SECOND READING. (Hansard, 15 March 1861)

§ LORD CRANWORTH,
in moving the 2039 second reading of the Charitable Uses Bill said, it was similar to one which he introduced into their Lordship's House last Session, except that the present Bill did not contain some provisions which were then very generally objected to. Their Lordships were aware that by an Act passed in the reign of George II., at the instance of the Earl of Hardwicke, and commonly though not very accurately called the Mortmain Act, persons who proposed to give lands to charitable uses were prevented doing so except in the mode provided for by that statute. That Act, after reciting the public and private injury done by persons devising when in a dying or languishing condition their land for charitable uses, provided that no lands or money to be laid out in the purchase of lands should be devoted to charitable purposes by will or in any other manner except as pointed out by the statute. The statute provided several safe-guards, some of form and some of substance. It provided that every disposition should be made by deed indented, sealed, and delivered in the presence of two creditable witnesses; that it should be executed twelve months before the death of the donor; that it should be enrolled within six months after its extension; and that it should take effect in possession immediately on execution. It provided further, that there should be no power of revocation or reservation whatsoever for the benefit of the donor or grantor. He (Lord Cranworth) did not propose to go into the policy of the Act. Some thought it too stringent, and others not stringent enough; but he thought every one would agree that there ought to be no unnecessary restriction, provided all the proper provisions of the law were carried out. The first restriction was that the deed should be executed at least twelve months before the death of the donor, that provision he did not propose to alter. The next was that it should convey the right of immediate possession, which he also thought useful. The next provision was that the deed should be indented and enrolled. He did not propose to interfere with the enrolment, which was done in the High Court of Chancery; but he proposed to repeal the provision which made a deed for charitable uses void by reason of its not being indented. One of the precautions introduced into the Mortmain Act was that there should be no reservation of any sort or kind in favour of the 2040 grantor. That was very right where the person gave his property out of pure charity; but the case was very different where parties purchased land for valuable consideration. He could assure their Lordships that this was a case which required the interference of the Legislature. What he proposed was that no future deed should be void by reason of its not being indented, nor by reason of its containing any reservation of a nominal rent, or of mines, minerals, or casements, covenants for repair of roads, or the like things, which might reasonably be allowed. It also provided that no conveyance of a copyhold for charitable uses should be void by reason of its not being made by deed. He was, as all persons and especially lawyers were, averse to retrospective legislation; but there might be exceptions to the rule, and he had the precedents of the 9th Geo. IV. and the 4th and 5th of the Queen, for what he next proposed to do. He proposed to enact that no deed under which any possession is now held for charitable uses of any estate or interest, made for valuable consideration, shall be void for any reason, provided such deed was made to take effect in possession, was without power of revocation, and either has been enrolled, or shall be enrolled within twelve months after the passing of this Act. Upon the whole he was very confident that his propositions were entitled to the favourable consideration of their Lordships.

THE LORD CHANCELLOR
said, he would offer no opposition to the second reading of the Bill; but with great and sincere respect for his noble and learned Friend he did not view the clauses of this Bill with any satisfaction. He would not make any comment upon the measure, further than to say that it would require great amendment in Committee. When the subject was under discussion last year he was in hopes that his noble and learned Friend would have undertaken a task worthy of his great abilities—a comprehensive reform of the Law of Mortmain—which was now in a most defective and lamentable condition. As the noble and learned Lord had most justly observed dying persons ought to be protected from improper influences and importunities; but the noble and learned Lord had confined his case to those only who had land, and had taken no heed of those who had large pecuniary fortunes to bestow. As 2041 the law at present stood a testator could not leave a perch of land to charitable purposes, but he might bequeath a million of money. He was sorry to say that this state of the law offered every facility to unscrupulous persons to induce dying persons to dispose of large sums of money when they were not in the full possession of their faculties, whereby families were often robbed, and what were miscalled "charities" established which did no good to the country. Another great evil was the facility of establishing perpetuities. The law abhorred perpetuities in general, but, though it forbad them in regard to family arrangements and restricted the power to a very limited time, it allowed them to be created in the case of charitable uses. Every gift was "charitable" which was for a public purpose and was not repugnant to religion and morals; and many things might be called charities which were of themselves perfectly innocent, though of no public benefit. He would give an instance of what had been held to be a charity. There was a very rich gentleman, who had a very great estate, and was very desirous to be a philosopher and an author. He published a book containing his notions on philosophy, which nobody read, and by his will be left an annuity of £300 a year for the benefit of an unsuccessful person in literature, who should support his doctrines in philosophy and praise his publications. Reference was first made to the Master to know what were his publications, and what was their tendency, and the Master having reported that there was nothing in those opinions and publications contrary to morality and religion, the charity was established. Another gentleman left certain funds to be applied, one-half for the benefit of fifteen maidens in the parish between the ages of eighteen and twenty-five, the prettiest girls and those who most regularly attended church; and the other half for the benefit of fifteen spinsters above the age of fifty, with the like qualifications, except, he supposed, as to beauty. The trustees were very much puzzled, and they came to the Court of Chancery for advice, and the Court held that they were not bound to make any selection on the ground of beauty, but that in all other respects the gift was a perfectly good charity, and that it must be carried into effect: and, therefore, as long as the sun shone and this world continued there would be 2042 this allowance to fifteen maidens and fifteen spinsters in the parish in question. He thought there should be some fixed period, on the lapse of which charities should be reviewed, and that done which the testators themselves would probably have done. That was done some years ago in the case of the charity for the redemption of captives from Barbary corsairs. That use having entirely failed the Court of Chancery applied to the fund the doctrine of cy pres, and directed the money to be applied to purposes of education; but as the law at present stood there was no power to convert a useless charity to useful purposes. His noble and learned Friend by his Bill seemed rather to try to patch up a building which ought to be, if not demolished, reconstructed on a very different basis. But he hoped that if it passed, it would be an encouragement to proceed further, and to improve the Law of Mortmain among the other amendments of the law.

§ LORD ABINGER
said, he also entertained views of dislike to this Bill. Their Lordships would not suspect that the noble and learned Lord was the author of it, for most of the clauses were shrouded in great obscurity, and there would be the utmost probability that difficulties would arise in practice upon every one of them. The preamble was most insidious, and great ingenuity had been expended in drawing the clauses so as to conceal, under the plea of amending the Law of Mortmain, their real object of subverting it altogether. He did not feel himself called on to move that the Bill be read a second time that day six months, but he hoped that it would be got rid of in some way or other, and a new measure, based on different principles, substituted for it.

§ LORD WENSLEYDALE
was in favour of the principle of the Bill, which he believed would remove a great many grievances and difficulties produced by the existing state of the law. He admitted there were many details of the measure which might be corrected in Committee.

§ LORD CHELMSFORD
entirely agreed with the noble and learned Lord who had last addressed their Lordships. It appeared to him that the Bill embodied all the alterations that could safely be introduced into the Law of Mortmain. The Act had a prospective and also a retrospective operation. The retrospective portion of the Act, which would, of course, be open 2043 to the most observation, applied to the cases of grants for full and valuable consideration. Under the Mortmain Act a distinction was made between voluntary grants and grants for full and valuable consideration, and it was not necessary that the latter should be executed twelve months before the death of the grantor. It was strange that persons reading that Act should suppose it to be the intention of the Legislature to dispense, in the case of such grants, with all the other formalities required. Many conveyances were, however, executed without such formalities, and it became necessary for the protection of the grantees to introduce a statute, the 9th Geo. IV., by which these deeds were rendered valid. So the law stood at the present moment, and his noble and learned Friend now proposed to carry the principle further, and retrospectively to render valid all deeds which had been executed for full and valuable consideration where the necessary formalities had not been observed. The only doubt on this point would arise from the difficulty of ascertaining at this distance of time whether such a consideration had been given. Still, this was not a sufficient objection to the retrospective clause, and the prospective part of the Bill certainly remedied a great evil. As the law now stood the slightest reservation in favour of the grantor rendered the deed void. Now, there were various instances in which it was impossible to obtain the gross value of lands, because it was customary to grant them upon fee farm rents. Such grants would be void, and he approved the change proposed in this respect. There were also many cases in which such reservations as were named were absolutely necessary, and he apprehended that if the power in certain cases to make reservations was given it would be a benefit to the owners of land as well as those interested in charities. He confessed that he could not agree that it would be desirable for any general inquiry to take place at this time into the statutes of Mortmain.