, feel at liberty to oppose this clause any longer, but he intended to help forward as much as he could the view to which he had given expression.
§ LORD HERRIESsaid, that before the noble Lord proposed his Amendment to this clause, he should like to make a few remarks as to the use to which schoolrooms were going to be put by the clause. The principle that had been adopted in putting the schools to this use was, that inasmuch as the managers of these schools had received grants of public money, therefore, the schools had become, to a certain extent, public property. He wished to protest most strongly against that argument. He objected, in the first place, because he thought that principle was capable of a very serious further development. He had a school in his own parish which was supported by himself. He received a grant in consideration of the education which was given to the parishioners in the school, but this grant did not do more than pay about half the salary of the teacher, and be had to provide something like £50 a year to keep this school going. Now he was told that the school which he had kept up at so great a cost had become, to a certain extent, public property. He desired to protest against such a doctrine. If, as might be the ease before very long, a plan was brought before the country for universal School Boards they would be told all their denominational schools were, to a certain extent, public property, and 944 they might be required to hand them over to the School Boards. That would be a very dangerous and quite possible occurrence. The principle, indeed, was capable of still further extension. It might be said that Members of the Government, because they received large grants of public money, should put their houses at the disposal of the Parish Council. But the question which affected him more particularly was that which was connected with the Roman Catholic Church to which he belonged. On the understanding, or sort of compact, to which they came in 1870 they had spent hundreds of thousands upon building schools. These schools had hitherto been used for the purpose of education, but also for religious instruction. Some of their schools had folding doors which, after school hours, were opened, there being on the other side a sanctuary, the schools being turned into chapels, where services were held every day in the week in the morning and frequently at night. If this clause which bad been insisted upon in the other House was carried in its present form any candidate for a Parish or District Council could claim a prior right to make use of that school, and keep out the people who bad been in the habit hitherto of attending Divine services there. Ho considered that would be a great injury to the poorer Irish Catholics of this country, and he was surprised that so many Members of the other House who were Irish Catholics, and supporters of the Government, did not oppose the insertion of this clause. There were still greater objections. Who were to be the candidates for these Parish Councils? It was quite possible that some people who might be inspired with very great antagonism for the Catholic Church might come forward as candidates, and insist upon the room being made over for their use. They might, perhaps, in the furtherance of their candidature, invite people from a distance—renegade priests, runaway nuns, and people of that sort, the stock-in-trade of the Protestant alliance—to come down and speak against the Catholic Church in the schools belonging to that Church, and perhaps in the very room, portion of which had been set apart as a sanctuary. He objected, therefore, most strongly to the insertion of the particular sub-section that any candidate should be allowed to make 945 use of the schools, and he appealed to the Government to pass the clause without it. They did not object to the use of the schoolrooms for the purposes of the Parish Council or the parish meeting, but what they did object to was that the power which would be given to any candidate who might be antagonistic to the Catholic Church, on the plea of being a candidate for the Parish Council, being able to make use of the schoolroom of Catholics for the purpose of attacking their Church.
§ On question? agreed to.
§
Amendment,
Clause 4, page 3, line 40, in Sub-section (c) restored by the Commons after ("meetings") insert ("convened by the chairman of the parish meeting or by the Parish Council or otherwise, as the Local Government Board may by rule prescribe").
§ *THE EARL OF SELBORNEsaid, that in objecting to Sub-sections (c) and (d) of Clause 4, which their Lordships on his Motion struck out, and which related to meetings in connection with questions of allotments and candidature for the District or Parish Council, he certainly did not intend to drive persons to hold meetings in public-houses. It appeared to him that the meetings to discuss questions relating to allotments might well be left under the provisions of the Allotments Acts, or to the parish meetings and the Parish Councils, which were left the free use of the schoolrooms by the Amendment which he proposed, He was unable then and was unable now to see why any other mode of holding meetings concerning allotments than that which could be covered by the powers of the Allotments Acts and the parish meeting and Parish Council was necessary; there would be no question of their being held in public-houses. With regard to the meetings for the candidature of any person, he was opposed to the schoolroom being used for that purpose, as he regarded such meetings as unnecessary; and a personal canvass in such a case would be no laborious thing. As to the committees and officers, they need not provide for a place of meeting for them at all, as they might meet in the house of some one or other of the members or hire a room anywhere; and even if persons of that sort—who would be of the greatest respectability—did find it 946 convenient to hire a room in a public house he did not think any evil would arise from it. These were his reasons for thinking it was not desirable to load their schoolrooms by Acts of Parliament with these extraneous objects, nor did he now accede to the notion that because Parliament, to promote the interests of education, had made grants upon a definite understanding and definite terms connected with education, that, therefore, it acquired the right to do what it pleased with the schoolrooms and to turn them into offices for secular business. He admitted that the power of the purse lay with those who made the grants, and also that, as far as was reasonable, it would be the wish of the managers of such schools, and of all who took an interest in them, to let the rooms be made useful for necessary public purposes; but he did not think it was quite reasonable to load them with things unnecessary, and that in the indefinite manner done by this particular clause. He moved his Amendment on the former occasion because representations were made to him that there was great uneasiness felt upon the subject. Among others, a venerable clergyman in Cornwall of the highest character and judgment, brother of Lord Hobhouse, represented to him that the operation of the clause in the unguarded and unlimited form in which it stood might be highly oppressive, and from teachers be had received similar representations. He (Lord Selborne) had not least in view Church schools or voluntary schools more than Board schools, for the general argument was exactly the same and equally applicable to all. It was stated as an argument in favour of the unlimited encroachment upon these schoolrooms that they were not wanted every hour for teaching purposes. No; but surely when they were not being used for educational purposes the schoolmasters and mistresses who kept them were entitled to a little time for rest or study. He was bound to acknowledge, that the apprehensions which he felt upon these points were looked upon as exaggerated by some of his friends elsewhere, for whose judgment he had the highest regard, and who thought that the number of times for which the schoolrooms would be wanted for the purposes contemplated by the Bill would be very limited. In deference to what he under- 947 stood to be the wishes of many, to whose judgment he deferred, and also acting on a desire to reduce as far as possible the points of difference between their Lordships' House and the other House, he had made up his mind to acquiesce in these sub-sections, with some reasonable safeguard; and knowing as he did the good sense and good feeling of the Lord President, ho could not help thinking that the noble Lord would regard it as a reasonable safeguard that these meetings should be convened either by the parish meeting or the Parish Council—to whom they had already given the use of the rooms—or if that would not meet every desirable case—
Otherwise as the Local Government Board may by rule proscribe.He bogged to move the Amendment, and if it were adopted he should no longer press for the omission of those subsections.
§
Amendment moved,
To add the words ("otherwise as the Local Government Board may by rule prescribe").—(The Earl of Selborne.)
THE EARL OF KIMBERLEYAfter the friendly way in which my noble Friend has spoken on this clause, I feel really sorry that I should have to make any objection to his Amendment. My noble Friend will, perhaps, appreciate it when I tell him what the objection is. As the Bill stands, these meetings can be convened by six parochial electors, and it seems to me it is not at all desirable to deprive the six parochial electors of the power of convening a meeting. It might happen that the chairman of the parish meeting or Parish Council might not be willing to summon a meeting, and it has been always held throughout the preparation of this Bill that there should be liberty left to a certain sufficient body of persons in the parish to insist on a meeting being called without being entirely dependent upon the action of the chairman of the Parish Council. For that reason, I hope my noble Friend will not regard this as an essential matter to press.
§ *THE EARL OF SELBORNEsaid, it was for the very purpose of enabling any cases to be met, which were not sufficiently covered by the words—
The Parish Council or the chairman of the parish meeting,that he added the words— 948Otherwise as the Local Government Board may by rule prescribe.There were several other matters as to which the Local Government Board were to make Rules, and surely there would be no difficulty in their making such a rule as they thought necessary to meet this case. The safeguard would be valuable, It would place in the hands of a definite body the power of calling these meetings together, whereas, as the Bill stood, he could hardly see anything to prevent any single individual calling this meeting, or any candidate. The noble Earl was mistaken in supposing that it was anywhere provided that meetings for candidates, or of committees or officers for financial business, could be called by six parochial electors: and, if they ought to be, the Local Government Board might so provide. He thought the point was one on which he ought to insist.
THE EARL OF KIMBERLEYremarked that, as regarded candidates, it was quite clear that the chairman of the Parish Council might be unwilling to call a meeting of candidates, consequently the noble Lord's proposal would be unworkable.
§ THE EARL OF SELBORNEThe Local Government Board could say how it was to be done.
§ Amendment agreed to.
*THE BISHOP OF LONDONmoved the following Amendment:—
Page 3, line 42, in Sub-section (c), restored by the Commons, after ("or"), insert ("at a reasonable charge").He had, he said, given notice of the Amendment not because he very much hoped he should persuade the House to adopt it, but because he thought it of great importance that it should be very clearly understood how very serious this matter was and was likely to be in the future. Voluntary schools were built, to a very large extent, by private subscriptions. They were trust property held by trustees for a particular purpose. They received grants of money from the Education: Department on the fulfilment of certain conditions; these conditions were very strictly insisted upon, and the grant was not paid unless the conditions were quite fulfilled, and now there was creeping in a claim that without any 949 further grant new conditions should be imposed upon these schools and that they should be called upon to surrender their use for purposes for which they were not originally intended and for uses which would certainly add to the amount of repairs which the buildings would require in the course of time. They were to receive no grants for the fulfilment of these now conditions, and it did seem to him there was really something very like a breach of faith in the matter. It was very hard indeed upon those who were maintaining these schools to be told, after having fulfilled the conditions under which the grants were made, that because they had received the grants the schools were public property, and the public might claim to use them for other purposes than those for which they were built. Of course, there was the strong argument that very often there was no other room suitable for such purposes as the Parish Council might require; but now they were to go further, and not only were the schools to be used for the meetings of the Parish Council, but also for the parish meetings, for parochial inquiries, for discussions relating to allotments, and for the candidature of persons who were desirous of being elected on the District or Parish Council. Of course, it was possible that there might be a considerable number of candidates all wishing to use these rooms in their turn. Further, each candidate might want to have more than one meeting to put his claims before the parish; and all these uses were to be allowed free of charge, thus contributing to the sooner wearing out of the school, and not only so, but in many cases the furniture would have to be very much disturbed and moved about. Again, the schools could also be claimed to be used by any parish officer for the purpose of administering public funds—for paying wages, for example. These were serious additional burdens to impose upon voluntary schools, which in many places were maintained by great exertions, involving considerable self-sacrifice. He hoped their Lordships would agree with him that it ought to be possible to make a reasonable charge for the use of the schools when they were used for purposes which had really no connection with the objects for which they had been erected. When they considered that the Department was to 950 judge in every case what was reasonable they might feel quite certain there would not be any desire to make this charge more than sufficient to meet the corresponding expenses. He was afraid if they allowed the clause to remain as it stood now they should have entered on a descending slope, and should go further and further until serious injury would be done to the supporters of voluntary schools everywhere. He begged leave to move the Amendment.
§
Amendment moved,
Page 3. line 42, in Sub-section (c), restored by the Commons, after ("or"), insert ("at a reasonable charge").—(The Lord Bishop of London.)
THE EARL OF KIMBERLEYMay I just point out on a point of Order that the right rev. Prelate can hardly move his Amendment now, because in line 34, which has been already passed, it is provided that the rooms are to be used free of charge for the purposes mentioned in this section. It seems to me, therefore, that it is not open to the right rev. Prelate to move his Amendment, and I am bound to add I should not be able to accept it.
§ VISCOUNT CROSSdid not quite understand what was meant by the words "free of charge." He should also like to know by whom the expenses of lighting, warming, and preparing the schools for parish purposes would be borne? These meetings were generally held at night; the school forms would have to be altogether re-arranged; and who would have to put them back again, so that the room might be quite ready by 9 o'clock the next day?
THE EARL OF KIMBERLEYThe words are perfectly clear in Sub-section 2—
If by reason of the use of the room for either of the said purposes any expense is incurred by the persons having control over the room, or any damage is done to the room, the expense shall be defrayed or the damage shall be made good out of the poor rate.The matters are completely provided for. I may mention, although we have not yet arrived at the line, that it is my intention to move in line 21, after the word "reimburse" the words "to the parish meeting or Parish Council," so that the person who owns the school shall not be obliged himself to recover the money, but this shall be done by the parish meeting or 951 Council, who will then make it good to the person who owns the school.
§ Amendment negatived.
THE EARL OF KIMBERLEYThe next is an Amendment in which I propose to move to insert after the words restored by the Commons at line 21, the words "to the parish meeting or Parish Council." That is for the purpose of making good the promise I made to this House that the owners of schools should not he obliged to go to a person who might not have any means, but that the Parish Council should be the parties to commence proceedings.
§ *THE EARL OF SELBORNEregarded the noble Lord's proposal as a satisfactory fulfilment of his promise.
§ Amendment agreed to.
THE EARL OF KIMBERLEYsaid, the next Amendment was that at line 27 with regard to notice. He proposed that this House should not insist upon its Amendment here, because in Sub-section (3) of page 6 it would be found there was sufficient provision for reasonable notice, which must be subject to the approval of the Education Department or the Secretary of State for the Home Department. It seemed to the Government that that was a sufficient safeguard against any unreasonable notice being given, for which reason he begged to move that this House do not insist upon its Amendment.
§ Moved, "That this House do not insist on its Amendment."—(The Earl of Kimberley.)
§ On question? agreed to.
§ *THE EARL OF SELBORNEmoved the following Amendment:—
Line 27, in lien of the words inserted by the Lords and disagreed to by the Commons, insert the following words: "(4) Provided that in every case of difference as to the reasonableness of any notice requiring reference to the Education Department, or a Secretary of State, or the Local Government Board, such notice shall not be deemed reasonable unless given in writing, signed by some person claiming to be entitled to give the same, seven clear days at least before the time at which the use of the room is required, stating the purpose for which it is required.He had, he said, deferred so far to what he understood to be the objection to the absolute requirement of seven days' notice as to now propose that it should be only in 952 case of difference as to the reasonableness of any notice requiring reference to the Education Department, or the Secretary of State, or the Local Government Board, and in that case it should not he deemed reasonable unless it were seven days. What was the use of saying there should be a reference to these authorities as to the reasonableness of the notice unless they gave time to have that reference made and an answer returned? and surely seven days was not too long a time for that purpose. He hoped the Amendment which he had put down on this subject might be accepted.
THE EARL OF KIMBERLEYsaid, that under the Bill a meeting might have to be summoned at three days' notice, so that the seven days' notice required by his noble Friend was not in accordance with that. A Circular would be issued by the Department setting forth what was a reasonable notice, which, it was hoped, would meet practically all the cases that might arise.
§ THE EARL OF SELBORNEsaid, on that understanding he would withdraw his Amendment.
§ Amendment (by leave of the House) withdrawn.
§ Lords Amendment not insisted upon.
THE EARL OF KIMBERLEYmoved that their Lordships do not insist on their Amendment to Clause 6, transferring certain powers of Vestry and other authorities to the Parish Council. The clause dealt with
the powers, duties, and liabilities of the Churchwardens of the parish, except so far as they relate to the affairs of the Church or to ecclesiastical charities," &c;and, on the Motion of Lord Selborne, the Lords had added, after the word "charities," the words "or are constituted by any special trust." The Commons disagreed to the Amendment. The Government thought this Amend-mend objectionable, and one which would interfere with the provisions of the Bill, but they were prepared to insert an Amendment which they hoped would practically meet the views entertained by those who wished to insert such a clause as that moved by his noble Friend. The Amendment the Government had to propose was to leave out 953 "ecclesiastical" before the word "charities."
§
Amendment moved,
To leave out the word ("ecclesiastical") before the word ("charities").—(The Earl of Kimberley.)
§ Amendment agreed to.
§ Their Lordships also did not insist on their Amendment with regard to the consent of the parish meeting being required in relation to the acquirement of buildings, and to which the Commons had dissented.
THE EARL OF KIMBERLEYsaid, the next point was with regard to closed churchyards. There was an apprehension that in the Bill as it was framed there would be an undue power of interference on the part of the Parish Authorities with closed churchyards. There need be no such apprehension. The clause did not transfer any closed churchyards to the Parish Council, but simply enabled the Council to make bye-laws with respect to closed churchyards if they were already under the control of the Council. The existing law, therefore, really protected closed churchyards; and except in the case where the consent of everyone concerned was obtained enabling the Parish Council to make these bye-laws, there would be no power of interference by the Parish Council. He hoped, under these circumstances, their Lordships would not insist on their Amendment.
§ *THE EARL OF SELBORNEdid not quite follow his noble Friend. The reason why the exception was introduced was this: The Parish Council would have power to make any open space, such as the section of the Act dealt with, into public walks, gardens, &c, and in towns closed churchyards had been utilised for this purpose. In urban districts there might be good reason for such a thing, but in rural districts there never could be. He regretted that the House of Commons should have seen any objection to the words, on which he should not, however, insist; as it was in a very high degree improbable that the thing would be done.
The Commons proposed Amendment to the Lords Amendment was accordingly agreed to.
THE EARL OF KIMBERLEYThe next point, I believe, is the one upon 954 which the Amendment of the noble Duke of Devonshire will arise, and I think it most convenient, as there may be a good deal of discussion upon this matter, that I should reserve what I have to say until I hear the Amendments which are to be proposed. I shall therefore propose that this House do not insist upon its Amendment.
§ THE DUKE OF DEVONSHIRErose to move the following Amendments:—
In the Amendment on Clause 9, page 9, line 15, in the words omitted by the Lords and restored by the Commons, line 16, leave out (Allotment Act, 1887,") and insert ("Allotments Acts,1887 and 1890") and leave out ("district") and insert ("county").Line 20, leave out ("district") and insert ("county").Line 21, leave out from ("they") to the end of line 31 and insert ("may make an Order enabling the Parish Council or District Council (as the case may be) to purchase and take the land or any part of the land defined in the representation or (in a case to which the Allotments Acts. 1887 and 1890, apply) in the Petition.(4.) The County Council shall cause a copy of any Order so made to be served in the prescribed manner, together with a statement that the Order will become final and have the effect of an Act of Parliament unless within the prescribed period a Memorial shall be presented to the Local Government Hoard praying that the Order shall not become law without further inquiry.The noble Duke said: Although the Amendment immediately before the House is only the first of those of which I have given notice, it may be most convenient that I should take this opportunity of stating as shortly as I can the reasons for the proposal which I have ventured to make, and the nature of that proposal. I must repeat at the outset what I think I said on more than one occasion on the discussions in Committee and on Report, that I still greatly regret the course which Her Majesty's Government have thought it necessary to take upon this subject. They have attempted within the four corners of this Bill to introduce very important Amendments on the Allotments Acts, so far as those Acts are concerned, with the compulsory purchase or hiring of laud. The law as it at present stands is not by any means a simple enactment, and it is one which under the provisions of this Bill will become still more complicated. The Parish Council which wishes to act under these powers will have, in the 955 first place, to refer to this Act, when it becomes an Act, and they will have to refer to an Act which in part adopts and in part amends the existing Allotments Act. When they get to the Allotments Act they will find themselves referred again to the Lands Clauses Consolidation Act, to the Public Health Act, and I do not know whether they will not also be referred to several other Acts. And all the time they are referring to this series of Acts of Parliament they will have to consider and boar in mind how and in what degree any of those Acts are affected by the provisions of the present Bill. I cannot help thinking that the Parish Councils which will have to undertake this task will in a great many cases find themselves puzzled how to set about their work. I still think it would have been much better if the Government had elected to leave the allotment law alone for the present, and be content to give to the Parish Councils power to initiate proceeding under the existing law, and then in another Session, with due deliberation and after experience of the defects which might exist in the Allotments Act, to have introduced a Bill to simplify and, if necessary, amend the law. Her Majesty's Government have not thought fit to take that course. They, I presume, thought it necessary to make an attempt to redeem some of the pledges which either they or their supporters have given upon this subject, and to be able to say that they have done something to facilitate the acquirement, by compulsory powers, of allotments by the agricultural labourers. The result of the course taken is that we have had in Committee of this House, on the Report stage, and we have again, the attempt to deal with the new allotment law, which, as I have said, is a somewhat complicated matter, especially when mixed up with the other provisions of this Bill. My Lords, having this task imposed upon us, I do not think it can be said that this House has met it in any unreasonable spirit. The Amendments which were carried in this House, in Committee on the Bill, would have had the effect of practically leaving the Allotments Act substantially alone, and the Parish Council would have had the power to proceed under the existing law, which I believe would have been the best course to have pursued. We were, however, assured by 956 Members of the Government in this House that the delay and the expense incurred in obtaining a Provisional Order would, in their opinion, be fatal to the efficient working of the present Allotment Acts, and make the provisions of the Acts entirely valueless and of no effect. Upon these representations of Her Majesty's Government, we endeavoured on the Report stage, assisted by my noble Friend Lord Morley, than whom I believe there can be no more competent authority on such matters, to substitute a procedure which, in Lord Morley's opinion and the opinion of others, would have been at least as cheap and as expeditious a procedure as any local inquiry, however conducted, might be. That is the proposal which was sent back by the other House without any attempt to disprove the position which, on the opinion of Lord Morley's authority and other competent authorities, we had taken up, without any examination of our proposal, and without any discussion of Lord Morley's Amendment. We were met by a flat declaration made in a tone of absolute dictation, that in no shape or form should there be any reference to a Parliamentary Committee, either of both Houses or of a Joint Committee. The position appears to be this —that, in the opinion of Her Majesty's Government, an amendment of the allotment law is an essential element of the Parish Councils Bill, and that the elimination of a Parliamentary inquiry in any shape is an essential feature in an amendment of the Allotments Act. In these circumstances, the question which we have to consider is whether we attach so much importance to a power of ultimate appeal to Parliament through the medium of Provisional Order—a power which, as we all know, is very little used—as to give the Government the satisfaction of refusing our Amendments on the allotments clauses, and on that ground abandoning the Bill? It is possible that, in the opinion of Her Majesty's Government, the abandonment of the Bill upon such a ground as that might prove to be a greater advantage in some directions to themselves than any advantage which they could reap from its passing. But, my Lords, in considering this question for myself, I have never felt, and I do not think that I have ever said in this House, that I attach so much importance 957 to a Parliamentary inquiry as is attached by some. What I have endeavoured to contend for in this House, and what I still feel, is that before land should be compulsorily acquired either for allotments or any other purpose there should be a public inquiry with due notice to all the parties concerned before a competent tribunal, and I attach more importance to the provisions which ensure the publicity of the inquiry, with due notice to all parties concerned, than I do to the competence or absolute infallibility of the tribunal which may be selected. The fact that due notice has been given to all the parties concerned, the power afforded to them of stating their case and of the proceedings being publicly reported, appears to me to be a more important consideration in the discussion of this matter than any question affecting the nature of the tribunal which will give the ultimate decision. Although our proposals were not met in a very friendly spirit in the House of Commons, there was, I think, in the discussions which took place something in the nature of an indication of a willingness on the part of Her Majesty's Government to accept, at all events, the County Council as the authority to make the Order instead of the District Council as originally proposed in the Rill; and there was something in the nature of an invitation to the House of Lords to frame a proposal upon this basis which the Government, I understand, would be prepared to consider provided it contained no provisions for the reference of the Order to a Parliamentary Committee. In response to this not very gracious invitation on the part of the Government in the House of Commons I have ventured to place this Amendment on the Paper, and I observe that other noble Lords on the other side of the House have made proposals very similar to mine. I am not prepared to vouch for every technical detail which is necessarily contained in my proposal. I do not pretend to be versed in those technical details, and all I have been able to do is to obtain the best advice which I could in the very limited time at our disposal. I will attempt, in a very few words, to explain the object, and what I think will be the effect, of the proposal. The procedure provided for in the Bill as it came up to this House was an absolutely new one. 958 On the application of the Parish Council the District Council was to proceed for an Order. The District Council was empowered to make inquiry before proceeding with the Order, but neither the form nor the character of the inquiry was prescribed. The Bill proposed to substitute the Local Government Board for functions which are now performed by the County Council and by a Parliamentary Committee under the existing Act. The Local Government Board would have been able to make such inquiry as it thought necessary; but, again, neither the form nor the character of that inquiry was prescribed. It cannot, I think, be maintained that the procedure gave adequate security either for the protection of private rights or due consideration of public interests. Under the existing law it was unnecessary to proscribe the form or character of the inquiry which should be made over to the County Council, because behind the County Council stood the possibility of an appeal to a Parliamentary Committee acting upon settled principles and under settled rules which would have afforded to every party interested ample opportunity of making himself heard. The Bill proposed to sweep away the Parliamentary procedure, and it put nothing whatever in its place. It substituted the Local Government Board both for the County Council and for the Parliamentary Committee, and it imposed upon the Local Government Board no Rules of procedure whatever as to notice or otherwise to the parties concerned. Indeed, we were informed by the noble and learned Lord on the Woolsack, when we were last discussing the subject, it would have been competent for the Local Government Board to make an Order under the Bill without holding any local inquiry.
§ THE LORD CHANCELLOR (Lord HERSCHELL)The only case I suggested was where that was the desire of both parties.
§ THE DUKE OF DEVONSHIREIt was understood that the noble and learned Lord said that in some cases the Local Government Board would not consider it necessary to make local inquiry.
§ THE LORD CHANCELLORI said it would not be considered necessary where the matter had been so discussed, 959 that neither party desired it. I never suggested they were not to hold an inquiry if the parties desired it. The illustration I used was where there was a controversy between the parties, but where, notwithstanding, both parties would be perfectly agreed that a local inquiry would be unnecessary.
§ THE DUKE OF DEVONSHIREAt all events, it will be admitted that the nature of the, inquiry by the Local Government Board was not in any way prescribed for by the Bill, but it was entirely at the discretion of the Local Government Board what should be the nature of the inquiry. What we propose is this: that the Parish Council which wishes to move in the matter of the compulsory acquisition of land for allotments should go to the County Council, which is generally admitted, I believe, on both sides of the House to be not only a more competent authority than the District Council, but an authority in which all the parties have more confidence. We propose that the County Council should not only proceed for the Order, as laid down in the Bill, but that they should make the Order; that the Order, if unopposed, should become final. If it, was opposed we propose to give power of appeal not to Parliament, which we have been told is inadmissible, but to the Local Government Board; and that the decision of the Local Government Board shall be final after a local inquiry. But, at the same time, we provide that that local inquiry should be a real one with due notice to all parties concerned; that it, should be a public inquiry, and should he made as cheap an inquiry as the Local Government Board can undertake to make it. We provide also that Rules for the conduct of inquiries shall be framed by the Local Government Board and laid on the Table of both Houses of Parliament, and thus made subject to approval. These precautions for making inquiry real arc, at the same time, just precautious. It may be objected that this procedure is new, but so also is that proposed by the Bill. If the existing procedure is not to be adhered to, it is absolutely necessary that some form of procedure should be devised. There is some analogy between the procedure which I venture to propose and that which has been conferred upon various Departments of the Government 960 under Provisional Orders. In the last edition of Sir Erskine May's Parliamentary Practice there is a chapter which deals more fully with the law relating to Provisional Orders than in any previous edition. Perhaps the House will allow me to read an extract from that chapter—
Those interests, however, which are protected by the Standing Orders, in the case of a Private Bill, do not suffer; for in this respect the Government Department takes the place of Parliament, and imposes on the promoters of a Provisional Order the observance of Rules and Regulations similar in nature and effect to the Standing Orders relating to notice by advertisement of the objects of the Order, notice to owners and occupiers, deposit of documents, consents, and other matters which arc laid down by the provisions of the enabling Acts or made by the Department. An important feature in the procedure, and peculiar to the Provisional Order, is the provision in these enabling Acts for a previous inquiry into the merits of the case submitted to the Government Department for approval. This inquiry is obligatory on some of the Departments, if it be deemed advisable to proceed with the case; while with others the inquiry is only held if it be thought expedient. The inquiry is usually public, and held in the locality affected by the proposed Order, after due notice, by an officer of the Department, or other properly qualified person, who makes a Report on the case to the Department.One of the Acts which enables the Department to make a Provisional Order is the Public Health Act, 1875. Under that Act an Urban Sanitary Authority may take land compulsorily for sewage purposes, &c, on obtaining a Provisional Order from the Local Government Board. Section 297 of that Act enacts that—Before making any such Provisional Order the Local Government Board shall consider any objections which may be made thereto by any persons affected thereby, and, in cases where the subject-matter is one to which a local inquiry is applicable, shall cause to be made a local inquiry, of which public notice shall be given in matter aforesaid, and at which all persons interested shall be permitted to attend and make objections.That procedure appears to be of an analogous character to the one we have now under consideration. I think these extracts show that, even with a Parliamentary inquiry in reserve, it has been thought necessary by Parliament to lay down more or less stringent provisions as to the nature and character of the preliminary inquiry for the protection of private rights and public interests. That is a matter which is comparatively unimportant so long as the ultimate resort to a Parliamentary tribunal is preserved, but 961 it becomes indispensable now we are told that that safeguard is to be removed. Another reason why my proposal should commend itself to the Government is this: It appears to me that the substitution of the County Council for the Local Government Board, with only an appeal to the Local Government Board in case of opposition, will save that Department an enormous amount of unnecessary work. By the proposal in the Bill it would have been necessary for the Local Government Board in all cases, whether the Order was opposed or not, to satisfy itself by some sort of investigation that the proposal was a proper one to be sanctioned. The Local Government Board will now be relieved entirely of that responsibility, which will rest with the County Council. In ordinary cases the Local Government Board would have nothing to do, except to see that some certain necessary formalities were complied with, and it would only be in the comparatively rare cases of Opposed Orders that the Local Government Board would be called upon to act. My Lords, I have only to add that which I think necessarily follows from what I have said—that, although the proposal upon this clause applies only to cases of compulsory purchase, I propose also to apply exactly the same procedure to the case of compulsory hiring of land. It is almost impossible to understand why by the original proposal in the Bill the County Council should have been ousted from any control over the Parish Council in the matter of the compulsory hiring of land, and placed solely in those of the Local Government Board. It seems to me that the compulsory purchase of land is a less serious undertaking than the making use of compulsory powers for the hiring of land. In explaining the object with which I made this proposal I have not entered into any details. I am not at all anxious that this proposal should be adopted in preference to any other which may better meet the views of your Lordships; but I thought it right to submit an Amendment which would raise the issue at the earliest part of the Bill dealing with this subject.
§ THE EARL OF WINCHILSEAAs I understand the noble Earl opposite (the Earl of Kimberley), he intends to 962 reserve his remarks until all the Amendments have been moved?
§ THE EARL OF WINCHILSEAI am very sorry to interfere with the very natural desire of the noble Earl opposite, and I shall make my remarks extremely short after the exhaustive statements of the noble Duke. But as my Amendment covers very much the same ground as the noble Duke's, it is necessary that I should say a few words upon the whole case, and how the matter stands historically. When the Bill originally came to us there was the Parish Council, the District Council, and the Local Government Board. An Amendment proposed by myself was accepted in part by your Lordships, but not as to the remaining part. I proposed to your Lordships to substitute "County Council" for "District Council," but I was unable to persuade your Lordships to keep to the Local Government Board, noble Lords thinking if was necessary to have to appeal to Parliament. On the Report stage I ventured to urge the proposal very strongly in view of the probability that the Government would accept the County Councils and that noble Lords on this side would accept the Local Government Board. It appeared to me to be a compromise which would have settled the case very fairly. The three Amendments now on the Paper cover very much the same ground. They provide for the County Council and an appeal to the Local Government Board. So far as the details of these Amendments go, I do not profess in the short time at my disposal entirely to have mastered the details of the noble Duke's Amendment: nor probably has he mastered those which are proposed from this side of the House. The drafting of the noble Duke's Amendment makes it a pleasure to read it when compared with the drafting of this Bill. The Amendment which, I think, ought to commend itself to your Lordships in this matter is the one which the Government are most likely to accept. From one point of view I think it probable that that may be my own, because when the noble Earl the Chairman of Committees moved his Amendment, which was accepted by the House and consequently cut out my Amendment, there were some 963 remarks made by the noble Earl the Leader of the House which led me to suppose that he might have reasonably considered my Amendment if it had not been otherwise disposed of. The Commons Reasons for differing from this proposal appear to me to rest upon a mistaken foundation. We are told they disagree because the District Councils are the authorities to which applications are made under the existing law with regard to allotments. But when the Allotments Act of 1887 was passed there was no such thing as the County Council in existence. Therefore, it was absolutely necessary to look round for some Local Authority to which these powers had to be given. Therefore, the Local Sanitary Authority was chosen not because it was better than the County Council, but because the County Council was not then in existence. There is another reason why I think the County Council is better than the Sanitary Authority; the District Council will practically be synonymous with the Poor Law Authority. At an early date Parliament must dissever allotments from everything connected with the Poor Law. Then the County Council have one or two important qualifications which the District Council do not possess. If the District Council is to remain as the court of first instance it is very improbable that any landowner who is forced to take his case before that limited court will be satisfied with its decision. Therefore, you will always have appeals from that body to the Local Government Board. If the case is, however, put fairly before the County Council, in nine cases out of ten the landowners will be satisfied. Your Lordships will, I trust, insist upon whichever of those Amendments should prove most acceptable to you. There is one point I do not like in Lord Onslow's Amendment, and that is the alternative appeal he proposes to give to the Local Government Board or the Board of Agriculture. There are obvious difficulties and drawbacks to that, because the person who selects the one court instead of the other would constantly feel that if he had taken the other tribunal possibly a different verdict would have been arrived at. I hope Parliament will decide what tribunal is to settle these appeals. This matter is of the greatest possible public importance. The Government 964 have shown a disposition to meet us in this matter such as they have not shown on any other clause, and I trust we may really obtain a workable method in this matter.
*THE EARL OF ONSLOWThe noble Earl who spoke last has referred to an Amendment I have on the Paper. The objects I seek to obtain, as he has said, are very nearly those of the noble Duke opposite. I, for one, entirely agree that the drafting of the Amendment proposed by the noble Duke is a pleasure to read, and I shall not ask your Lordships to prefer my Amendment to that of the Duke of Devonshire. I am glad to find that there are some Amendments to this Bill which he himself thinks should be introduced. Although we have not been fortunate always to secure the support of the noble Duke we, at all events, shall be prepared to support the noble Duke on the Amendment he has just proposed. But there are two points to which I should like to call attention. The object of the Amendment, I imagine, is to limit the expense to the narrowest possible limits, but, contrary to the proposal made by the Earl of Motley, the noble Duke proposes that in certain cases the Inspector of the Local Government Board shall be permitted to hear counsel. The real expense in all these inquiries is, I think, the employment of counsel at very high fees, and I hope the noble Duke will be able to see his way to eliminate that portion of his Amendment. If he were to confine himself to giving power to the Local Government Board to hear expert witnesses without power to have counsel, the object of cheapening the procedure would be better obtained. It would be better, in my opinion, that the appeal should be either to the Local Government Board or to the Board of Agriculture. The farmers and agriculturists of this country have more confidence in the Board of Agriculture as a judge in agricultural matters and as to the value of land than they have in any other Public Body. The Board of Agriculture and the gentleman who presides over it have earned the gratitude of the agricultural community by the way they have attempted to stamp out cattle disease in this country. I think the farmers would rather trust their affairs to that Board than to the Local Government Board. At the same time, I do not pro- 965 pose to press this alteration on the House. Whether the Government accept the Amendment of the noble Duke or not, I am extremely pleased that it is proposed from the other side of the House, and I hope your Lordships will send this Amendment down to the other House by a very large majority.
THE EARL OF KIMBERLEYI am extremely glad to see that section of the noble Duke's Amendment in which he proposes to enact that the Orders should be subject to confirmation by the Local Government Board, but should not require confirmation by Parliament. The Government view that proposal with great satisfaction, because the principle for which we have all along contended is that these cases should not be referred to Parliament on account of the expense which would thereby be entailed. So far, then, I view the Amendment with the greatest approval. With regard to the other provisions in it, I will direct my observations to that which is the most important part of the Amendment—namely, purchase, because hiring arises on (he next clause. I do not know that it would be out, of place if I briefly explained the precise position of the matter now, and as regards our Bill. At the present time the position with regard to allotments is this: A certain number of the inhabitants of a parish may apply to the Rural Sanitary Authority, for which hereafter the District Council will be substituted, for allotments. If the Rural Sanitary Authority, being unable to obtain the allotments by agreement, think that a Provisional Order should be made and compulsion exercised they may consent to the compulsory proceeding. But after their consent is obtained it is necessary under the present law that the matter should go before the County Council, and the County Council can make a Provisional Order which the Local Government Board brings before Parliament. That is the present law. But our Bill, before it was amended, proposed that the Parish Council should apply in the first place to the District Council, and if that body thought the matter should be proceeded with, and if there was an appeal, then the matter would come to the Local Government Board. But, supposing the District Council would not proceed in the matter, 966 then it would go to the County Council, and the County Council would have the same powers which it now has under the Allotments Act. With the natural affection which parents ought to feel for their children the Government think their own proposal the better one, and would facilitate the acquiring of allotments. That has been the opinion of the Government, and I certainly see no reason to change it. At the same time, I am quite free to admit that the County Council might work the Bill with reasonable effect. The position of the Government is that they prefer the Bill as it stood, and we must preserve that opinion. At the same time, we quite recognise that there exists in the Amendment the elements of another arrangement which might be workable, and therefore I will not take the course of dividing the House. I would, however, reserve to the Government full discretion in dealing with the Amendment when it goes down to another place.
§ THE MARQUESS OF SALISBURYI am very much in the position of the noble Earl, and I still retain my opinion in favour of the appeal to Parliament as that to which all subjects of the Queen have a right. Still, the fact that this plan of referring it to the County Council and afterwards to the Local Government Board does undoubtedly unite it considerable body of opinion, and as there seems a possibility of that body of opinion, including the suffrages of Her Majesty's Government, I do not think it desirable to press your Lordships to insist further upon your former Amendment. I think the Government simply look at the desire to increase the number of allotments and do not sufficiently consider the injustice which an inequitable creation of allotments will do to the owners of land and to the farmers. I do not, however, like pronouncing a funeral oration over the dead, but, recognising that the Government have made a step in the direction of the Opposition, it is only fitting that we should make a step in their direction. Therefore, I shall not contest further the question of a reference to Parliament. I confess, however, that I do not feel quite easy about the power to employ experts, if that means experts fetched down from London. If by the term "expert" you mean a local farmer, then the exclusion of expert evidence will be very injurious. I therefore hope that 967 the word "experts" will be allowed to drop out of the clause.
THE EARL OF KIMBERLEYSO do I. THE LORD CHANCELLOR (Lord HERSCHELL): Looking at the nature of the subject-matter of these questions, I do not think they are cases in which there would be any necessity for the employment of counsel. I am, therefore, at one with the noble Marquess. As regards exports, I quite agree that questions may arise as to what is an expert. But in point of law anyone who did not come to speak of facts on his knowledge would be an expert. Therefore, I think the exclusion of the words might go. But with regard to the remarks of Lord Onslow, that the fees of counsel are the greatest expense in these matters, I do not agree. I think the fees of experts generally exceed the fees paid to counsel.
*THE EARL OF MORLEYI hope I may not be accused of undue parental partiality when I say I prefer the Amendment sent down to the other House to the Amendment of the noble Duke. I regret that that proposal was not discussed more in the other House, and that it has been assumed because the Parliamentary procedure was expensive and dilatory in time past that it must always be so. The object of my Amendment was to render that procedure quicker and cheaper. When it is said that Parliamentary procedure is costly, and that Local Government Board inquiries are cheap, I think the facts are somewhat distorted. I believe there are many Local Government Board inquiries which at the present moment are far more expensive than Parliamentary inquiries. Yesterday I attended at Plymouth a Local Government Board inquiry, in which I was personally interested. No doubt this inquiry affected a question of considerable importance and complexity, but there were present almost all the leaders of the Parliamentary Bar and half-a-dozen skilled witnesses, whose fees I should be sorry to estimate. I mention this to show that statements as to the economy of the Local Government Board inquiries are not justified by the facts. I do not base my objections to an appeal to the Local Government Board in these cases on any doubts as to the ability or integrity of the President of that Board or of his officers the Inspectors, but rather 968 on the character of the inquiry itself. I will not go into any details, but I would only remind the House of one point— namely, that the Head of the Local Government Board is not in the least bound by the Report of his Inspector. The Report is a confidential and not a public document. But the consideration of the present Amendment passes from detail into a question of political expediency. It is quite clear that insistence upon your Lordships' Amendment, sent down to the Commons might, judging from the fate of other Bills, imperil this Bill, and if the Bill wore lost on this particular Amendment, I think the House might be subject to very grave misrepresentations outside. It might be represented, however unfairly, that a House of landlords had robbed the poor man of his allotments. However unfair such a statement might be, it would be believed. We have already had statements of the kind, I am sorry to say, and statements which were inaccurate made by a Cabinet Minister. If Cabinet Ministers think it consistent with their characters to make statements which were admittedly inaccurate, it is difficult to say what will be the conduct of their agents in the country. If these things are done in the green tree, what might be done in the dry? It is to he deplored that we have to discuss this question under these circumstances. The conditions exist, and I should be sorry to express an opinion that this Amendment should be adhered to if there is a chance of risking the passage of this Bill through Parliament. Though I prefer the Parliamentary procedure as fairer, juster, and more in accordance with our present law, still, under the conditions, I am prepared to support the present Amendment.
§ **THE DUKE OF RUTLANDThese are not days in which any unnecessary experiment should be tried upon the fortunes of the tenant-farmers. Surround this clause as we may with safeguards, I think it is impossible to deny that the fortunes of the tenant-farmers will be considerably affected by its provisions. Therefore, I view with great satisfaction the proposal of my noble Friend Lord Onslow, that an appeal should be made in this matter to the Board of Agriculture rather than to the Local Government Board. I know it is a proposal 969 which can not be pressed at this time, but I venture to suggest to the noble Lord opposite that if he sees no objection, the tenant-farmers of England would far rather trust themselves in this matter to the Board of Agriculture than to the Local Government Board. I think, therefore, the proposal of Lord Onslow should be supported.
§ On question, that this House do not insist upon its Amendment?
§ Resolved in the negative.
§ Resolved to insist on leaving out Subsection (3).
§
The following Amendments were agreed to:—
In the Amendment on Clause 9, page 9, tine 15, in the words omitted by the Lords and restored by the Commons, line l6. leave out ("Allotment Act, 1887,") and insert. ("Allotments Acts, 1887 and 1890") and leave out ("district") and insert ("county").
Line 20, leave out ("district") and insert ("county").—(The Duke of Devonshire.)
§ THE DUKE OF DEVONSHIREnext formally moved the following Amendment:—
Line 21, leave out from ("they") to the end of line 31 and insert ("may make an Order enabling the Parish Council or District Council (as the ease may be) to purchase and take the land or any part of the land defined in the representation or (in a case to which the Allotments Acts, 1887 and 1890, apply) in the Petition.(4.) The County Council shall cause a copy of any Order so made to be served in the prescribed manner, together with a statement that the Order will become final and the effect of an Act of Parliament unless with in the prescribed period a Memorial shall be presented to the Local Government Board praying that the Order shall not become law without further inquiry.(5.) The Order sealed by the County Council shall be deposited with the Local Government Board, who shall inquire whether the regulations hereinafter mentioned have been in all respects complied with; and if the Board shall be satisfied that this has been done, then—
- "(a) If no Memorial has been presented, or if every such Memorial has been withdrawn, the Board shall, without further inquiry, confirm the Order;
- "(b.) If a Memorial has been presented, the Local Government Board shall proceed to hold a public inquiry in the locality, and shall after such inquiry either confirm with or without amendment or disallow the Order;
- "(c.) Upon any such confirmation the Order shall become final and have the effect of an Act of Parliament.
(6.) In any Order made by a County Council under this section for the purpose of 970 the purchase of land otherwise than by agreement, the Lands Clauses Acts shall be incorporated, but any question of disputed compensation shall be dealt with in the manner provided by Section 3 of the Allotments Act, 1887, and provisoes (a), (b), and (c) of Sub-section (4) of that section are incorporated with this section and shall apply accordingly: Provided that in determining the amount of disputed compensation the arbitrator shall not make any additional allowance in respect of the purchase being compulsory.(7.) At any inquiry or arbitration held under this or the following section the person or persons holding the inquiry or arbitration shall hear any authorities or parties interested by themselves, their agents and witnesses, but shall not hear counsel or expert witnesses except so far as may be. authorised or directed by the Local Government Board.(8.) Sub-section (2) of Section 2, Subsections (5), (6), (7), and (8) of Section 3 of the Allotments Act, 1887, and Section 11 of that Act, and Section 3 of the Allotments Act, 1890, are incorporated with this section, and shall, with the prescribed adaptations, apply accordingly.(9.) In this and the following section, the expression 'prescribed' means prescribed by Regulations of the Local Government Board, and such Regulations shall include forms of notices to be given by Parish and County Councils to the owners, lessees, and occupiers of any land proposed to be taken, and other notices, Orders, and documents for the purposes of proceedings under this section.(10.) Sub-section 3 and 4 of Section 52 of the Public Health Acts Amendment Act, 1890, shall be applicable to such Regulations as if the same were regulations made under the powers of that section.
§ THE MARQUESS OF SALISBURYI now move to leave out the words "or export witnesses," so as to leave the prohibition in Sub-section (7) simply as affecting counsel.
§
Amendment moved,
To leave out the words ("or expert witnesses.")—(The Marquess of Salisbury.')
THE EARL OF KIMBERLEYsaid, be sympathised with the object in not having an entire prohibition of experts.
§ THE MARQUESS OF SALISBURYThe noble Earl knows the rural districts very well, and if any prohibition was inserted experts would be dropped altogether. My idea of the experts who ought to be produced are the men who know the locality and the circumstances—farmers and men who would be arbitrators in their own neighbourhoods.
§ THE DUKE OF DEVONSHIREThe proposal in my Amendment is only— 971
Shall not hear counsel or expert witnesses except so far as may be authorised or directed by the Local Government Board.I suppose it should be left to the Local Government Board to draw up Rules under which these inquiries shall be conducted. Then there is the mysterious Sub-section (10) at the top of page 4, which says—Sub-sections 3 and 4 of Section 52 of the Public Health Acts Amendments Act, 1890, shall be applicable to such Regulations as if the same were Regulations made under the powers of that section.That sub-section, I am informed, means that the proposed Regulations shall be laid upon the Table of both Houses.
§ THE MARQUESS OF SALISBURYI still urge that expert witnesses, until you define for yourselves what they are to be, should not be prohibited in an Act of Parliament. I defy the Regulations of the Local Government Board to say what experts should be employed and what should not.
*THE EARL OF ONSLOWCould Ave not omit words after ("counsel") down to ("sub-section")? Then there would be no prohibition as to the bearing of expert witnesses. The noble Duke informed the House that he bad very competent advice upon it. I think it would have the effect of cheapening the procedure.
§ **THE EARL OF SELBORNEsuggested that the word "scientific" might perhaps better express the intention of their Lordships, because neighbouring farmers might possibly be called experts in farming, and still they would not be what the House would call experts.
The words "or expert witnesses" struck out.
§ THE LORD CHANCELLOR (Lord HERSCHELL)It is proposed to leave out the words—
("Except so far as may be authorised or directed by the Local Government Board").Words left out.
*THE EARL OF MORLEYBy Subsection (10) I think the Sub-section 4 of the 52nd section of the Public Health Act, 1890, would render it necessary that these Regulations when made should not 972 only be laid before Parliament, but before the Privy Council. I should not think it would be necessary to have a confirmation by the Privy Council, but it was in my Amendment.
§ Amendment (The Duke of Devonshire), as amended, agreed to.
§
Consequential Amendment agreed to:—
Page 10, line 8, leave out Sub-section (4) As a consequential Amendment, line 18. leave out Sub-section (6) and insert ("The expenses of a County Council incurred under this and the following section shall be defrayed in like manner as in the case of a local inquiry by a County Council under this Act").—(The Duke of Devonshire.)
§ THE DUKE OF DEVONSHIREI now move the Amendment, Clause 10, page 10, line 26.
§
Amendment moved,
In the Amendment on Clause 10, page 10, line 26, in the words omitted by the Lords and restored by the Commons, leave out from ("to the") to ("Council") in line 28, and insert ("County Council, and the County Council may make an Order authorising the parish.")—(The Duke of Devonshire.)
THE EARL OF KIMBERLEYThis Amendment relates to hiring, and was referred to by the noble Duke when he spoke before. As this is a separate matter I deferred my observations with regard to hiring. The Government entertain a strong opinion that it is very desirable the clause should remain in the form in which it came to this House. Hiring is placed under the Bill on quite a different footing to purchase. In the case of purchase the question went to the District Council—the body corresponding to the present Rural Sanitary Authority. That, of course, is in accordance with what is now done; but in the case of hiring you go at once from the Rural Authority to the Local Government Board, and we think that is a more efficient proceeding than going round through the County Council. Hiring stands in a very different position to purchase. Land will be hired on terms which will not be at all disadvantageous to the landlord. Great and unexpected opposition has been shown to hiring; but no one can tell what will be the feeling in different parts or all parts of the country. To me it is a matter of great surprise that in the present position of affairs there should be any disposition on the part of owners of laud to oppose the hiring out of their land. If you let your 973 land upon reasonable terms to the Rural Sanitary Authority, having the rent perfectly assured without any difficulty or trouble, it seems to me that that is by no means a disadvantageous proceeding as regards the landlord. Then great stress is laid upon the position of tenants, and it is said that great injury will result by this hiring to the occupiers of land. The occupiers of land are absolutely dependent on the labourers for the means of conducting their business; they cannot conduct their business at all without the labourer. It is, therefore, a very disastrous idea to set the occupiers of land against the labourers. It is very essential to the occupiers that they should be on good terms with their labourers, and that the labourers should not go away into the towns. As we know, the labourers have a very strong desire to obtain these allotments; and where the occupiers have to part with a piece of land from their farms, I say it is directly to the interest of the tenant-farmers of England that every facility should be given to their labourers to obtain these allotments. Therefore, I cannot admit that these clauses are antagonistic to the tenants; and bringing the parties directly in contact with the Local Government Board will facilitate the matter. I am unable to agree with the noble Marquess, and cannot accept the Amendment.
§ THE EARL OF WINCHILSEAsaid, it was not contended that the clause was antagonistic to the tenant-farmers of the country. What was contended was, that unless it was safeguarded it might do considerable injury in certain cases. That was a point to which the noble Earl had not sufficiently addressed himself. He very rightly argued that the tenant farmers in some cases ought to give the labourers all the allotments that they wanted. But the taking away of a certain piece of land from a farm might throw the whole of a farm out of cultivation, and therefore, in the interests of the labourers themselves, it was necessary that reasonable safeguards should be put to the clause.
§ LORD BELPERI hope the noble Duke will not accept the proposal that this clause should be excluded from his Amendment, because it appears to me it is by far the most important clause of the 974 two. Nineteen cases out of 20 under this Bill would be cases of hiring and not purchase. It will be easy for the Government to yield in procedure as to compulsory purchase of land if they propose that the hiring of land should follow the same course. What will be the course of procedure if the clause stands as at present in the Bill? The Parish Council represents the case straight to the Local Government Board. I conclude that the Local Government Board on that application, if any opposition is made, will have to hold an inquiry. The proposal is not to take land for a short time, but to take it for a period which will last for the probable length of life of anybody who is holding the land. Therefore, it is important that it should not be taken in an arbitrary way, either for hiring or purchase. The result of this hiring will probably be that there will be a contest, which will be very expensive. If the County Council make the inquiry on the spot in the first instance, and deal with the matter in whatever way they think most fair, it is not likely that with a reasonable body—as most County Councils are—that there will be a very large number of appeals. On the question of expense alone, therefore, I think the proposal of the noble Duke is far preferable. The noble Earl (Lord Kimberley) said it was of the utmost importance that the tenant-farmers should be on good terms with the labourers. But there may be terms which are too expensive to the farmer. If the price of being on good terms with the labourer is to give up a bit of land so as to entirely spoil the farm, it cannot be supposed that the tenant will be willing to sacrifice the best part of his farm to keep right with his labourers. I do not wish to appear as one desirous of making the taking of allotments difficult in any way, but I think the noble Duke's proposal to go to the County Council and afterwards to make an appeal to the Local Government Board would be one which would be not only fair to the parties, but likely to lead to less expense.
*THE EARL OF ONSLOWpointed out that there was nothing at all in the Bill to limit the number of years for which land might be hired. To hire for a period of 99 years would practically be purchase.
THE EARL OF KIMBERLEYsaid, I the Government would consider that point when it was reached, and the noble Earl could move a maximum, if he so desired.
§ THE DUKE OF DEVONSHIREI regret very much that at a time when there appeared some possibility of our arriving at something like a compromise in this matter, the Government should have taken the attitude they have done on this clause. In introducing this matter I said I attached greater importance to the procedure laid down to the hiring clause than to that of purchase. I am rather surprised that my noble Friend should have announced his intention of dividing against this Amendment. The hiring powers in this clause would be as easily worked as possible. The Government were anxious that this laud should be hired for the purpose of being made into allotments for labourers; but it could not be their desire that such transactions should be entered into when they were either unjust or impolitic. There could be no reason against unjust or impolitic compulsory purchase of land which did not apply with equal force to compulsory hiring of land. What would it matter to the great part of owners whether their land was compulsorily removed from their control for a period of 21 or 30 years or for ever? What does it matter to the great majority of tenant-farmers whether they are compulsorily deprived of what they consider to be the best part of their farm for 14 or 21 years or permanently? If the tenant-farmer is right in his contention that the loss of a certain piece of land will ruin his farm, and consequently ruin his power to give employment to the labourers of the district, what does it matter whether it is hire or purchase? In the amicable temper at which we have arrived, I do not wish to say anything to destroy that feeling, but the Government's acceptance of the proposal with regard to the 9th clause is utterly valueless if they do not also accept this with regard to the 10th clause.
§ THE EARL OF DENBIGHasked the Leader of the House whether he could give any idea as to what would be the probable course the Local Government Board would take in deciding this matter of compulsory hiring? The Earl of Kimberley looked upon the Local 976 Government Board as the best tribunal for deciding this matter, but it was desirable to know what course they would take. During the last five or six years expectations had been aroused in the country districts that on the passing of a Parish Councils Bill by a Liberal Government every man would he able to obtain as much land as he thought, he could cultivate properly. Was land to be given to every man who asked for it if it would damage the estate from which it was taken? Some form of policy must be adopted, because if they had two inquiries going on in different parishes by two Local Government Board Inspectors they could not very well refuse to grant land in one parish, because it would injure a certain farm, and in another parish give land to everybody who asked for it. There was a considerable amount of apprehension in the minds of farmers in the country at the present moment as to the working of this Bill, He had received letters from tenant-farmers in his district, and they openly said that the labourers were looking forward to being able to take the very best bits of grass land.
§ LORD BELPERremarked that the Amendment of the Lords which limited the time for any lease to not less than 14 years and not more than 21 years had been left out. There would, therefore, be no limit.
THE EARL OF KIMBERLEYsaid, the proper time had come for the noble Lord if he wished to move his limit.
§ THE DUKE OF DEVONSHIREsaid, he presumed his Motion was—
That this House does not insist upon the former Amendment to which the Commons have disagreed, but propose another Amendment instead.
§ Motion agreed to.
§ THE DUKE OF DEVONSHIREthen moved—
On the Amendment in Clause 10, page 10, line 26, in the words omitted by the Lords and restored by the Commons, leave out from the second ("the") to ("Council") in line 28, and insert ("County Council, and the County Council may make an Order authorising the parish").
§ On question? whether the words proposed to be left out stand part of the Bill, their Lordships divided:—Contents 18; Not-Contents 85.
977§ LORD BELPERintimated that he would not move a limit for the hiring lease.
§ THE DUKE OF DEVONSHIREnext moved the following Amendment:—
Line 31, leave out from ("shall") to the end of line 37, and insert ("as respects confirmation and otherwise be subject to the like provisions as it it were an order of the County Council made under the last preceding' section of this Act").
§ Amendment agreed to.
§ THE MARQUESS OF SALISBURYThis is a substitute for certain words struck out in the Commons. The House of Commons did not approve of the suggestion this House adopted that the arbitrator should be required to find the selling price of the property, and then the rent should be fixed at 3 per cent, on that selling price. It is not worth while arguing the question. In the House of Commons the Speaker took a mistaken view; but the same object can be obtained in other ways, and, as I understood the Debate of the Commons, it was that it should be obtained in another way. It should be pointed out to the arbitrator that there are two matters in which the owner and occupier require protection in respect of the hiring of land, and in regard to which the Lands Clauses Act does not give them protection, because the Lands Clauses Act was not passed with regard to hiring of land. It does not seem to me to be right to leave the arbitrator to his own device, and there is no statutory direction to the arbitrator. I propose, therefore, that the arbitrator, in fixing the rent or compensation, shall take into consideration any damage likely to be incurred during the period of hiring by the owner in consequence of his being deprived of the land, or any trouble caused to the occupier, or by his being injured in his business as a farmer. This Amendment will apply to two difficulties. ONE is the case of land near to a growing town. If a man was shut out for 35, 40, or 50 years from the use of that land, he would suffer a totally undeserved and unmerited loss. This will be sheer confiscation if he require the land to let it out for that period for purely agricultural purposes. The clause, therefore, required that the arbitrator should consider in the case of the owner any damage likely to be incurred by him in con- 978 sequence of his being prevented from applying his land to a more profitable purpose. Then there is the serious case of the occupier. His farm might be made useless to him because his meadow land, which is essential in order to keep his stock, and on which the manuring of the farm depended, is taken away. This is generally the most tempting land for allotments. Then there is the land as to which I have received many communications—the home fields, fields in the immediate neighbourhood of the steading, which are of enormous value to the farmer, and which if taken away would add enormously to his expenses. It is, therefore, clearly just that the arbitrator should take these two things into account. I know it will be said that the clause included such compensations, but according to the best of my study this is not true. I have examined the matter, and I cannot find any trace of this protection. Though the first-rate lawyers on the Government side might make this assertion, the first-rate lawyers on the Opposition side flatly contradict it, and if this is the case the Government are bound to insert words in the clause to make the point clear.
§
Amendment moved,
Clause 10, page 11, to insert after ("hiring") in line 10, these words ("The arbitrators, in fixing rent or other compensation, shall take into consideration any damage likely to be incurred during the term of hiring by the owner in consequence of his being prevented from applying the land to a. more profitable use, or by the occupier by reason of his being hindered in his business as a farmer in respect to other lands by the loss of the land proposed to be taken".—(The Marquess of Salisbury)
§ *THE MARQUESS OF RIPONsaid, the noble Marquess had anticipated the answer of the Government, which was that in their opinion the matter was dealt with in a previous portion of the Bill. Besides, the Amendment seemed to him to be extremely vague. The noble Marquess said it was desirable to make the matter clear, but he did not think the arbitrator was likely to get any very clear directions from being told that he was to estimate the damage which was likely to be incurred during the period of tenancy in consequence of the owner being deprived of the right of putting his land to a more profitable use. It was not possible for him, on the 979 part of the Government, to accept the Amendment.
Former Amendment of the Lords not insisted on.
§ Amendment (The Marquess of Salisbury) agreed to.
§ THE EARL OF WINCHILSEAsaid, he thought it was not clear that the compensation to he awarded to the tenant should be paid by the Parish Council or by the landlord. The intention of their Lordships undoubtedly was that that compensation should be paid by the Parish Council and not by the landlord. He asked the Government whether words should not be put in to make it clear. Otherwise, the natural remedy of the tenant would be against the landlord.
§ THE MARQUESS OF RIPONThe noble Lord has not, I think, given notice of any Amendment. The view of the Government is that compensation is to be paid by the Parish Council, and we think that is made clear by the Act.
§ THE EARL OF WINCHILSEAI have an Amendment to line 38 of Clause 10 after ("5") to insert ("Sub-section 2 of Section 2 and"). What the sub-section does is to provide that in the case of land taken under that section the Council or authority taking the laud shall not take it unless the Council is satisfied that the land can pay a rent which will recoup the Council for taking it. It appears to me to be a very valuable provision, and would be a great safeguard to the farmers that land which was too valuable for allotments should not be taken. He had to contend that his Amendment was consequential, inasmuch as a sub-section previously inserted in the Amendment of the noble Duke dealt with a cognate question.
§ THE MARQUESS OF RIPONIf the Amendment can be introduced, and if it is consequential on the noble Duke's Amendment, we will not oppose it. But I fear it is not consequential.
§ THE EARL OF WINCHILSEAOnly as a matter of principle, but not of wording.
§ THE LORD CHANCELLOR (Lord HERSCHELL)I am afraid it cannot be 980 introduced here under the circumstances.
§ THE EARL OF WINCHILSEAPerhaps the noble Marqness can see his way to introduce it in another place?
§ THE MARQUESS OF RIPONThere is no chance of it.
§ THE EARL OF WINCHILSEAI find there is a Lords Amendment later that will exactly answer my purpose.
§ THE MARQUESS OF RIPONI said distinctly it was to be dependent on the Amendment being in Order, and as I find it not to be in Order it falls to the ground.
§ THE EARL OF WINCHILSEAIt appears on the Paper as a consequential Amendment, and I beg to move it accordingly.
§ THE LORD CHANCELLOR (Lord HERSCHELL)But it is not a consequential Amendment.
§ THE EARL OF WINCHILSEAsaid, it was, of course, only consequential on other clauses.
§ THE LORD CHANCELLOR (Lord HERSCHELL)said, the proposal was to leave out the word "Provisional" before "Order." But he thought the better plan would be for the House to leave the words as they stood on the Paper.
§
Question proposed,
Page 12, line 7, "That this House do not insist on the omission of the words 'Local Government Board,' but insert before such words 'County Council, or'".
§ On question, "That those words be there inserted?"
§ Resolution in the affirmative.
§ Amendment, in page 12, line 10, to insert after "gravel" the word "flints."
THE EARL OF KIMBERLEYThis is practically as the House left it, the only alteration being the omission of the words "surface minerals." But there is a slight verbal alteration required to make it read properly, for we must insert the word "authorise" before "hiring." I propose that we agree to the Commons Amendment, and subsequently insert the word "authorise."
*THE EARL OF ONSLOWdiffered from the view that the words now proposed were practically the same as those sent down to the Commons.
*THE EARL OF ONSLOWsaid, the clause, as sent down, included the words "or any surface minerals," thereby limiting the right to take away such minerals. That would have covered the case of flints, which in many parts of the country, especially in the South of England, constituted an important source of income. He had had some personal experiences in connection with this matter. He found that his allotment holders were digging the flints out of the land and selling them to the road surveyors. Now, he believed it was the intention of the Government that such minerals as flints should not be taken away, but there had been a decision in the Law Courts that a tenant was entitled to sell flints off his holding, and he therefore submitted that flints ought to be specified in this clause. He hoped the Government would agree to an addition of words to that effect.
§ THE MARQUESS OF SALISBURYWhy not?
THE EARL OF KIMBERLEYI never before heard that surface flints were considered to be minerals. I bow, of course, to the opinion of the Law Lords, but I suggest that we should, if these words were added, be practically creating a new definition. To say that surface flints are minerals is to me a most astounding proposition, and for that reason I am extremely indisposed to add these words. If the existing law with regard to minerals includes flints, then, of course, there is an end to the matter. But the question now before the House is whether we are to put in this clause a new interpretation. We have provided for the cases of clay, sand, and gravel, in the event of there being any doubt as to them, but it does seem to me it would be a very hazardous proceeding to add flints.
§ THE MARQUESS OF SALISBURYI know a town in which a very thriving trade is carried on in the exportation of flints. I do not suggest that allotments 982 would be taken simply in order to dig flints, but I do wish to point out that they constitute a very valuable portion of the soil there, and I certainly do not think allotments should be taken for the purpose of securing the flints.
THE EARL OF KIMBERLEYIt would depend very much on the size of the flints. Are they quarried or simply picked off the land?
§ THE MARQUESS OF SALISBURYThe flints I refer to are twice as large as your head.
§ LORD ASHBOURNEsaid, the House by the clause was forbidding the right to carry away sand, clay, or gravel, but it was evident that those words would not cover the case of flints, which might accordingly be carted away and sold. That would surely be entirely contrary to the intentions of the Act, and adverse to the spirit of allotments.
§ **THE DUKE OF RUTLANDpointed out that flints were in some counties a valuable building material.
§ EARL CADOGANasked why the Lower House had struck out the words, which would have avoided all risk?
THE EARL OF KIMBERLEYsaid, he was unable to answer that. What he believed happened was this. It was felt that there was no necessity at all for any addition, but inasmuch as their Lordships seemed to attach importance to putting in particular words about sand, clay, and gravel, and as no objection was entertained, the lower House assented to the Amendment.
§ EARL CADOGANthought the Commons' Amendment might be added to their Lordships' Amendment. The Amendment was to insert after "such land," "or any rights with respect thereto." Why could not those words be inserted instead of "minerals"?
THE EARL OF KIMBERLEYsaid, such words would be of considerable import, and the same reasons which prevented their insertion in the Bill as originally framed no doubt still applied. Minerals constituted a different subject, 983 upon which he had no practical knowledge; but he thought the suggestion of the noble Earl was a very large proposition, and could quite understand the Commons would not desire to pass a clause with such words as "or any rights in respect thereof."
§ EARL CADOGANsaid, that if the noble Lord would look at the reasons given by the Commons he would see that the same object could be attained by a consequential Amendment.
§ THE MARQUESS OF SALISBURYasked if the case of "way leaves" in a mining country was covered?
§ THE MARQUESS OF SALISBURYA man might obtain an allotment over which there was a "way leave." Would that be a subject of bargaining?
§ THE LORD CHANCELLOR (Lord HERSCHELL)said, if the land were subject to a particular right it would have to be taken—if taken at all—subject to that right. No right of passage would be affected by these words. The Amendment before the House was to amend the Commons' Amendment by inserting the word "flints."
§ Question, "That the word 'flints' be inserted," put, and negatived.
§ Other Amendments not insisted on.
§ Clause 14.
§ *THE EARL OF SELBORNEsaid, that in relation to this clause he had put on the Paper an Amendment to line 38, to insert after "charity," the words—
If Churchwardens are joined with Overseers as trustees.The reason given by the Commons for disagreeing with the omission of certain words by their Lordships was that the Churchwardens were representative of the parish in its ecclesiastical capacity. He agreed that there was some ground, when they were joined with Overseers, for treating them in a secular capacity, and accordingly the House had assented to passages in Clauses 5 and 6 which dealt with such cases of joint action by transferring the powers vested in them to the Parish Councils. But he did feel that in cases where the Churchwardens were not joined with the Overseers they could not, either in law or in reason, be 984 regarded as secular officers, and he therefore hoped the Government would assent to his Amendment. He admitted that in comparison with other Amendments on this clause it was not of such vital importance as to justify him in pressing it if the noble Lord took an adverse view.
THE EARL OF KIMBERLEYThe Amendment would limit the operation of the clause to an extent which the Government do not deem to be justifiable, and I therefore hope it will not be pressed.
§ *THE EARL OF SELBORNEsaid, that as the next Amendment raised questions far more generally important, he would not divide on this Amendment. But he wished to explain, that he should have pressed it, but for suggestions which had reached him from some to whom he felt bound to defer.
In Clause 14 (Public Property and Charities) their Lordships substituted the following sub-section for Sub-section (3) of the Bill as passed by the Commons:—
(3) In the case of any parochial charity (save as hereinafter provided) the benefits of which are confined solely to inhabitants of the parish, and which is not an ecclesiastical charity, the Parish Council or parish meeting may, if it think fit, notwithstanding that the number of trustees may have been fixed by the I instrument creating the charity, or by any scheme for its administration, or otherwise, appoint so many additional trustees, not exceeding the proportion hereinafter mentioned, as the Charity Commissioners shall approve; but the whole number of trustees who are either elected by ratepayers or parochial electors or inhabitants of the parish, or appointed by the Parish Council or parish meeting, shall not, by reason of such addition, exceed one-third of the whole body, including those so added; and if the management of any such charity is vested under the provisions of any such instrument or scheme, or otherwise, in a sole trustee, the number of trustees may, with the approval of the Charity Commissioners, be increased to three, one of whom may be nominated by such sole trustee and the other by the Parish Council or parish meeting. The Charity Commissioners may, by General Order or Minute, regulate the mode of carrying this sub-section into effect.To this Amendment the Commons disagreed, for the following reasons:—Because Churchwardens are representatives of the parish in its secular as well as in its ecclesiastical capacity. Because it is desirable that the elective trustees should be the majority of the persons administering a parochial charity.
§ Moved, "That this House do not insist on the said Amendment."—(The Earl of Kimberley.)
985§ THE MARQUESS OF SALISBURYI have put down a notice to insist upon the Lords Amendment leaving out Subsection (3), and I have done so merely in order to indicate our intention of challenging the disagreement of the House of Commons. This is not the form in which I wish to put the question to the House. I propose to amend the subsection, and for the terms in which I propose to amend it I have gone to a great and important authority for guidance. I will suggest no words of my own; I will suggest nothing that can be said to have come from any Church inspiration; what I propose to move are the words which Mr. Fowler himself put down as the Government Amendment in the early days of December. It appeared on the Paper of the House of Commons day after day, and when the discussion of the clause came on the Amendment was not moved, but instead of it there was moved another and much wider Amendment by one of the supporters of the Government. The Amendment that Mr. Fowler put down in the name of the Government, and which I now propose to move, is this —
Where the Governing Body of a parochial charity oilier than an ecclesiastical charity does not include any persons elected by the ratepayers or parochial electors or any of the inhabitants of the parish appointed by the Parish Council or parish meeting;, the Parish Council may appoint additional members to the Governing Body, not exceeding the number allowed by the Charity Commissioners in each case, and not exceeding in any ease one-third of the whole number of the Governing Body.This was not an Amendment put forward by the right hon. Gentleman rashly or precipitately, or without sufficient thought, or without thinking of the consequences of what he was doing, because the right hon. Gentleman himself said this with respect to it—I put down an Amendment providing that the additional elective element on the body of trustees should be one-third. I am not going to shrink in any way from the proposal I have made.The right hon. Gentleman did shrink from it very markedly—But my hon. Friend the Member for Rugby was not satisfied with the Amendment"—that is a very frightful consideration—"and he proposes that the elective element should be one-half, plus one. Practically I propose one-third, and he proposes a majority. Every man thinks his own view the best. I am not going to pretend to the Committee that I have altered 986 my opinion. When I put my Amendment down I did it with forethought and with care.Now, I have the greatest possible respect for Mr. Fowler's care, but I confess that I prefer, I will not say Philip drunk to Philip sober, but the Philip of the evening before to the Philip of the next morning. I prefer Mr. Fowler before he had been dazzled by the rays of Mr. Cobb's intelligence, before he had been alarmed by the backstairs intrigue which took place so constantly and which produced such a violent revolution in the attitude of the Members of the Government. Do not let it be said that I am moving Amendments inconsistent with the spirit of the Bill. If your Lordships say so, you will be declaring that with forethought and with care the Members of the Government intrusted with the Bill put down Amendments inconsistent with the spirit of the Bill. The Government cannot condemn me without condemning Mr. Fowler; they cannot strike at me without running Mr. Fowler through the body. When I shelter myself under the great authority of Mr. Fowler I need hardly defend the expediency of this proposal. But the only point upon which I wish to insist is this—that there is all the difference in the world between an Amendment which infuses an element of a representative kind into a Governing Body and an Amendment which, by providing a majority, confiscates the powers of that Governing Body altogether. It is impossible to have a greater difference than between the two Amendments, the one which Mr. Fowler thought out for himself and the Amendment which the right hon. Gentleman was enabled to think out with the aid and the inspiration of Mr. Cobb. The only defence that I have seen is that the trusts will remain the same. Yes, but the trusts are not the only thing that express the intention of the donor. In all trusts there is a certain discretion; in some trusts there is a very large discretion, and the way in which that discretion will be exercised is determined by the character of the trustees in whom it is reposed. The nomination of the trustees is, therefore, quite as important as an indication of the intentions of the donor, and quite as strongly protected by whatever sanctity attaches to his intentions and bequest as 987 the trust by which he has ordered they shall be guided. There is no doubt that it has been attempted to give these trustees this majority by persons who had not the responsibility of government upon them, and who had all the ardour of electoral partizanship, because it was thought that the exercise of their powers by the officers of these trusts might have a beneficial effect on other elections. I do not wish to run too closely or to point too markedly to the consequences which may be expected to ensue when you give to those who are elected such a direct material power of influencing the feelings of those who are to elect. I do not say that the consequences would be universally or generally bad, but they certainly might be bad in some cases—in the cases which meet our eyes in various parts of the world of abuses to which such a power may be put, and which warn us of the inexpediency of giving power to bodies of whose action we have as yet had no experience. Beyond that, I maintain that it is a distinct diversion of the gift of the donor. If it had been a question of ancient donors, if it had been a question of donors dating from that period when there were difficulties as to the identities of religions, and when the meaning of trusts might be questioned, I should not think it so grave an offence; but this is an attack upon donations and bequests dating no further back than the Crimean War. Donations given before the Crimean War, no matter how carefully the donor may have selected his trustees, no matter how wide the discretion he may have intended to repose in them, are to be reversed by giving them over to a majority of the Parish Council. It is done universally, everywhere without exception, without inquiry, without any cause given, without any attempt to distinguish between one case and the other, by one all-embracing general act of causeless and indefensible confiscation. My Lords, I feel that this is a very grave attempt—graver in its consequence and its principle even more than in its immediate act—and gravest of all because it was sprung on Parliament in defiance of the pledges which were given, and because it is avowedly in contradiction to the sentiments of Ministers on whose responsibility it is made.
§ THE LORD CHANCELLOR (Lord HERSCHELL)The noble Marquess has been speaking with regard to Sub-section (3). We had better first put—
That this House do not insist on the Amendment to Sub-section (2) of Section (14)—that Amendment which strikes out from lines 37 to 40.
§ Question, "That this House do not insist upon the Amendment," put, and agreed to.
§ THE LORD CHANCELLOR (Lord HERSCHELL)On the proposal to omit Sub-section (3) the noble Marquess does not insist on the Lords Amendment?
§ THE MARQUESS OF SALISBURYNo, I move a new Amendment on Subsection (3) of the House of Commons.
§ THE LORD CHANCELLOR (Lord HERSCHELL)The proposal will he not to insist on the Amendment with which the Commons have disagreed, but. to insert these words in Sub-section (3)—
Where the Governing; Body of a parochial charity other than an ecclesiastical charity does not include any persons elected by the ratepayers or parochial electors or any of the inhabitants of the parish appointed by the Parish Council or parish meeting, the Parish Council may appoint additional members to the Governing Body, not exceeding the number allowed by the Charity Commissioners in each case, and not exceeding in any case one-third of the whole number of the Governing Body.
§ On question, that those words be inserted?
THE EARL OF KIMBERLEYI do not know that I may not have misunderstood the noble Marquess, but in the last words of his speech ho alluded to some pledges that have been given. I am not aware of those pledges, and I should like to know who gave them. That my right hon. Friend made a certain proposal I am free to admit. I prefer in this matter the second thoughts of my right hon. Friend to his first thoughts. I think myself that the principle of giving a majority to the parish elective trustees is a sound and wise principle. I think it much better than one-third, though no doubt one-third will be a valuable addition to the existing trustees. And I would point this out to the noble Marquess: He uses the strong word "confiscation"; but will not his Amendment, allowing one-third of the trustees to be elected, be confiscation on that prin- 989 ciple? The same principle seems to me to apply in each case, and what you have to consider is whether your interference is more salutary in the one case than in the other. I consider it is much more salutary in the clause. I believe that these charities exist, and were intended by the donors to exist, for the good of the parish, and that the donor's intentions are best carried into effect by placing those charities in the hands of the majority of the elected representatives of the parish. The principle is a perfectly sound one. The noble Marquess has argued that the insertion of this Amendment in the Bill was an afterthought, He is at liberty to say so, but I never heard before that a Government is precluded from considering any proposal made especially by one of its own supporters. When a Hill is brought forward the general principle, of course, should be adhered to—though I have known cases where it has not been adhered to by the Government of the day. But as to the details of a Bill, it is the duty of the Government to consider the feeling of the majority of the House of Commons, and I cannot see why any blame should attach to the action of the Government for accepting an Amendment of this kind. It is in accordance with the general principles on which the Bill proceeds; and if there is a general wish expressed that this Amendment should be accepted, to me it seems quite legitimate to accept it. I see nothing which cannot be defended in the action of the Government. As to the merits of the Amendment, I contend that the Government are making general that which is now the general practice of the Charity Commission. I have ascertained that I am correct in making that statement. I have made inquiries of the Charity Commissioners, and they inform me that, though there are exceptions to the rule, this is the general practice. That being the case, we are not introducing anything very extraordinary or alarming. On the contrary, it seems to me that under the system we propose the small charities of the country will be well administered. But would point out that there are persons—and those not unimportant and not altogether in discord with noble Lords opposite—who go even further, and say 990 that Mr. Cobb's proposal is a very imperfect proposal, because it is merely to place a majority of elected trustees upon the trusts of charities. They hold that it would be more in accordance with the principles of the Party to which I belong to put these charities under the exclusive control of the Parish Council's representatives. It has been proposed by a very considerable personage in the other House; and, for my part, if I had to choose for the first time and this were brought before me, and I had to act upon my own personal opinion, I should have been moved by that proposition. But that would be going a great deal further than anything that has been proposed by the Government or by Mr. Cobb. I submit that the original proposition was one which can well be defended on principle; therefore, I am obliged to oppose the Amendment of the noble Marquess. I quite appreciate the compliment which the noble Marquess has paid to my right hon. Friend (Mr. Fowler) by adopting his Amendment, and, of course, quite understand the reasons which have prompted the noble Marquess to take this course. However, not only speaking for the Government, but expressing my own opinion, I am in favour of the clause as it stands, and shall vote against the Amendment.
§ LORD BELPERsaid, he would suggest an Amendment to the third subsection on page 15—an Amendment he had not been able to put on the Paper. The effect of it would be that the exercise of the power given to the Parish Council to elect a majority of trustees would be permissive and not obligatory, and that the Council would have the right to appoint as elective trustees any of the officers acting at present. He would not make any further remarks about the history of the clause as it now appeared before them, but would rather regard the matter from a practical point of view. Having been sent to the House on the first occasion on which they had an opportunity of considering the Bill, and having again been inserted in it, it at all events expressed the mature judgment of the House of Commons to be in favour of the clause as it stood. But he would ask the consideration of the House to what the proposal of the clause was, and he ventured to think 991 that whether looking at the principle of the Bill, or whether looking at the way in which it proposed to make these charitable trusts workable, it was one of the most extraordinary proposals that had ever been placed before Parliament. It did not propose to give any option whatever to the Parish Council. It proposed to compel the Parish Council whether they liked it or not, whether the majority of the parish wore satisfied with the way the trust had been administered or not, whether the trustees themselves had given satisfaction in the administration of the trust, or whether it was practical or advisable to increase very largely the number of trustees—it proposed to compel the Parish Council to appoint such a number of trustees as would cause the elected trustees to be a majority on the Board of the trust. He ventured to say that that was entirely contrary to the principle of the Bill. In all other parts of the measure the principle was that the Parish Council should be elected to deal with parish matters. He did not think there could be found in any other clause of the Bill a direction to the Parish Council that whether they liked it or not they must deal with the matter in a certain way and elect a majority on a trust whether it was wanted or whether it was not wanted. He agreed in a great measure with the remark made by the noble Earl the Leader of the House with regard to the desirability of giving some control to the Parish Councils over charities in their districts which were purely parochial charities and which were not in any way ecclesiastical charities, and he was not for a moment suggesting that the words which he proposed to insert were the most perfect way of giving effect to that which he believed was desired by many of their Lordships. He was looking simply at the clause as it stood, and he believed that by doing away with the compulsory provision and making the clause permissive they would be doing quite as much in the direction of giving Parish Councils control over charities as it was either desirable or necessary to do. He would ask their Lordships just to consider this point. It was perfectly possible and extremely likely that there might be a great number of trusts which had been satisfactorily managed not only in the opinion of those 992 who benefited by the trust, but also in the opinion of members of the Parish Council. It would really be putting the Parish Councils in a most unfair position to compel them to elect a majority of trustees on the Boards of Charities which they knew had been satisfactorily managed. Friction would certainly result on Boards as small as these would be, because the elected trustees would not know as much about the matters intrusted to their administration as the existing trustees, and yet would act as if they had been elected for the very purpose of overruling the latter. If, however, the Parish Councils had permissive powers and were allowed to deal with these things as with other matters, the trusts would work satisfactorily. He would only further point out that if the words he proposed were approved the Parish Council would have power to elect a majority of trustees upon a charity, or any smaller number if they should prefer to do that. They would also be put in a position to show their appreciation of the manner in which a trust had been administered by electing the very men who had administered it hitherto. He was willing to admit that this was a compromise, and that like some compromises might be thought by those who held extreme views on either side to be bad. He ventured, however, to say that it was better than the proposal in the Bill, and he should not have suggested it if he did not think it a practical proposal that would be likely to work well on these small Boards in the future, and one which would be likely to prevent the friction which would be caused by the proposal as suggested in the clause as it came from the House of Commons. He was surprised, but pleased, to hear the noble Earl the Leader of the House express at the beginning of the Debate this evening his wish that the Bill should he put in such a shape that a really good measure should pass. He ventured to think that this would be the view of those who considered the proposal from a practical and fair point of view—that it would improve the Bill and make it a better Bill as far as the working of trusts of this kind were concerned than it would be if they adhered to the clause as sent up from the House of Commons. Having said that much for his Amendment in order to explain it he 993 left himself in the hands of the House with regard to procedure. He understood that the Amendment of the noble Marquess would take precedence, but if he had the opportunity he should certainly like to submit his proposal to the judgment of their Lordships.
§ *LORD HALSBURYsaid, he should like to point out that what was called a compromise appeared to be the surrender of the whole situation. If elected trustees were tit to be entrusted with the administration of the trusts no difficulty would arise. Justice would be done, and the trusts would be properly administered. What was to be guarded against was the possibility of persons being elected for the purpose of employing the trusts in directions which were never intended. To put it shortly, if the trustees elected could not be trusted, all the evils that could be anticipated from the enforcing of the trust by the majority of the elected trustees would arise. What was the principle upon which the original proposal was founded? Why, that there should be trustees elected by a body themselves elected, because trustees selected by the founder might divert trust funds from the purposes contemplated by the pious founder. The clause would apply not merely to ancient trusts which were not according to modern ideas, but to those trusts created no longer ago than 40 years—as the noble Marquess had said, to everything dating from before the time of the Crimean War. On what principle could that be defended? The noble Earl opposite said the principle was right, but what was the principle? And was the arrangement proposed for the benefit of those for whom the trusts were left by the pious founders, the principle being that the trusts should be administered by those for whose benefit they were left? That would be an odd principle, and one which he had never heard of before. The adoption of such a principle clearly would lead to many evils which were at present unknown. What necessity was there for the provision which the Government had inserted in the Hill? Nobody asked for it. Were there any complaints that the trusts had not been properly administered? There were none. Those who suggested the alteration in the Bill did so without the smallest foundation for the allegation 994 that there had been any complaints of the trusts having been improperly administered; and the only question that seemed to him to be involved in raising the matter was one between Nonconformity and the Church. He believed it was very far from the intention of the Government to raise that question, and the proposal originally did not receive the slightest encouragement from the right hon. Gentleman in charge of the Bill. It was thought, perhaps, by the Member of the House of Commons who brought it forward that a popular cry might be raised upon it; and, unfortunately, the Government had thought it right to adopt it. But now the Leader of the House suggested that the principle of the clause was the principle which had been adopted by the Charity Commissioners. He was not aware of it. At that moment he did not distinctly understand what that principle was supposed to be.
§ THE MARQUESS OF SALISBURYAll elected by the same constituency?
§ *LORD HALSBURYsaid, the moment it came to be examined it seemed to him that the analogy failed. Even if such a principle were followed by the Charity Commissioners—
§ LORD HALSBURYWell, the general practice. Even if the principle were adopted by the Commissioners in particular circumstances—which would hardly be consistent with the idea of "general practice"—he should not be terrified by the example. He should say it was wrong. There was no principle at all in such an arrangement. The Charity Commissioners might have been of opinion that the circumstances warranted putting a majority of elected representatives on a particular trust, but that did not establish the 'principle. It appeared 10 him that there was no principle which could justify such a departure as the Government had effected from the original purpose of the Bill, and he earnestly hoped that the suggestion 995 which had been offered as a compromise would not be insisted upon.
THE ARCHBISHOP OF YORKsaid, be had put an Amendment on the Paper, and perhaps it would be convenient if he now explained the object of it.
THE EARL OF K1MBERLEY (interrupting)said, it would be more convenient, to himself and the House if the most rev. Prelate would reserve himself until his Amendment was reached, because they now had before them a distinct Amendment.
§ THE MARQUESS OF SALISBURYsaid, he always hesitated to urge questions of Order in the House, but he had been feeling for some time that the discussion should be confined to the Amendment before the House.
§ *THE EARL OF SELBORNEsaid, he could not refrain from stating his feeling upon this matter. He was sorry the Government should take the line they seemed disposed to take in the matter—he was sorry for several reasons. One reason was that the matter appeared to him to be entirely collateral to the objects of the Bill. There was nothing about it in the Bill as introduced. He admitted that they might improve a Bill as it passed through Parliament, and they knew what the view of the right hon. Gentleman the President of the Local Government Board was of the best way of dealing with the matter when it was first proposed to deal with it. Having regard to the right hon. Gentleman's opinion, and to the notice which be placed upon the Paper in the House of Commons, he (the Earl of Selborne) could not believe that the clause as it stood could be treated by the Government as vital to the Bill. Their Lordships must take notice that the clause applied this hard-and-fast rule to all parochial charities in the parish, and a parochial charity as defined was not only that which was intended for the general benefit of all the inhabitants of the parish, but what was for the benefit of any class of inhabitants of any part of the parish in any sort of way so long as it was confined to the parish. That was the definition of a parochial charity. There might be a great variety of such charities for one class or another of persons within the parish, or for one part or another of the parish; hut they 996 were all swept over by the clause, and the provision was not only for rural parishes, but, under the 30th clause, it might be applied to urban parishes and every borough in the Kingdom. By the 19th clause of the Commons Bill, it was made capable of extension to parishes which had no Councils, the County Council being invested with power to confer on the parish meeting any of the powers conferred on the Parish Council by the Bill. Bearing those things in mind, let them look at the matter from a working point of view. Let them lay aside all considerations of any special interest of any particular class of persons, and it appeared to him that a clause more self-condemned on the face of it could hardly be conceived. He said "on the face of itself self-condemned." Paragraph (a) was in these words—
Where by reason of the addition hereby directed the number of trustees is, in the opinion of the Charity Commissioners, too large, having regard to the fund to be administered, to the number of persons available as trustees, and to all the circumstances of the case, they may by Order suspend the filling of future vacancies among the trustees so as to reduce their number without preventing the persons elected or appointed as aforesaid being a majority.The Charity Commissioners were not to have power to absolve any Parish Council from this obligation. No; all these unsuitable things, all these inconveniences, were to take effect, but the Charity Commissioners might suspend the filling of future vacancies so as to reduce the number without preventing the persons elected being in the majority. The clause confessed upon the face of it that it was likely that in various cases there would be such an increase of numbers as would be detrimental to the proper working of the trust under the clause—that there would not be a sufficient number of proper trustees available; and yet the majority of elected trustees was to be secured, the Charity Commissioners rectifying the mischief, as well as they could, on the occurrence of future vacancies. The clause, applicable to all parishes, not only required this majority to be added to the existing trustees, hut that everybody to be appointed should be a person qualified to be elected a Councillor for the parish. They could 997 not go out of the parish to create this majority. Although there might not be a sufficient number of persons with any fitness for the work of trustees—with leisure, knowledge, or any experience of such work—although there might only be persons, however respectable, whom no human being would ever select for the purpose of administering a trust, yet, they must be selected for the sake of instituting this majority. Ho had said there might be a great variety of kinds of parochial charities for various purposes. One had been often referred to; and in this context it seemed to him most important to refer to it—namely, doles. They might or might not be favoured in the opinion of some persons, but a great many people had made benefaction of that sort for the distribution of benefits amongst poor people in parishes, and here they proposed to give to a body elected by persons, some of whom might be in receipt of the doles, or connected with persons in receipt of the doles, or desirous of participating in them, the power of electing a majority of the trustees. These trustees were to be preferred to those in whom the author of the trust had confidence for the distribution. He ventured to say that, whether it were from error or any other motive whatever, an indiscriminate or unwise distribution of doles might turn such a charity from a benefit to the parish into a curse. If they insisted upon applying this hard-and-fast line to all such charities in all parishes, populous or not, with or without a mixture of different classes in them, nobody knowing by what means, in many such parishes the thing could be done so as to obtain persons fit to be trustees understanding the nature of the duty and qualified by any sort of education or preparation for performing it wisely, it was not only his opinion, but also that of other men, among the best supporters of the Government, such as the excellent man to whom the Lord President referred—Mr. Rathbone—as having proposed a very different mode of dealing with these things, that they would be not providing for the useful and beneficial and wise administration of those charities, but doing exactly the reverse. And for what possible reason? Had they ever dealt with chari- 998 ties before in anything like that way? There was a careful inquiry into the question of charities a great many years ago, and in consequence the Charity Commissioners were appointed. There had been a variety of Acts passed. The Charity Commissioners looked into the circumstances of each particular charity, and, having considered those circumstances, determined what changes within their jurisdiction might be desirable, whether as to the number of trustees, the qualification of trustees, or the administration of the charities. But whoever heard or dreamt before of this wholesale indiscriminate way of dealing with large classes of charities without the least reference to the particular circumstances or character of any one of them? He could not but think that this was an extraordinary example of deviation from all principle, whether in regard to respect for founders' opinions or the probable, practical, working for good of the charities that could have been invented. To him it seemed that if they wished to proceed in that direction, the wise course to adopt was tentatively to introduce these new elements, to train the new class of trustees to the administration of these trusts, and give them the assistance of those who had been accustomed to the work, and who would probably, if not swamped and overwhelmed in this manner, make very useful trustees in the future out of those associated with thorn. But to overturn all that had gone before, and to at once and intentionally to deprive of power all existing trustees without any cause or reason shown whatever, and that in a matter collateral and foreign to the proper object of the Bill, was a thing which he could not believe the Government would ever treat as essential to the objects of the Bill. To him it seemed entirely indefensible in principle. He did not agree with his noble Friend opposite in the opinion that the modification suggested by Lord Belper would not be an improvement. He thought it would be a great improvement in the Bill as it came from the House of Commons; but, at the same time, he thought that all cases in which the power was exercised there would still be room for the objections he had 999 mentioned, and for that reason he felt himself obliged to vote for the Amendment of the noble Marquess.
THE ARCHBISHOP OF YORKsaid, there was one point in connection with this clause which had not been adverted to—namely, that the suggestion of a "majority" would immediately load the elected trustees to suppose that they were appointed for the very purpose of overturning the existing trustees. The mere fact of suggesting the majority would suggest to the elected trustees, "Then we are appointed for the purpose of overruling the trustees that now exist." If they were laying the foundations for now trusts there might be a great deal to be said as to having a majority on the one side or the other; but when they were considering trusts administered from generation to generation by bodies of trustees who had performed their duty satisfactorily, there appeared to be neither reason nor justice in such a revolutionary interference with a trust which might have existed and been well administered for a very long period of time. Surely, too, greater consideration ought to be paid to the ideas of (he founders of trusts—these persons who had been described in another place as "so-called donors, whatever that may mean"—but some consideration ought to be paid to their desires as to the kind of persons by whom the trusts should be administered. To swamp the trustees duly appointed in terms of the benefaction was to do something absolutely unnecessary, oven if it were not for other reasons inexpedient, He should be sorry that he or any of his colleagues on the Episcopal Bench should be supposed to object to the principle of local representations of some kind in these charities. He thought it very desirable to infuse new life into the administration. If would present the subjects connected with administration in new points of view, and bring them more into accord with the circumstances of the present day. But this was a very different thing from the complete upsetting of the whole conditions of the trust which was involved in the Government proposal. He did not think the proposal of the noble Marquess was the very best, because ho had one of his own; but somehow they 1000 ought to show their feeling against having a majority of elected trustees.
*THE ARCHBISHOP OF CANTERBURYsaid, that although very little was loft for him to say, especially after the exhaustive arguments of the noble Marquess, he would offer one or two observations. Ho had come there that night anxious to hear what would be said in defence of the clause, which appeared to his instincts monstrous. The first defence offered for it by the Leader of the House was that he thought a majority better than one-third. That in it self, though heard with respect, did not constitute the shadow of a reason. Then it was said that the Charity Commissioners had adopted a particular course; but a document put into his hands stated only that they had recently, in some instances, thought it right to have a majority of elected trustees, and every one of those instances would bear examination. The hint of the noble Marquess was most important when he asked were the trustees all taken from the spot by the Charity Commissioners and all elected from one constituency. As a matter of fact, the trustees put on by the Charity Commissioners for the administration of important trusts were taken from the most important bodies in England. He did not quite understand what was said by his most rev. Brother as to the introduction of the local element. As a rule, such trustees were local men; they were almost all people on the spot, or people interested in the spot. These were the reasons which had been urged. What had they to put against them? Against these reasons for the clause he put the good faith of England. They had gone on for centuries past in perfect confidence in the law, and in the sense of honour and reverence for the dead. These trusts had been founded in the most solemn circumstances, and with the best advice to carry out men's views, the founders believing that they rested on the good faith of England; and now their Lordships were asked in a moment to overthrow all these trusts. The donor was now spoken of with some contempt, as the pious founder used to be; and his wishes were treated as jetsom and flotsom on the face of society. What he had carefully planned to commit to certain persons was thrown to the 1001 winds and waves, and if a fragment came back to the shore he was to be congratulated. Why should these bodies henceforth be called trustees? They appeared to be the only people in a parish not to be trusted. If such a measure were carried he hoped the good sense of England would call them distrustees. It had been gravely argued that the charities were left for the good of the poor, and under the Bill the poor would have a dominant voting power. That meant, the funds would be committed to the administration of the very persons for whose relief they were given. The clause pretended to except ecclesiastical charities; but the notion of ecclesiastical must be reversed, for the clause did not accept any of those charities which were specially committed to the Church in the person of the parson. the persona ecclesia, the very representative of the Church. All these charities which had been committed to the rector were not to be excepted, but he was to have two persons associated with him in the direction of the charities. Henceforth a donor was to have no such discretion as the law had allowed him so long. Henceforth he was to be called "That imbecile the donor." If he committed anything to a trust, the moment his day was over he was to be over-ridden. There was a very serious principle wrapped up in that; the disparagement of the past was always the discouragement of the future. The donor, disparaged in the past, would cease to exist. For the last 300 years there had been an accumulation of most useful and serviceable gifts; but be did not foresee similar bequests and gifts made to the Parish Councils. The clergy had recommended the Bill, and had tried to persuade the people who were difficult to persuade that it would do more good than harm—that it would not do the harm that it was expected to do in some quarters, even if it did not do all the good that it was expected to do in other quarters. He and his colleagues on these matters knew something of the parishes and their working. They wanted to improve the Bill and to remove injustice, which was the greatest reproach to any law. If this clause were passed, it would rivet an injustice on English law for ever, and one which they could not forget was foisted very late into the Bill, 1002 contrary to the very wishes of the persons who conceived and introduced the measure.
§ THE LORD CHANCELLOR (Lord HERSCHELL)The most rev. Prelate says that no reasons have been given by Members of the Government in support of this sub-section. I am afraid that whatever I may advance to the House will still be considered by him as no reason. The most rev. Prelate denounced the subsection as a monstrous one, and I am afraid nothing I can say will alter the most rev. Prelate's conclusion. I fear that the differences between the most rev. Prelate and the Government are very deep—namely, that he has a most absolute and complete distrust of Parish Councils—
§ THE LORD CHANCELLORWhile the Government, on the contrary, ventured to trust them. This clause does not propose any alteration whatever in the trust of any charity. It has been spoken of as unjust—and as if it diverted to some other use that which the donor intended for a particular use; but it does nothing of the kind. It deals solely with the appointment of those who are to administer the charity for the benefit of the poor of a particular parish: and where a charity is intended to meet the wants of a particular parish, that parish is likely to be the best judge of the mode in which the charity can be most effectually used for its benefit within the terms of the trust. The tendency of the Charity Commissioners has recently been to give a preponderating voice to the inhabitants of the parish in the administration of these trusts, and is there the slightest evidence that that has led to any mischief or evil, or acted otherwise than as beneficial in the administration of the trusts? The existing trustees have been spoken of as if in all cases they were the most admirable administrators in the world, but that has not been the result of experience. An impartial Committee of both Houses has in the most emphatic terms declared that the trusts as constituted have not worked well, and that an improvement has been gained by introducing the popular element. I know the House; will say that that docs not necessarily mean a majority. 1003 [Opposition cheers.] Yes; but I am dealing with the arguments of the most rev. Prelate, with all respect, when he speaks about setting aside these trustees when they are doing all that anyone could desire to have done. What I am pointing out is that you have the finding of impartial persons that, I do not say in every case, but as a rule, the existing system has not worked well, and that with the popular element the trusts have worked much better. When you have interfered to that extent you have given up the principle of saying that you have no right to interfere with the constitution of trusts. The principle of non-interference is abandoned, and it becomes a question of expediency and policy to discover how you will get the best administration. I have confidence in the Parish Council—which I suppose many of your Lordships do not share—that they will not act wildly in the matter and appoint improper people to these trusts. I doubt if you could find a Parish Council which would appoint as trustees the people who would be likely to receive the doles, and I do not anticipate the antagonism which has been suggested as likely to exist between the elected trustees and the existing trustees. I do not mean to say that there would not be cases where there would be antagonism, but those would be just the cases where it would be desirable that these trustees should be appointed; and I am satisfied that, in the great majority of cases, the working would be perfectly harmonious between both classes of trustees, and that you would find no such division as is talked about. As I have said, no doubt there would be occasions when such division would be found to exist, and my opinion is that on these occasions it was desirable that there should be a large infusion of the popular element. After all, these benefactions are intended for the good of the parish, and the Parish Council, if it is to be worth anything, ought to be trusted, and can be trusted, to appoint trustees and to manage a purely parochial, non-ecclesiastical charity. If they cannot be trusted with that, the clauses to which your Lordships have already agreed stand condemned, because you have conferred on the Councils powers which ought never to have been conferred on them. 1004 The most rev. Prelate has said the clause is unfair to the donors of the charity. That is an argument not against this legislation, but against the legislation which has been going on for the last 30 or 40 years, and it was the argument used when the Charity Commissioners were first empowered to deal with the charities. It was said, "You ought to leave the trusts just as the testators or donors left them," but all our legislation has been contrary to that principle for a long time, and it is now too well established to be altered. When it only comes to a question of what trustees shall be appointed, I differ from the most rev. Prelate in this—that I take the view that by conferring these powers on the Parish Council you will best secure that that which would have been the intentions of the donors had they been living at the present day will be carried out. The gulf that divides us from the most rev. Prelate is that we have a confidence in the Parish Councils which he docs not possess. The most rev. Prelate declares that this clause is likely to prevent the formation of these trusts in the future. That is a matter of speculation. It depends on the opinion one entertains of how this would work, and how people would be likely to view it. My belief is that it would not deter people in (he future from making benefactions in the parish. These are the reasons why I trust your Lordships will adhere to the clause as it came up to your Lordships' House.
§ THE DUKE OF DEVONSHIREBefore we go to a Division on this question I think it would be interesting and desirable to know what view Her Majesty's Government take of the suggestion which has been made by Lord Belper, because, if the Amendment of the noble Marquess opposite is carried, my noble Friend will have no other opportunity of bringing forward his proposal. I think that the Government ought distinctly to state whether they refuse to consider the proposal and intend to impose upon the Parish Council the obligation to appoint a certain number of trustees whether it wishes to appoint them or not—a number of trustees which, in the opinion of some competent authorities who have discussed the matter in another place, would render the administration of some of these 1005 trusts unworkable. Some information on that point ought to be given by Her Majesty's Government. The noble and learned Lord on the Woolsack has said a great deal as to the implicit confidence he possesses in the prudence and moderation and good conduct of the Parish Councils. My Lords, is it a proof of his confidence in the Parish Councils that he does not allow them an option as to whether they will elect a majority of the trustees of these trusts or not? Unless the Government are going to accept the Amendment suggested by my noble Friend, their attitude seems to mo to be a very curious commentary upon the speech of the noble and learned Lord as to the confidence he feels in the Parish Councils of the future. On the main question I do not intend to say more than a very few words, especially as this is not one of the subjects to which I have given a great deal of attention, or in which I have up to now taken a great-deal of interest; and I must confess that I am not disposed to say much on the subject, because I have no great confidence, and I must add no great satisfaction, in the vote which I propose to give. It is not my business—I am not concerned—to defend the conduct of Her Majesty's Government in another place in relation to this clause, nor can I say much in defence of the clause itself. The only question upon which I entertain any doubt is as to whether the clause raises a question of principle or such other question of vital importance as to make it incumbent upon your Lordships to insist upon your disagreement with the House of Commons. The only question for us seems to me to be whether it does or does not come within the category of those Amendments which, in some observations I made earlier in the evening, I indicated, in my opinion, ought to be treated at this stage rather as matters of expediency than as matters of principle. I confess that I cannot quite understand where the question of principle comes in. The contention that we have no right to interfere with the wishes of the founders or donors of these trusts is intelligible; but that is a position inconsistent with what has been done in the case of the Charity Commissioners, and it is inconsistent with the proposal to appoint one-third of the trustees. The noble Marquess 1006 draws a distinction between the introduction of an elective element and the introduction of an absolute majority upon the trusts. Of course they are different things, but I cannot see that such a distinction amounts to an absolute question of vital principle upon which the House is bound to insist in a manner which, in all probability, would be fatal to this Bill. Although I have not a word to say as to the clause itself, I cannot see that a question of principle is involved in it which makes it imperative upon us to insist on our disagreement with the Commons. I think the Amendment ought to be treated as in the category of those Amendments which we were justified in making in the first instance, but which we are not compelled to make, and therefore it would not be expedient on grounds of honour or principle to insist on any further.
THE EARL OF KIMBERLEYThe noble Duke has appealed to me, or I would not have troubled your Lordships again. With the permission of the House I will answer his appeal. I do not see how the Amendment to which he refers—that of Lord Belper—could be moved, as we are bound to decide the point at issue on the Amendment of the noble Marquess. But I am free to say that I think the suggestion infinitely more acceptable than the Amendment of the noble Marquess.
THE EARL OF KIMBERLEYIt is certainly more acceptable. If the noble Lord were to move it, the Government would certainly give it a less direct negative, inasmuch as I should certainly ask the House to divide against the Amendment of the noble Marquess, but I would not ask your Lordships to divide against the Amendment of the noble Lord.
§ LORD COLCHESTERwas understood to say that from his knowledge of the action of the Charity Commissioners in connection with certain educational charities, it did not follow that because they infused an elective element into the Boards of Trustees they put that element in the majority. He would liken the case of the Parish Councillors to that of the civic dignitary who once said, "Although Mayor of Pevensey I am still but a man." Parish Councillors 1007 would be men, and very often would be elected at contested elections, and would be under the temptation in distributing doles of which they might have the control to the advantage of those people who elected them at the expense of those who did not. He maintained that the proposal of the Government would put on these men a difficult and delicate duty which their knowledge of human nature did not justify. It would be exposing them to the temptation of having recourse to electioneering jobbery.
§ On question? their Lordships divided:—Contents 72; Not-Contents 33.
§ THE MARQUESS OF SALISBURYthen moved to add to the sub-section these words—
If the management of any such charity is vested in a sole trustee, the number of trustees may, with the approval of the Charity Commissioners, be increased to three, one to be nominated by the said trustee and one by the Parish Council or meeting.
§ Amendment agreed to.
§ *THE EARL OF SELBORNEsaid, that if the noble Marquess (Lord Salisbury) had no objection he should like to move the following words as an addition to the sub-section:—
Nothing in this sub-section shall prejudicially affect the power or authority of the Charity Commissioners, under any of the Acts relating to charities, to settle or alter schemes for the better administration of any charity.
§ THE MARQUESS OF SALISBURYsaid, he had no objection to the addition. The limitation of the power of the Parish Councils in the clause was not intended to affect the general jurisdiction of the Charity Commissioners. It would be just as well that these words should appear in the clause.
§ Question, "That those words be there inserted," put, and agreed to.
§ Their Lordships resolved not to insist on a large number of subsequent Amendments, including those making County Councillors ex officio Guardians, declaring that Guardians should be personally rated, and the excision of the clauses with reference to the Loudon Vestries.
*THE BISHOP OF LONDONsaid, he wished to move in Clause 30, which contained special provisions as to Loudon, Lord Colchester 1008 county boroughs, and other urban districts, to insert the following words:—
Provided that for the consideration of affairs of the Church (including the election of Churchwardens) and of matters relating to ecclesiastical charities, separate meetings of the said Vestries shall be held, and that at every such meeting the incumbent, if present, shall be the chairman.As the clause dealing with the London Vestries had now been restored to the Bill, he desired to call attention to an important matter affecting the Church. In the clause were these words—And no person shall ex officio be chairman of any of the said Vestries.The effect of these words would be that the incumbents of London parishes would be put on the same footing as the incumbents of country parishes. But this difference existed: In the country the Vestries were turned out as well as the incumbents, whereas in London the Vestries were kept and the chairmen were turned out. This was inconsistent with the general rule which had been followed throughout the Bill, that ecclesiastical affairs and everything which concerned the Church should be left altogether untouched. If, therefore, the London Vestries were to remain, it seemed to him to follow logically that the chairmanship of the incumbents should remain with them. He did not propose to keep the incumbents as chairmen of the Vestries when they were dealing with secular affairs. The incumbents should stand aside on these occasions; but it would be very hard, when the Vestries were dealing with strictly ecclesiastical matters, that the clergymen should no longer be in a position to preside. He (the Bishop of London) confessed he very much regretted that this dealing with Vestries in London had been proposed. It seemed to him that so important a place as London ought to have had separate consideration. There should have been a special and separate Bill. They ought not to have dealt with such a matter simply by introducing a fragment of a reform into a Bill the general purpose of which was altogether inapplicable to London. However, if Parliament agreed to do it, it was useless for him to express an opinion on the matter. But in regard to the affairs of 1009 the Church, it was really necessary that they should make such a change as he now proposed. The Vestries had considerable power over the Church in regard generally to Church affairs. If anything was required to he done it must be considered by the Vestry, and the Vestry must agree to its legality, or else it could not be carried out. The Churchwardens, who were the officers of the Vestry, had to see that nothing was done which was inconsistent with the law, and all that made the ecclesiastical business of the Vestry of considerable importance. There would not be a great number of such meetings as were contemplated in the Amendment: but whenever the affairs of the Church came up, it seemed to him they ought to have the chief officer of the Church in his proper place. He submitted that it would only be in consonance with the general character of the Bill that they should have this Amendment inserted.
§
Amendment moved,
In the Amendment ON page 27, line.)37, in the words omitted by the Lords and restored by the Commons, page 28, line: 7, after ("Vestries") insert ("Provided that for the consideration of affairs of the Church (including the election of Churchwardens) and of matters relating to ecclesiastical charities, separate meetings of the said Vestries shall be held, and that at every such meeting the incumbent, if present, shall be the chairman"), and after ("Provided") insert ("also").—(The Bishop of London.)
THE EARL OF KIMBERLEYsaid, he could not say that he regarded this Amendment as of very serious importance. He believed he was not wrong in saying that at present, as a rule, although the Rector or Vicar was entitled to take the chair at the Vestry ho seldom availed himself of the privilege. [Cries of dissent.] He had himself been a member of a Vestry for several years, and he had never seen a clergyman there at all, and he knew from friends of his own that in the case in another Vestry the Rector very rarely appeared. He did not think it would be a convenient thing to have two chairmen. Indeed, he should think it would have a tendency to cause confusion, the Vestry not being always a very manageable body. He was not disposed to hail the Amendment with joy, but if the right rev. Prelate persevered with it no doubt he could carry it.
§ VISCOUNT CROSSsaid, ho hoped the right rev. Prelate would persevere with the Amendment. Whether a matter of sentiment or not, it was a matter which would affect the clergyman very much. In the county with which he (Lord Cross) was connected, when secular matters came before the Vestry the clergyman did not attend the meeting at all. When, however, ecclesiastical matters were dealt with he invariably did attend. He did not see what difficulty there could be in having Vestry meetings for ecclesiastical purposes, and when those meetings were held it seemed to him natural that the Incumbent or Rector should take the chair.
LORD BALFOUR OF BURLEIGHsaid, the noble Earl (Lord Kimberley) bad argued the matter as if it referred to Vestries in the country.
THE EARL OF KIMBERLEYNo, I referred to London. I have had the great honour to be a member of a London Vestry for several years.
§ Amendments agreed to.
§ Other Lords Amendments disagreed with by the Commons were considered and not insisted upon.
§
Lords Amendment—
Line 26, leave out from ("buildings") to the end of the paragraph, and insert ("not held in trust for the residence or relief of poor or sick persons therein, or productive of income distributable for the benefit of such persons which, or the ownership, trusteeship, management, or control of which, is by its legal constitution vested in ministers or officers for the time being of any particular Church or Denomination, either alone or jointly with other persons.
The expression 'affairs of the Church' shaft include the distribution of offertories or other collections made in any church").
To this Amendment (with the exception of the last paragraph inserted) the Commons disagreed for the following reason:—Because the Amendment would extend the definition of ecclesiastical charities to buildings which are exclusively used for secular purposes.
*THE ARCHBISHOP OF CANTERBURYMy Lords, the Commons have restored the portion of the Definition Clause, which runs as follows:— 1011
The expression shall also include any building which in the opinion of the Charity Commissioners has been erected or provided within 40 years before the passing of this Act entirely by or at the cost of members of any particular Church or Denomination.Your Lordships will remember that the noble and learned Lord below the Gangway (the Earl of Selborne) moved an Amendment in place of these words. I do not at all give up my belief that the noble Lord's Amendment was right, and that it was a wise and safe provision to make, because the real test as to whose the rooms are, and to whose administration they belong, appears to me to be that of the trusteeship; but, nevertheless, as that Amendment has been rejected by the House of Commons after having been by your Lordships' House adopted after a most careful discussion, I feel content to leave it, hoping that a slight alteration may be made in it, to the judgment of the Charity Commissioners to decide as to the facts. It is a question of fact which is to be referred to them, and they very likely may be the best body to decide it. It appears to me, however, to be unreasonable that a sharp line should be drawn across buildings which the Charity Commissioners are satisfied have been erected at the cost of a particular Church or Denomination, and have been in their keeping and use ever since, because they were built over 40 years ago. The 40 years' limit appears to be a very arbitrary one. I am quite aware that it has been introduced into previous Acts, or that "50 years" has been, but neither date seems to me to carry out any principle of justice. If a building belongs to a particular body it ought to remain theirs. A building which has been erected for 40 years is now to be taken from us or from any other Denomination, whilst a building which has been erected only 39 years is to be allowed to remain in its present keeping. There certainly is no principle in that—at least, I have been unable to discover one. It has been urged on the other side that there are very few buildings which would be affected by the provision, if any at all. I can assure the House that there are a great many of these buildings which have been erected more than 40 years, and which 1012 have been used for all manner of secular and social purposes—for Clothing Clubs and other Clubs and Associations of every kind, as well as for amusements and discussions. I quoted a very strong instance indeed the other evening of a building that was erected over 60 years ago—in the year 1833. It is a parish room in a parish of which I can scarcely pronounce the name, but which is close to Ruthin. The room has been used ever since its construction for such purposes as I have just spoken of. It is built against the churchyard wall, and cannot be reached except by crossing the churchyard. Well, to take that room away from the church would be an exceedingly great hardship. I trust that such a hard line as that of 40 years will not be insisted upon. If these buildings are few the concession we ask for is very small, and if they are over so few in number the proposal of the Commons would still inflict injustice on the parishes. I propose to omit the provision respecting the 40 years, and to substitute the word "mainly" for the word "entirely." In that I think I have almost the assent of the Government expressed both elsewhere and here. It would be impossible, or next to impossible, to prove that any building has been erected entirely at the cost of a particular Denomination, or to show that, 40 or 50 years ago, nobody who was not a Churchman gave a £5 note or a sovereign to it. Such a tiling is impossible of proof, and the sub-section as it stands, therefore, throws all the burden of proof upon the present trustees in a matter which is not susceptible of proof. Many of these buildings have been erected partly by means of money obtained at bazaars. If they are to pass out of our possession because the money has been raised by bazaars, in which all classes of the people have taken an interest and spent money, that again seems to me a most gross injustice. The statement of the noble Earl the Leader of the House (the Earl of Kimberley) the other night was marked by a thorough spirit of fairness. I understand the noble Earl now to say that he will agree to the word "mainly." After that it is not necessary further to quote the noble Earl's words. I therefore conclude by moving my Amendment.
§
Amendment moved,
To leave out the words in line 28, restored by the Commons—namely, ("within 40 years before the passing of this Act entirely"), in order to insert the word ("mainly").—(The Archbishop of Canterbury.)
THE EARL OF KIMBERLEYI am quite unable to agree to the elimination of the 40 years, but I will agree to the substitution of "mainly" for "entirely," with the addition, to which I think the most rev. Prelate does not object, of these words, after"denomination"—
And as to which the Charity Commissioners are satisfied from the terms of the trust that the intention was to place the building under ecclesiastical or denominational management.That would enable the Charity Commissioners to go into the matter and satisfy themselves.
§ *THE EARL OF SELBORNEIf the noble Earl will add to those words something to show that they are not meant to exclude the case of other trustees being joined with the ecclesiastical trustees, I think they might be accepted subject to the question of the 40 years. I cannot conceive, I confess, why the character of a thing should be altered by the fact that it is 40 years old, nor do I think it would be reasonable, because the ecclesiastical trustees are not the only trustees, to say that the trust shall be taken out of the category to which in substance it belongs.
THE EARL OF KIMBERLEYI cannot agree to the elimination of the 40 years, but I will read the sub-section as it would stand supposing the Amendment were put in—
The expression shall also include any building which, in the opinion of the Charity Commissioners, has been erected or provided with in 40 years before the passing of this Act, mainly by or at the cost of any particular Church or Denomination, and as to which the Charity Commissioners are satisfied from the terms of the trust that the intention was to place the building under ecclesiastical or denominational management.
§ *THE EARL OF SELBORNEI think the words "exclusively or otherwise" must be added to make the provision satisfactory.
*THE ARCHBISHOP OF CANTERBURYI think also there is a snare latent in the words, "from the terms of the trust," because the trusts will not always express the intention, and yet the 1014 Commissioners might be satisfied that the intention was there, although it was not expressed in the terms of the trust.
THE EARL OF KIMBERLEYI am afraid that, if those who desire this Amendment are not satisfied to leave it to the Charity Commissioners to determine, I cannot insert any words.
THE ARCHBISHOP OF CANTERBURYWe are quite satisfied to leave it to them, but we say that there is a snare prepared for our feet in the words I have mentioned.
THE BISHOP OF ELYI am curious to know why what has been ours for 40 years should now cease to be ours? I have not yet heard any reason given except that of sic volo sic jubeo.
§ THE LORD CHANCELLOR (Lord HERSCHELL)The practice has always been to deal with what have been regarded as modern trusts in a different way from older trusts. A line has always been drawn between the two.
THE BISHOP OF SALISBURYMay I ask whether 40 years would essentially change the character of a trust?
§ Question, "That this House do not insist on the Amendment with which the Commons disagree," put, and agreed to.
§
On question,
That the words 'within 40 years before the passing of this Act' stand part of the words restored by the Commons,"—(The Archbishop of Canterbury.)
their Lordships divided:—Contents 18; Not-Contents 21.
THE EARL OF KIMBERLEYI will agree to the insertion of "mainly" in place of "entirely."
The word "mainly" substituted for "entirely."
A Committee appointed to prepare Reasons for the Lords insisting on certain of their Amendments and for disagreeing to certain of the Commons Amendments: The Committee to meet forthwith.