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Volume 203: debated on Tuesday 26 July 1870

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, in rising to move the Resolution of which he had given Notice, said, that early in the Session the proposed new statutes for constituting the Governing Bodies of five of our great public schools were laid on the Table of the House, when it was found that in regard to all five of those schools the statutes attached the qualification of membership in the Church of England as a condition to holding a position in the Governing Bodies. An Address to the Crown was adopted on the subject by that House, the result of which was that the Public Schools Commissioners re-considered the matter, and removed that objectionable restriction in regard to three of the schools, but retained it in respect to Winchester and Harrow. In answer to a Question put to him about a fortnight ago, the Solicitor General stated that in the case of Winchester the Commissioners had ascertained that from the passing of the Act of Uniformity to the present day it had always been deemed that a Church of England character was distinctly impressed upon the school. As that school dated from long before the Reformation, and its character must have necessarily been re-moulded at that epoch, it might very well undergo further re-moulding in the present century, to adapt it to the requirements of modern, thought. But if they were indebted for the restriction complained of to the Act of Uniformity, that was only one of the various evil consequences flowing from the passing of that Act. In the case of Harrow, the Commissioners appeared to have made an inquiry to ascertain whether that school came under the terms of the Endowed Schools Act of 1869, under which schools Were to be exempted from what he might call the Conscience Clause for all endowed schools under that Bill, provided they were able to show that certain religious doctrines and formularies had been observed in the school down to the passing of that Bill. The hon. Gentleman then proceeded to quote the opinions of Dr. Vaughan and Dr. Butler—the one the former and the other the present Head Master of Harrow — to show that although, in answer to the questions put to them by the Commissioners, those gentlemen had admitted generally that, in point of fact, Harrow had been a Church of England school, yet in their view the adoption of a religious test in regard to members of the Governing Body was impolitic in the present day, and also injurious to the interests of the Established Church itself. Dr. Butler, in a recent letter to The Times, said that no religious test had been imposed on the members of the Governing Body of Harrow, although no doubt, in fact, all the members had belonged to the Established Church; and Dr. Vaughan had avowed his conviction that that Church in the long run was always a gainer by the largest possible comprehension. He did not mean to cast any reflection on the conduct of the Commissioners themselves; but if the Act of Parliament was at fault means should be taken to place these schools on a footing similar to that of the other great public schools. The hon. Member concluded by moving his Resolution.

Amendment proposed,

To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, it is inexpedient that the Revised Statutes for the constitution of the new Governing Bodies of Harrow and Winchester Schools should require that any person, in order to be qualified to be elected or nominated a member of the Governing Bodies, must be a member of the Church of England,"—(Mr. Stevenson,)

—instead thereof.

said, that he was sorry that it fell to his lot to address the House, because with the spirit of the Resolution he entirely concurred. If he were asked whether, in his judgment, it was expedient that this restriction should have been placed upon the Governing Body of any school, he should unhesitatingly say that it was inexpedient; and, for his part, he should never concur, as a matter of wisdom and expediency, in the introduction of this restriction upon any Governing Body of any school. But he must point out that this was not the question which they had to consider; they had not to consider what was expedient, but what were the duties that the statute imposed upon those who had to act under it. He had never disguised his own wish upon the subject; but he considered that, as a Commissioner, he had no business to act upon his own opinion, and had simply to ascertain what was the state of the law which he had to put into practice. A Resolution of the House of Commons could not change the law; and if the law were as he should put it, then it followed that the Commissioners could not disregard it. Down to the present time the Governing Body of Harrow had been of an exclusive character, and he maintained that by the present law that exclusive character must be maintained. His contention was this—that the two schools were within the exception in the 19th section of the last Act; and the Uniformity Act further supported the conclusion to which he had arrived. He was personally no party to the arrangement which imposed the restriction upon the two Governing Bodies; he was not present at the meetings of the Commissioners, and had nothing to do with what was determined upon. He must, however, repeat that the Commissioners were bound by the law to act as they had acted, and any Resolution of the House against their determination would not be operative.

admitted, as a matter of course, that if there was a statutory obligation upon the Com missioners then this Motion would be open to the criticism of the Solicitor General; but, with very great and unfeigned respect for his hon. and learned Friend, he must dispute the conclusion which he had arrived at. He (Mr. Winterbotham) contended that there was no statutory obligation upon the Commissioners to do as they had done; but, on the contrary, there was a statutory obligation upon them not to do it. He was quite clear that this was the true construction of the statute, and further, that it was so understood by the Vice President of the Council when the Act was passed. The Commissioners had inserted a clause restricting the Governing Bodies of Winchester and Harrow to members of the Church of England, and he contended that they were not bound to insert any such provision. The 17th clause said that in the case of undenominational schools there should be a positive provision against restriction, and then the 19th clause excepted certain schools. The Commissioners, therefore, were bound, in the case of undenominational schools, to insert a positive provision against restriction; but they were not bound to insert any restriction in the case of any schools whatever. Even if Winchester and Harrow were held to be denominational schools, the introduction of the restrictive provision would be perfectly gratuitous upon the part of the Commissioners, and they would have taken a positive retrograde step which was not countenanced by the Act. But he went further, and argued that neither Winchester nor Harrow was within the exception in the 19th clause. Winchester was a pre-Reformation endowment, and would certainly be a national endowment but for the Act of Uniformity; but his hon. and learned Friend having misread the 19th clause, brought in the Act of Uniformity to help him. The exceptions in the 19th clause referred to schools maintained from the endowments of any cathedral or collegiate church; and, secondly, to schools where the scholars were required by the terms of the original instrument of foundation, or the terms of the statutes—and statutes which had been observed down to the commencement of this Act—to be instructed according to the formularies of any particular Church. He contended that neither of the schools came within either of these exceptions; and therefore he thought that the House should pass this Resolution. If there were a statutory obligation upon the Commissioners, the worst would be that this Resolution would have no effect; but if, on the Other hand, Winchester and Harrow were not within these exceptions, then this Resolution would have the effect of directing the Commissioners to carry it out. As to Winchester, his contention was that it was not a cathedral or collegiate school; and as to Harrow, that had hitherto been administered liberally, and they were now narrowing its action in a way that was not obligatory upon them by any Act.

reminded hon. Members that those statutes had not as yet arrived at a definite form. The process was not yet completed, and it would be very inconvenient for the House to express a judicial opinion, which it was almost impossible to express, upon a matter that was not as vet decided.

But the statutes are on the Table, and, consequently, the House is in a position to express an opinion upon any of the provisions contained therein.

said, he wished to explain how those statutes were laid before the House. Under the Endowed Schools Act schemes had to be framed by the Commissioners, approved by the Government, and laid on the Table for assent or dissent—all the process being complete before the schemes were submitted to the House. The House might then, if inclined, dissent from a scheme which it knew to be approved by all the Executive authorities called in to assist in framing that scheme. But that was not the position in which they were now. Statutes had been drawn up by the Public Schools Commissioners in regard to those schools, which had been laid upon the Table. Objections had been made to those statutes as applying to five schools, and they were referred back to the Commissioners. In consequence of that state of things the House, at the instance of the right hon. and learned Gentleman (Mr. Russell Gurney), assented to an Address, remitting back to the Commissioners those statutes for reconsideration. The Commissioners did reconsider them, and they again framed statutes, which were laid upon the Table of the House. Those statutes, however, had not as yet come before the Privy Council, because the time allowed by the Act before they go before the Privy Council had not yet elapsed. When the statutes did come before the Privy Council it would be their business to thoroughly weigh all that had been said by his hon. and learned Friend the Solicitor General, who had spoken as one of the Commissioners, and by his hon. Friend the Member for Stroud (Mr. Winterbotham). It was impossible for him to say what would be the decision of the Privy Council when the question came before them. When, after his experience in connection with, the Committee for Public Schools, as a Church of England School Commissioner, and a framer of the Endowed Schools Act, he now declared he could not say which of his hon. Friends was right in respect of this matter, he thought it must be admitted that it would be rather difficult for the House to arrive at a judicial decision upon it. He thought it would be better to leave the matter in the hands of the Government to decide upon their responsibility whether they would approve of the statutes or not; and if they were appoved of, and any objection afterwards taken to them, the House might be again appealed to on the subject. The question was of importance chiefly to the two schools of Winchester and Harrow; and he thought that if the proposed Address were agreed to, and the Commissioners were called upon to consider the statutes in reference to the Endowed Schools Act, the result would be to cast upon them the duty of giving an interpretation to the Act. The importance of establishing any precedent in the matter would be keenly felt by the Government in their examination of the question.

said, when the right hon. Gentleman who had just sat down and the Solicitor General were compelled to resort to such weak arguments he thought their case must be a very weak one, and that of the hon. Member who moved the Address (Mr. Stevenson) a very strong one. In reply to the technical and legal arguments of the Solicitor General, the answer of the hon. Member for Stroud (Mr. Winterbotham) was triumphant and complete; and in reference to the observations of the right hon. Gentleman the Vice President, he (Mr. Fawcett) would ask whether the placing on the Table of those statutes was to be considered by the House as a mere idle form? Were the Privy Council to consider those statutes without any guidance from the declared opinions of that House? It seemed to him that the reason why those statutes had been placed upon the Table was to afford Parliament the opportunity of expressing an opinion upon any of the provisions contained therein; and if the House should accept the Motion of the hon. Member for South Shields there would be an additional reason why the Privy Council should not allow that restriction in regard to the schools of Harrow and Winchester to continue. He had received letters from some of the masters of Harrow, who, though members of the Church of England, declared unanimously against this restriction, which they said would act injuriously even to the Church of England schools. He (Mr. Fawcett) viewed this restriction as inexpedient, unjust, and unnecessary.

said, he hoped the House would act cautiously before they proceeded in the course recommended by the hon. Member for South Shields (Mr. Stevenson). He was quite sure that the House did not wish to proceed in an unconstitutional manner; but he (Mr. Newdegate) had been advised, on authority that no one could overlook, that in the matter of the Address which the House had agreed to, and in accordance with which an alteration had been made in the statute for Rugby School, the House had acted, not only in an unconstitutional manner, but positively illegally. He trusted that the House would not proceed further in so doubtful a course as that with respect to the statutes for the other public schools, until they had the assurance or judicial decision from the Privy Council, or from a Court of Law, or from both, as to the legality of this course. He had termed those proceedings unconstitutional, because he conceived it was the intention of Parliament, when it directed those statutes to be laid before it, that the same course should be adopted in respect to them which was adopted by the House of Lords in respect to Money Bills—namely, that either House of Parliament, or both, should sanction or reject each statute as a whole. What had the House been led into? It had invited the Commissioners to import into the statute for Rugby the principle of a subsequent statute from which, they derived no power whatever. What was more, the very reference he had heard made to the 19th clause of the Endowed Schools Act of 1869 showed him that the hon. Member for Stroud was inviting the House to insist, as far as they could, on the Public Schools Commissioners, the whole of whose powers were derived from the statute of 1868, adopting the provisions of the 19th clause of the statute of 1869, although the Public Schools Commissioners had nothing whatever to do with those provisions or with that statute. It appeared to him that this was a most unconstitutional course, and he trusted that the Government would not sanction any further proceedings in that direction. The Motion involved the question, whether that House was to adopt per se, as a single Chamber, a new mode of legislation without reference to the other House of Parliament. He submitted that such a course would, if adopted, be vicious and unconstitutional.

said, that within his recollection the late Lord Aberdeen was a Governor of Harrow School; but the noble Lord, who was a member of the Church of Scotland, could never have become a Governor if the restriction, which was introduced by the Commissioners, had then existed. In his opinion, his hon. Friend the Member for Stroud (Mr. Winterbotham) had entirely disposed of the arguments of the Solicitor General. The Vice President had asked the House not to interfere, because these statutes had not been before the Privy Council; but if the House was not to say whether they thought the restriction inexpedient or otherwise, why had it been enacted that the approval of the Queen to the statutes should not be signified until after they had been on the Tables of both Houses of Parliament for 40 days? The object of the framers of the Act he took to be that Parliament should have the power, if they were so minded, of expressing an opinion on the subject for the guidance of Her Majesty in Council. The right hon. Gentleman had said that opinions had been gathered; but he would remind him that spoken opinions were not like Resolutions of the House of Commons. Some such Resolution as that proposed by the hon. Member for South Shields (Mr. Steven son) ought to be put on record, and, therefore, he should vote for it.

said, that if a vote were taken on this question he should go into the Lobby with the hon. Member for South Shields (Mr. Stevenson), for, in his opinion, if there was any fault to be found with the Resolution, it was that it did not go far enough, in not including Eton and Westminster. The question before the House was simply whether the restriction as to the Governing Bodies of the two great schools was expedient or not; but the speech of the hon. Member for Stroud (Mr. Winterbotham) was directed to a wholly different issue—namely, whether the Commissioners had correctly interpreted the 19th clause of the Endowed Schools Act, a question which to a great extent depended on the provisions of the will under which Harrow School was endowed. If the hon. Member for Stroud had consulted that document he thought he would have come to a different conclusion. He contended that the Public Schools Commissioners had shown no spirit of illiberality in those matters. They had simply followed the recommendations of the previous School Commissioners, one of which recommendations was that the members of the Governing Body should be members of the Church of England. It was a grave question whether the Commissioners would have been justified in taking any other course than that which they had actually adopted. He was disposed to take an opposite course, and had endeavoured to persuade his brother Commissioners not to introduce this clause into the statutes; but, regarding the instructions that were before them, he did not think they could be blamed for the course they had pursued. Seeing that the Commissioners had been attacked by Members from both sides of the House, he consoled himself with the reflection that that fact was of itself evidence that they had performed their duties with a spirit of impartiality and fairness.

said, that if it was intended to go to a Division upon this subject it was material to examine the words which it was proposed to affirm. They were—

"That, in the opinion of this House, it is inexpedient that the Revised Statutes for the constitution of the new Governing Bodies of Harrow and Winchester Schools should require," &c.
Now, he wished to call particular attention to the word "inexpedient." It appeared to him that that was an ambiguous word, and that its effect was to substitute a false issue for the true one. The question of expediency or otherwise was of a general character; it overlooked the existence of certain laws, and referred them to the principle of policy. But if they were simply to determine the question on the principle of policy, his hon. and learned Friend the Solicitor General had already intimated his opinion to be in favour of it. But, supposing that the House approved of the Resolution, and that it came under the notice of the Privy Council, it appeared to him that they could take no notice of it, and that it could have no weight with them. Their business at present was to proceed according to certain Acts of Parliament, and not in accordance with their particular notions of policy. The two questions were as distinct as cast and west, or night and day. The proposition of the hon. Member for Stroud (Mr. Winterbotham) was in effect to review the proceedings of the Commissioners, and to submit their opinions for the consideration of the Privy Council. But if they were to do that, they must not declare an Act expedient or otherwise; but declare that the Commissioners had mistaken the instructions under which they were to act, and had consequently arrived at a wrong decision. Whether the House ought to say that what the Commissioners had done was inexpedient was another matter altogether, and he must own that they were placed in a position of very great difficulty. The case of Harrow was this—that the instruction in the statutes was that the scholars should be instructed "in Nowell's Catechism, or such like work." They had not been instructed in Nowell's Catechism, and, therefore, the hon. Member for Stroud argued that they did not come within the meaning of the Act; but the question was, whether they had been instructed in any similar work, and he understood they had been constantly instructed in the Church Catechism, which was clearly a "such-like work." When he was at Eton he could not recollect receiving instruction in Noel's Catechism, nor indeed in any particular catechism. He was bound to say he believed that the Commissioners had proceeded according to the spirit of the Act. It was impossible to doubt that the injunctions of the founder had been obeyed in the case of Harrow. For his own part, he owned he could not see a loop-hole in the argument. There was another point, with respect to the personal qualification of the Governors, and it was said that a new qualification had been introduced by the Commissioners—namely, that the members of the Governing Body must be members of the Church of England. He supposed the Commissioners considered whether Harrow ought to be treated as a Church of England school, and if so, whether the members of the Governing Body should be members of the Church of England. The House were perfectly entitled to give an opinion upon the proceedings of the Commissioners, but not as to the expediency of what the Commissioners had done, for it was quite possible that a thing might be inexpedient in itself, and yet have been the right thing for them to do. The Privy Council, he would suggest, was the best place in which this matter could be raised and decided, for they could consider impartially, and with full information, whether the Commissioners had rightly discharged their duty. For such a function the House of Commons was much less qualified, and in any case they were not called upon to act, for the words of the Resolution were not relevant to the purpose which the Resolution itself had in view.

Question put, "That the words proposed to be left out stand part of the Question."

The House divided: — Ayes 85; Noes 73: Majority 12.