Lords Sitting of 26 March 1895

BUSINESS OF THE HOUSE.
Standing Order No. XXXIX. considered (according to Order), and dispensed with for this day's sitting.
CONSOLIDATED FUND (No. 1) BILL.
Read 1a: Then (Standing Order No. XXXIX. having been dispensed with) Bill read 2a; Committee negatived; Bill read 3 a , and passed.
EVIDENCE IN CRIMINAL CASES BILL.— [H.L.]
  EVIDENCE IN CRIMINAL CASES (No. 2) BILL.— [H.L.]
  House in Committee (according to Order): Bills reported without Amendment; and re-committed to the Standing Committee.
  CONVENTION OF ROYAL BURGHS (SCOTLAND) ACT, 1879, AMEND MENT BILL.
  Read 3a (according to Order), with the Amendments, and passed, and returned to the Commons.

  ENDOWED SCHOOLS ACT, 1869, AND AMENDING ACTS (SCHEME FOR THE MANAGEMENT OF HANBURY'S CHARITY, CHURCH LANGTON, LEICESTER).
  VISCOUNT CROSS VISCOUNT CROSS rose to move:—
  "That an humble Address be presented to Her Majesty, praying Her to withhold Her consent from all that part of the scheme of the Charity Commissioners for the Foundation known as Hanbury's Charity which is contained in the following words of the thirty-fourth section: 'In accordance with the principles of the Christian faith, and, in the case of children whoso parents so desire.'"
  He said, it was a pleasure to say that he was not going to oppose the whole scheme, but only a certain portion of it. The House might, perhaps, be somewhat astonished at the words of the Motion, but of course, he had not the remotest wish to prevent the teaching of the Christian faith, but when the scheme was looked at, the House would see how
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  the words applied. The scheme contained these words:—
  "Subject to the provisions of this scheme, religious instruction in accordance with the principles of the Christian faith, and in the case of children whose parents so desire, in accordance with the doctrines of the Church of England, shall be given in the schools under such regulations as shall be made from time to time by the governors."
  If he had his own way, the scheme would then run thus:—
  "Subject to the provisions of this section, religious instruction in accordance with the doctrine of the Church of England shall be given in the schools.…"
  This was the only point which he desired to bring before their Lordships' attention. The Foundation was started by the Rev. William Hanbury, who lived about the middle of last century. He was very much given to gardening and forestry, and he made large gardens and plantations, one of his objects being to employ the money which he might make therefrom in benefiting the Church of England. From a book which he published in 1767, there could be no doubt about his firm and absolute attachment to the Church of England in every form and shape. He did not quite succeed in getting the money which he wanted for the elaborate plan which he had before him, but he had described in the indentures which he executed, how he would devote the money from beginning to end. With the first money which he got, he built an organ in his Church. The schools he did not manage to build for some time, and these were not founded till after his death. He, however, executed trust deeds which clearly proved that he meant these to be Church of England schools and nothing else. It was for this reason that their Lordships were now asked to consider the present Motion. By the original deed, a school was to be built at Church Langton, the boys in which were to
  "meet every Sunday morning to follow the master to Church from the school, two by two, in decent and comely order, and to sit in the galleries provided on each side of the organ, and sing psalms with the same."
  The organist was to
  "attend divine service regularly every Sunday, and instruct the children twice a week in psalmody."

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  Besides this, he was to
  "instruct the children three times a week in psalmody, or oftener, if the trustees see occasion; to learn them to chant the psalms."
  which chanting, Mr. Hanbury was desirous should ever be used in the Church. He was to teach them
  "to sing anthems, that there may be always an anthem by one or more voices after the third Collect for ever."
  He had, therefore, the benefit of the Church at heart, and wished that the boys should be brought up in accordance with the teaching of the Church of England. The noble Lord opposite might suggest that there was nothing in that deed to come within the Act of 1869. He could not help thinking, however, that the Charity Commissioners, when they had the plan before them, omitted to place reliance on one clause in the indenture, because that clause referred them distinctly, in so many words, to an additional deed which incorporated the original deed with the indenture. The additional indenture and deed were called the final and explanatory deed. Turning to the latter, they would find the following clause:—
  "And it is upon this further trust and confidence, that the trustees augment the school at Langton for reading, writing, and accompaniments, and either enlarge it, or erect a separate school on purpose, for the training up such a set number of schoolmasters as may be sufficient to supply those set on foot in other parishes, by the deed called Schools for Ever.… by being trained up in a constant attendance on divine worship.… and well instructed in the grounds und principles of the Christian religion, they may be best qualified to answer the end of this institution."
  In the deed "Schools for Ever," the masters were to put before the boys
  "the nature and horrid sin of schism, the better to keep them steadfast in the Faith and not be tossed about with every wind of doctrine by the craftiness of men, whereby they lie in wait to deceive."
  More express terms could hardly be used to show the clear intention of the founder, not merely to benefit the school of the particular parish of Church Langton, but also all the other parishes of Langton in this particular respect. He thought that the Charity Commissioners had not had the explanatory deed brought specially to their notice. He could quite understand that if the case
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  stood only on the original deed, without the explanatory deed, it might be said—though even in the original deed he thought there was evidence that the founder meant the school to be a Church of England school—that the terms were not so express as to come within the words of the Act of Parliament. But the terms of the explanatory deed clearly showed, in his opinion, that the purpose of the donor was that the school should be a Church of England school, and that the children attending it should be instructed in the doctrines and discipline of that Church. This was the view which Vice Chancellor Kindersley took of the matter in 1863. The school had been worked on those principles to the satisfaction of everyone up to the present time, and he would put it to their Lordships, as a matter of policy, whether it would be wise, under the circumstances, to disturb the existing arrangement, and to act against what was evidently the intention of the founder. He begged to move the Motion that stood on the Paper in his name.
  *LORD MONKSWELLsaid, he thought that the noble Viscount had taken a rather inconvenient course in bringing this matter before their Lordships, inasmuch as if the Charity Commissioners were wrong in their view of Section 19 of the Act of 1869 there was power of appeal for anyone to the Privy Council, who, being conversant with matters of pure law of this kind, were better able to deal with the question than their Lordships in that House, though, of course, their Lordships had the power to strike out of the scheme the words referred to in the Motion if they so determined. The Education Department, however, recognised the Charity Commissioners as the proper authority to draw up a scheme of this nature. It was their business to decide whether an endowment was, or was not, a Church endowment under Section 19 of the Act of 1869, and the Department was not at all inclined to interfere with the Charity Commissioners in such a matter, more particularly as they had had such cases from time to time fully under consideration. The noble Viscount seemed to think that the decision of Vice Chancellor Kindersley in 1864 had a very important bearing on the scheme at the present time. But in

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  deciding on the scheme in 1864 Vice Chancellor Kindersley was in a totally different position from that now occupied by the Charity Commissioners, because in 1864 the Vice Chancellor had not the provision to which reference was made to guide him. That provision was not passed until 1869. The Vice Chancellor had then to take into consideration everything bearing on the matter, whether by implication, express terms, or otherwise, and to make the best intereption he could of what might have been the intention of the testator; and it might be that their Lordships, taking everything into consideration, would come to the same conclusion as he did—that the balance of probability was that the testator intended the school to be a Church of England school. But the Act of 1869 entirely altered this state of things, and what the Charity Commissioners had to consider was a different matter. They had to consider whether this endowment was a Church endowment within the meaning of Section 19 of the Act of 1869, as amended by the Act of 1873, and those Acts required the use of express words to constitute such an endowment. When the testator executed this deed it was not at all uncommon for the founders of charitable trusts to insert in express words the desire that the school proposed to be founded should be a school in which the doctrines of the Church of England should be taught. But in this case the founder did nothing of the kind. In several places in the deed he mentioned the Christian religion and the subject of religious education, but he nowhere mentioned education according to the formularies of the Church of England, or of any particular Church. The object of the Act of 1869 was to widen the efficacy of charitable endowments, but the effect of the Motion would be to restrict them by not permitting provision to be made for the religious education of any Nonconformist child. The noble Viscount suggested that religious instruction must be given in the school according to the formularies of the Church of England or none at all. That the Act of 1869 put this trust in a totally different position from that which it previously occupied was clear from the judgment of the
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  Privy Council in the case of the Shoreditch Parochial Schools, as delivered by Lord Selborne in 1884. Lord Selborne said—
  "It is impossible to read the 19th section of the Act of 1869 without being struck by the care and anxiety which the Legislature has exhibited there to prevent denominational restrictions from being applied to any school, or to which there was not demonstrative evidence that the original founders of the school had not only formed, but expressed, an intention that the children should be instructed according to the doctrines or formularies of a particular Church, sect, or denomination, or, in the added words of the later Act, should be members of a particular Church, sect, or denomination. It is impossible not to be struck by the anxiety which the Legislature has displayed to exclude not only every uncertain, but also every nearly probable implication from practice alone of such an intention; for it is required, first of all, that the denominational purposes should be manifested by the express terms, either of the original instrument of foundation, or of some other Statutes or Regulations.… The Legislature, by requiring 'express terms,' going for the present no further, has manifested a clear intention to exclude more implication."
  The noble Viscount seemed to think that the explanatory deed could not have been laid before the Charity Commissioners, as if they had formulated the scheme without taking the trouble to examine an important document in the case. But the Commissioners had this deed before them, and in that, as in all other documents relating to the trust, they found that nothing had been said about teaching the formularies of the Church of England. What the Charity Commissioners said was this—and the point might be tested before the Privy Council—that under the Act of Parliament there must be express terms referring to the formularies of a particular Church, and in the deeds in question nothing of the sort was to be found. Therefore, whatever might have been the intention of the testator in this instance—and he did not deny that the testator probably intended the school to be a Church of England school—the Act of 1869 absolutely barred the way, because there was an absence in the deeds of the necessary express terms. He wished to refer to one point. In cases of this kind, in which it was probable that the testator, a clergyman of the Church of England, intended to found a school in connection with that Church, but in which the express terms of the Act of 1869 prevented the

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  endowment being treated as a Church endowment, the Charity Commissioners took this course—they inserted a special clause, which was to be found in this scheme, enabling any child whose parents desired him to be taught in the formularies of the Church of England to be so taught, and the only effect of striking out the words objected to by the noble Viscount would be to prevent Nonconformist children from securing any similar religious instruction in this school. The clause was one which had been found to work well, and was generally known as the Sir James Hill compromise, and he hoped their Lordships would not strike the words out.
  THE MARQUESS OF SALISBURYsaid, that if the noble Lord was arguing in favour of the Nonconformist denomination he could congratulate him upon having used casuistry which would have been worthy of a totally different school of theology, and Suasez or Escobar would not have interpreted the matter with which he had dealt in a more subtle or startling fashion. The Act of Parliament said that the scheme was excepted from the foregoing provision if it related to any educational endowment, the scholars educated by which were, in the opinion of the Commissioners, requires by the express terms of the original instruction of the Foundation or of the Statutes, to learn, or to be instructed according to the doctrines or formularies of any particular Church, sect, or de nomination. There was another very important provision in the Act, which was that either House of Parliament had the power of arresting any scheme which in their opinion it was not expedient should pass. Obviously, when such a saving clause as that was introduced into an Act, it was not necessary to watch so carefully over the meaning of the words. What was reqnired? In the first place the children were to
  "meet at the school every Sunday morning, and also again after dinner, to follow him to Church two by two."
  What did the noble Lord suppose they were taught at Church? The doctrines of the Church itself, or of some other Church? That the Church of England was meant was shown by the fact that
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  further on it was said that the organist should
  "learn them, or such of them as have the best ears and voices to sing anthems, that there may be always an anthem, by one or more voices, after the third Collect, forever."
  THE SECRETARY OF STATE FOR FOREIGN AFFAIRS(The Earl of KIMBERLEY): That is the additional deed, is it not?
  THE MARQUESS OF SALISBURYsaid, it was the original one. In the additional deed the schoolmaster was directed to lay before the children "the nature and horrid sin of schism." Did the noble Lord think it was Mahommedanism or Buddhism that was referred to when the founder said the schoolmaster should enforce upon the children "the duty of unity in the Church?" What could it mean but the doctrines, the formularies of the Church of England? The deed continued to say,
  "the better to keep them steadfast in the faith, and not to be tossed about with every wind of doctrine by the craftiness of those who lie in wait to deceive."
  In another Foundation they found a still further indication of the meaning of the founder. In reference to the printing office which he established at the same, time he said—
  "The deed of trust … after requiring such works to be printed as "Thomas à Kempis," "Taylor's Holy Living and Dying," and many other devotional works of a high standard of churchmanship, goes on 'to preserve the members of the Church from falling into the dreadful sin of schism, let there be dispersed 'Well Against the Dissenters,' and the best and useful compendious treatises, on sermons only, against the different sectaries.'"
  This was not an ancient Foundation; the Foundation was in the middle of the last century, and the words showed as clearly as possible what the testator meant. There were express terms requiring the children to learn according to the doctrines of the Church of England, and the power of supervision given to the two Houses of Parliament would be absolutely useless if they did not interfere in this case to protect the schools and the foundations from the most extravagant interpretation which had been put upon them by the Charity Commissioners, not, he suspected, at 'their own instance, but under the tremendous pressure that was brought to bear upon them by the Council of Education.
  THE LORD CHANCELLOR (LORD HERSCHELL)said, when a similar Motion was made by the noble Viscount with reference to another school, he pointed out what appeared to be the then very strong objection to the matter being determined by the House, and not determined by the tribunal which the Statute constituted for the purpose. Since he made those observations his opinion had been strongly confirmed, because he had learnt, he believed on good authority, that on that occasion the House acted upon statements made, he had no doubt, by the noble Viscount in the best of faith—which were very far from accurately representing the facts.
  THE MARQUESS OF SALISBURYsubmitted that a statement of this kind should be accompanied by proper details, and should not be brought forward in a haphazard manner.
  THE LORD CHANCELLORsaid, he did not charge the noble Viscount with any want of good faith, and he could set no impropriety in making a statement of that sort.
  VISCOUNT CROSSsaid, he had never heard a single word from the noble Lord on the Woolsack on the subject since the occasion referred to, and he thought he had a right to be told that the matter was going to be brought forward.
  THE LORD CHANCELLORsaid, he was very sorry if the noble Viscount considered he had made any personal charge against him, and he had not intended anything of the sort. He thought he was perfectly justified in using the expression he did, and he alluded to the matter in perfect good faith. On an occasion when a matter of this sort was being considered, they were obliged to act upon ex parte statements, and this, at least, he was entitled to say, that such statements might not always be related in good faith to the person who made use of them. The Legislature in the present case had imposed an absolute obligation upon the Charity Commissioners. Nothing could be clearer than that, unless, in the opinion of the Commissioners, or the Privy Council, the express trust required it, the Statute provided that the scheme should have the conscience clause in.
  THE ARCHBISHOP OF CANTERBURYsaid, the scheme had the conscience
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  clause in, and it was not proposed to remove it, he understood.
  THE LORD CHANCELLORsaid, this provision was something in a sense more favourable to the Church than the conscience clause, but there was no obligation to make the provisions which the noble Viscount wished unless it was an excepted scheme; and the excepted schemes were only those where, either in the opinion of the Commissioners or the Privy Council, it was required by the express terms of the Foundation that the formularies of the Church should be taught. The noble Marquess said that they need not look very particularly at the words used in that section, because that House had the power in its hands to deal with the matter. It seemed to him that that was a very dangerous argument. What had been mainly relied on was not the instrument of foundation, but deeds showing the contemplation of further schools. But Parliament said they had no business to look beyond the deed of foundation.
  VISCOUNT CROSSsaid, the words he had referred to were in the original deed:—
  "In further trust and confidence as to other regulations, the Trustees submit a deed now, at this time executed, called an explanatory deed, setting forth the final intentions of the founder in oppportuning the different Charities now founded."
  THE LORD CHANCELLORasked, how could one argue a legal question like this unless one compared the documents and considered the language used? It seemed to him that that House was not the proper tribunal to which to address an argument of that description. But the importance of this discussion was, that it should be clearly understood that every protection with which this Act fenced Educational Endowments to to secure the rights of Nonconformists were absolutely valueless, because this House, by its vote, could, and often did, set them aside.
  *LORD HALSBURYsaid, the preamble of the noble and learned Lord's speech was absolutely irrelevant. Whatever the House had done was not now in question. The question that had arisen was short, though he would not say it was clear, because, although the Lord Chancellor had not expressed any opinion

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  of his own, by the tone of his observations, he appeared to differ from the interpretation placed on the words by the noble Viscount. He, himself, did not deny that the Statute they had been dealing with required that the terms of the original instrument of foundation, or the Statutes, or Regulations made by the founder must expressly make the school a Church School. But where three instruments were referred to by a founder, the three must be taken together, if, as in this case, they referred to each other. He had never heard that principle questioned, and he doubted whether the Lord Chancellor, in his judicial capacity, would express any doubt about it. The Statute said:—"Are required to learn or to be instructed according to the doctrines—." He paused, there, to point out that the noble Lord opposite, and, following his example, the Lord Chancellor omitted those words, and always referred to formularies. They must take both, and see whether either would satisfy the requirements. No one could have the smallest doubt in the world what the original settle meant. Suppose some Nonconformist school were established, and children were required to go to "the Church," would it not be said they were being, contrary to the wishes of their parents, taught the doctrines of the Church of England? When a clergyman, founding a school in the middle of the last century, propounded the statement that the sin of schism was a horrid one, from which children were to be guarded, and spoke about "the Church," did any human being pretend that he could have meant anything else than the Church of England? The point was absolutely unarguable. So much for the language of the Statute, which expressly, and not by inference, required the children to attend the Church. But then it was said a dangerous doctrine was introduced by the noble Marquess behind him, that the House had an over-ruling power. So it had. The Lord Chancellor had made an impassioned attack on that power. Both Houses had this overruling power, and had exercised it. The Lord Chancellor said they must not do so, for they were interfering with Nonconformist rights. The noble and learned Lord seemed to have no
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  notion of any rights but Nonconformist rights. The rights of the Church of England were to be protected also, and were intended to be preserved, not only by the Privy Council, but by the superior authority of the Houses of Parliament. If the House was not to discuss it, but it must go to the Privy Council, he did not understand what the object of the Sections in the Act of Parliament referred to was.
  THE LORD CHANCELLOR: There are a great many things which cannot go to the Privy Council.
  *LORD HALSBURY: That was true. The language of the Act of Parliament, however, was absolutely general, and did not except such things as might go to the Privy Council. If either House of Parliament chose to intervene, the scheme could not go forward. There was a conscience clause in this scheme, and if the scheme were amended according to the view of the noble Viscount, the conscience clause would remain as ample as it could be. The only object of the noble Viscount was, that Church of England Schools should be preserved in their character.
  THE SECRETARY OF STATE FOR FOREIGN AFFAIRS(The Earl of KIMBERLEY)said, he thought the speech they had just heard justified the line taken, by the Lord Chancellor. He had discussed the matter with the acumen and knowledge which, from his high position in the legal profession, they expected from him. But the point the Government took was that this was a question of law, and it should be properly discussed before a legal tribunal. When the noble and learned Lord pointed to the power given by the Act of Parliament to both Houses, he would say the power was given with regard to everything in the scheme. There was also provided an appeal to the Privy Council, and he supposed the promoters of the Act supposed that these powers would be exercised with a certain amount of discretion. It was a question of discretion, and, in his humble judgment, it was a great indiscretion on the part of this House to exercise the power on a question which was eminently for the legal tribunal provided in the Act. There was no authoritative decision in the matter even if the House threw out this particular clause. They might

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  make an Amendment, and the Charity Commissioners might be afraid, in future, to put a clause into one of their schemes, although they might be convinced that it was their duty, because they knew he majority of the House could do exactly what they pleased, and that they would decide the matter as they thought right. It would be better, in the interests of all concerned, that a matter of the kind should be decided by the Privy Council. That decision would govern all the decisions of the Charity Commissioners afterwards, and the matter would be placed beyond all doubt. Undoubtedly, in asking questions of this kind, nice points might arise, because they had to deal with the clear, plain provision that there were to be special words used indicating the founders' intention. The noble and learned Lord said no human being could doubt the meaning of the words used. But the Charity Commissioners were human beings. The noble and learned Lord said the words were to be interpreted by common sense. That was exactly what was proposed. Some points of law were much better not decided by common sense. Certainly, there were many points of law, which, if decided by appeals to common sense, would be decided otherwise than as they ought to be. It was not a convenient thing to apply the principles of common sense to a point of law, which could be argued before the tribunal which the Act of Parliament had distinctly provided. If the words of the Act were against common sense, and if the decision of the tribunal, deciding according to law, was, in their opinion, at variance with the common sense of the matter, what was the proper course to take? Why, to amend the Act, and make it agree with the principle and policy they thought best. This House was eminently qualified to decide the matter on a question which was not one of law; but the question raised was one of mere law, and it was exceedingly dangerous that they should decide such a question simply according to what their predilections might be. It was quite likely that he might be biassed in his general view, and that it would not agree with that of the noble Marquess opposite, who might quite conscientiously have an equally strong bias the other way. On a matter of that kind
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  they wanted a perfectly impartial opinion, to be given by persons who would look at the matter simply and solely with regard to the intentions of the Act, as interpreted by persons competent to interpret it; and that was the reason why he deprecated that the House should, come to a decision in the sense proposed by the noble Viscount opposite.
  The House divided: Contents—42; Non-contents—18.
  The House adjourned at Twenty minutes before Seven o'clock.