HC Deb 01 August 1843 vol 71 cc98-118
Lord J. Manners

said, he had given notice at an early period of the Session to call the attention of the House to the existing state of the law of mortmain; (and, however presumptuous it might be to attack the cherished prejudices of West-minister Hall, however hopeless the attempt to interest the House on so grave yet important a subject,) after all that had taken place during the Session, and still more after all that had not taken place, he felt he should not be justified in allowing the Session to close without bringing this subject fully before the House and the country; though, if he saw a hope of any one possessing greater influence than himself stirring in the matter, he should not bring the matter forward now. The moment he heard that a right Rev. Prelate had the conduct of a measure which, to a certain extent, carried out the principle for which he contended, he (Lord J. Manners) determined not to proceed in the matter, and it was only because he understood that the right Rev. Prelate found it impossible to overcome the difficulties and objections with which the law officers of the Crown threatened him in reference to that measure, that he (Lord J. Manners) now ventured to entreat the indulgence of the House while he endeavoured to lay before the House the grounds for the motion with which he should conclude. He thought it was impossible for any one seriously to consider the state of this country and of Ireland—to see the millions of people suffering from the extreme of want, ignorance, and misery, and then to ask himself what had been done during the year 1843 by Parliament to ameliorate their condition, without sorrowfully and with shame confessing that while none had ventured to deny the awful existence of those most awful facts, nothing had been done to remove them. It was under these circumstances that he had given notice of the motion which he was about to bring before the House. He had given notice of it, because—he said it more in sorrow than in anger—the sectarian bigotry and the selfish credulity of some, and, if he might so say, the want of moral firmness in others, had all conspired to render nugatory and of no effect measures which might have been beneficial in themselves, and certainly would have been a practical guarantee afforded by Parliament of the goodwill entertained by it for the people. It was, therefore, only after this House declared that the poor should not be taught—that ignorance should not be instructed—and that the unemployed should not be set to work by public munificence, that he asked them to carry that principle to its legitimate extent, which alone could justify them in acting on it, and while they refused to be munificent as a state, to throw every facility in the way of private munificence and beneficence. There was one gentleman in that House with whom these considerations ought to have weight; he meant the First Lord of the Treasury. He had heard with great pleasure, expressions fall from the right hon. Gentleman which led him (Lord J. Manners) to hope that the time was not far distant when restrictions on the exercise of charity would cease to exist. He would refer to a remarkable passage in a speech delivered by the right hon. Gentleman on education, in which he used the following expressions:— After all, he was afraid that the interference of the legislature would be of little effect, unless among the educated and wealthy classes the conviction could be pressed upon their minds that they were all to blame—unless they felt and were all convinced, manufacturers as well as landowners, those possessed of wealth, and the responsibility for the use of wealth, that they had all been individually neglectful of the education of the poor; and he trusted more to the moral effect of the demonstration of to-night encouraging individual exertion than he did to the interference of the legislature. He feared that the effect of that demonstration was likely to be but short-lived, and it was his earnest wish to afford practical encouragement to those private exertions to which the right hon. Gentleman said they must look: and it was for this purpose he asked the House to consent to his resolution, which would declare the existing restrictions of the law of mortmain unnecessary. In order to point out the restrictions which existed under those laws, and which, in his opinion, were useless and prejudicial, he should be obliged to refer to the origin and history of the mortmain laws, and he trusted that he should be able to show that the restrictions which might have been necessary in the 15th century were altogether the reverse in the 19th century. He maintained that the restrictions of the mortmain laws had their origin not in any political-economic notion that perpetuity in land was a bad thing, but in the natural dread which the great feudal barons and each successive king entertained of the growing power and wealth of the monastic body. Every act that passed in those early ages confirmed him in this view. The preamble of the first and most important act, the 9th of Henry 3rd was confined in terms to the regular clergy, and merely restrained the tenants of other Lords from transferring their tenure by a fictitious process to religious houses, and so far was he from saving that this law, and those passed in Edward 1st's. reign were useless, that he looked on it as a matter of regret that the monastic institutions in those ages were not more stringently overlooked and guarded against, so that their wholesale and fatal destruction at the Reformation might have been averted; but he contended that the restrictions which were useful then were useful no longer. What reasonable fear could there be now of a fictitious title being set up by religious houses to land which donors wished to grant to them? What reason was there now to apprehend detriment to the Lords, or danger to the state from tenants setting up crosses on their lands in order to avoid performing their proper military services? The dissolution of the monasteries must be looked on the great climax of mortmain legislation; and thenceforth the tenor of legislation and prerogative was to relax and mitigate the laws of mortmain up to the reign of George 2nd. The 39th of Elizabeth enabled a person to erect an hospital or house of correction, which might hold lands in mortmain not exceeding the yearly value of 200l. In the succeeding reign a law was passed making this law of Elizabeth perpetual; and the 7th of James 1st commended people "who gave money to bind out apprentices." This relaxation of the mortmain law continued in the reign of Charles 2nd and after the Revolution, for he found a law of William 3rd (7th and 8th) reciting— That it would be a great hindrance to learning and other good and charitable works, if persons well inclined might not be permitted to found colleges or schools for the encouragement of learning, or to augment the revenues of colleges or schools already founded, by granting lands, &c. or to grant lands to bodies corporate for good and public uses. Then came the statute of Anne, founding the Royal Bounty, and at that period he ventured to say the state of the laws affecting charity was all that a Churchman could desire, although with regard to Roman Catholics he believed the pains and penalties they were under extended to their bequests and charities; but soon afterwards the spirit of wealth and regard for money produced their fruit in the enactment of George 2nd commonly called the Mortmain Act. By this law, which might be fitly characterized as a law for the effectual hindrance of faith and cha- rity, which was protested against by the Church, the Universities, and the charities of the kingdom, and which, with some exemptions to which he should afterwards allude, was still in active operation, nothing savouring of the reality might be in any way conveyed to any body or bodies politic corporate, for any charitable purpose, unless, by deed executed twelve months and enrolled six months before the death of the donor. But weak as he thought the arguments were in favour of that bill, then at least it could be said that the Church could extend her ministrations to every Englishman; then at least it could be said that the poor had a right to a sufficiency of provisions, and a proud contrast could then be, and was drawn between the religious and charitable state of England and that of other countries; but now, how different was the state of things! At a time when there was 6,000,000 beyond the pale of the Church—when more than a million were dependent for existence on a form of charity which hardly deserves the name—when discontent and rebellion were rife in every part of the land, arising almost entirely from ignorance and destitution—when, to use the words of his right hon. Friend, the President of the Board of Trade,—"On the one hand, there is a decrease in the comforts of the lower classes, while on the other there is a constant increase in the luxuries of the upper—an increase which, whatever might be the amount of evidence it afforded of the prosperity of the nation at large, adds considerably to the bitterness of the suffering and impoverished portion of the community,"—at a time like this, were they to be met with the cant and worn-out objection against perpetuity? Were they to be told that it was necessary to prevent lands from being tied up in perpetuity, in order to encourage the spirit of commerce, and that it was unwise in any way to damp the ardour of industry and enterprise? It would require a considerable degree of argument to convince him that the mere fact of a wealthy trader being allowed to leave his wealth, or the lands in which he might have invested it, to pious purposes, would indispose him or others to enterprise; but of this he was sure, that even if it were so, the country was suffering more from the excess of commercial competition and enterprise than it would from any such slight check that might be given to it by the repeal of the Mortmain Act. He could hardly believe that the arguments which were adduced in 1736 would be again pressed into the service; would they be told that it was impolitic to allow the Church to hold much land because her tenants must needs be effeminate and unwarlike, or because an ambitious Lord Primate might, through the power Church property would give him, sway the destinies of the kingdom? He had heard, but he discredited the rumour, that he should be met with the assertion that some forty or fifty years hence the Church would be wealthy enough to christianize the whole people of this country; forty or fifty years hence! Why who could say where England herself would be then? He would ask those who took so capacious a view of the subject to consider the state of the population at this moment, to think what it might be forty or fifty months, or even weeks hence, and to comfort themselves with the assurance that if, at that distant day, every good and charitable purpose was amply fulfilled, then they, or their successors, would have no difficulty in imposing another law of Mortmain. But he dismissed these considerations as unworthy of serious discussion, and would proceed to those which he apprehended would be the three chief objections to his resolution. It would be said, that if the Mortmain laws were relaxed in favour of the Church of England, they must also be relaxed in favour of the Church of Rome and of Dissenters. He at once would frankly avow that he was prepared to meet that objection by denying it to be one. The Roman Catholics and Dissenters had been placed upon a footing of political equality, and why not with reference to this subject? In this matter he claimed no special immunity for the Church of England. He was prepared to allow wealthy Roman Catholics to build and endow Roman Catholic schools and churches for the Roman Catholic population of the country; and he would go further and say, that among the boons which Parliament should grant to Ireland he ranked the revision of the Mortmain laws. He held this out as an alternative to those who shrunk back from the proposal of paying the Irish Roman Catholic priest; and he said, if they were not prepared to shift the burthen of supporting their clergy from the shoulders of the miserable and ground-down peasantry of that country to the shoulders of the state, at least permit those who were willing to bear their portion of those burthens to do so; at least permit the rich Roman Catholics to administer to the wants of their poorer brethren in that country. He now came to the second and most important objection; it would, no doubt, be said that the greatest possible precaution ought to be taken to secure the death-bed of a lingering person from the solicitations which might surround it. But he thought a consideration of the state of property in this country, a reference to the existing law, and a knowledge of the finer feelings of human nature, would induce a belief that the fears some entertained upon this head were altogether unfounded, or, at least, greatly exaggerated. He entreated the House to consider that a large quantity of landed property in this country was strictly entailed; that even the present law permitted the poor man to leave what constitutes his wealth, namely, personal property; he entreated them to picture to themselves a death-bed surrounded by weeping children and relations, and then to legislate, if they could, upon the probability that fathers would generally become so barbarous as to disinherit their sons, if the Mortmain laws were repealed? Why, was ever inconsistency so glaring as this? To protect their heirs, the law forbids dying men to leave their estates for good purposes, but permits them to do so for foolish ones: leave lands to found churches, or colleges, or convents—monstrous and horrible proposition! But to endow a menagerie for wild beasts; to perpetuate the childish vanity of human nature; to gratify the senseless pride of the dead—all this the law sanctioned, and would carry into effect. Let any candid man strike a balance in his own mind between the possible evil of some one case of individual hardship, and the great probable, he would say certain, good which would result from a repeal of the Mort-main law, and he would fearlessly abide the result. But in order to meet any apprehensions or objections, there were great limitations, any one of which might be fairly enforced, in accordance with the spirit and terms of his resolution. First, with regard to value, he saw no objection to the example set by the 38th of Henry 8th, which allowed one-third of the land by knight's service to be bequeathed by will. A restriction to not more than one- third or one-half of an estate of lands would be fairer than the present limitations of positive value and the present exemptions under the Mortmain laws. There were certain favoured charities and purposes for which land to a certain amount could be left; permitting the poor man to leave the whole of his estate, which might to his rich neighbour be the merest trifle: that, if any restriction was desirable, seemed to him the fairest and the best, and he could see little or no difficulty in applying it. Again, another protection might be found in the addition to the number of witnesses, of the medical or legal adviser of the testator. Thirdly, there might be a limitation as to time. The principle of the law of 1736 with respect to grants might be applied to wills, and the limitation be that no bequest of land should hold good for charitable purposes unless made one month, and enrolled one week, before the death of the testator; that would answer every purpose of the statute. He expected that an objection of a more positive nature than any he had yet noticed would be started against his proposition; it would be said that there were so many exemptions already in favour of particular objects, that more could not be granted. He should be told no doubt, that by the 43rd of George 3rd, any person might grant by will five acres of land, or personalty to the amount of 500l. for a new church or parsonage-house, and land for schools up to half an acre, and it could be done for various institutions and charitable uses; but if those exemptions were so numerous and weighty, why contend for the law at all? If the law was so bad that men were continually inventing new plans or evading it, why keep it in the statute-book? Why retain a law upon which the legal ingenuity of the kingdom was constantly exercised in order to destroy its operation? If bequests might be left to St. George's Hospital, why not to St. Thomas's? If a person living, at Bolton might leave his estate to the Royal Naval Asylum at Greenwich, why might he not found a hospital in his native town? If he could leave a legacy to the Bath Infirmary, why not to the Bath Hospital? Of all mischievous legislation, that was the most mischievous which laid down a stringent rule and then taxed ingenuity to break it. What was the inference to be drawn from those continual infringements on the inviolability of that law? Clearly this, that the law was a bad law which could not be maintained, and he asked the House, instead of juggling and frittering away its restrictions in a manner which increased beyond all belief the quantity of litigation, to remove it at once from the statute-book. No doubt, many other objections of smaller amount would be brought against his proposition, but he should forego entering upon them, and proceed to the consideration of the benefits which would accrue to the State from the practical adoption of the resolution he was about to submit. He had already alluded to the state of Ireland, and expressed his belief, that a great boon would be conferred upon that country by the adoption of the principle which he wished to see established; and from certain observations which fell from the hon. Baronet, the Member for Mallow, on a former evening, he concluded that their opinions upon the subject were coincident. But let them now look to England, and see if no fresh inducements to charity, religion and devotion were not required; it was acknowledged that they were. Schools, hospitals, churches, cathedrals were wanted; and in his opinion, something more,—the reestablishment of religious houses. He never could believe, that the teeming millions of our agricultural and manufacturing districts would be brought within the pale of Christian civilization without the establishment of some sort of monastic institutions. Call them by what name they liked, but if the poor, the ignorant, and uncared for, they who were now suffering the extremes of want and ignorance, were to be taught their privileges as well as their duties here, if they were to have bright hopes of an hereafter, as well as a sense of happiness here imparted to them, let not the House flatter themselves, that their Ecclesiastical Commissions or Endowment Bills would effect that object. In saying this, he did not mean to advocate a revival of the monastic system as it once existed in this kingdom, but he thought, with Mr. Paget, that If monasteries, instead of being swept away, had been reformed; if it had been reserved for persons not tied by monastic vows, but who, satisfied to endure hardness and content with poverty, were ready, from the pure love of God, to devote themselves to preaching, study, and prayer, our large towns would have been supplied, not, as now, with some three or four overburdened clergy- men, but with a numerous body of men ready, under episcopal guidance, to do the work of apostles and evangelists to multitudes (the expression is not too strong) now lying in darkness and in the shadow of death. He pointed out the repeal of the Mortmain Act as a means for endowing such institutions; but, should the Church, by her authoritative voice in Convocation or Synod, decide that nothing should be done save by the present parochial system, then he contended, that it was still more necessary in that case to encourage the foundations of churches, and schools, and colleges, by removing, as he proposed to do, the present restrictions; and that no one might fancy those restrictions had no real existence, or that he had exaggerated their importance, he would mention one or two most recent cases. It had come to his knowledge, within the last three or four days, that at this moment there was a lady at Leeds, aged eighty, who wished to leave 25,000l. for the erection of churches, but it was stated by a legal gentleman, that if she did not live a year after making such bequest her generous purpose would be foiled. Every conveyancer could mention similar cases; and the House would recollect the case of the Dean of Westminster, who had left 5,000l. to build a church, but the court had decided that 500l. only could be so appropriated. Were I so disposed, said the noble Lord, I could fatigue the House with reciting innumerable similar instances; they are of daily melancholy occurrence, but I hope I have said enough to convince the House, that my proposition is one which they ought to adopt. In an age confessedly devoted to money-getting, when the wealthy are wealthier, and the poor—alas! that it should be so—are poorer in proportion than they ever were before; when hundreds of thousands are without food, religion, and employment, I ask you to have the courage to believe in the nobler impulses of our nature; to appeal to the glorious spirit which built our cathedrals, our colleges, our convents; to give scope to the exercise of those virtues without which no country can become or remain great.—faith and charity; and to brush away from the statute-book the cobwebs which a faint-hearted age imposed for the purpose of entangling and fettering a munificence which they could not love or understand, and which we mournfully desider- ate. The noble Lord concluded by moving the following resolution:— That it is inexpedient, in the present condition of the country, to continue the existing restrictions on the exercise of private charity and munificence.

Sir J. Graham

said, that nothing had been further from his thoughts than to have addressed the House upon the present subject, as he had fully anticipated on coming down to the House that another motion of great importance which stood upon the order book would have been the question brought before the House for discussion this evening, The noble Lord who moved this resolution had sat down by declaring that it was now time to sweep away the cobwebs and meshes of antiquity, which unwise legislation had produced and which obsolete prejudice still fostered. The noble Lord proposed, that all such impediments to the free exercise of charitable and devout feelings should be immediately removed. He (Sir J. Graham) must say that the noble Lord proposed to effect his object in a most summary manner. On the 1st of August, and in a House which he (Sir J. Graham) almost felt it to be his duty to count—in a House prepared to discuss another subject, the noble Lord proposed by a mere resolution, not by a bill, to abolish a code of laws, which had existed since the time of Edward the 1st to the present day. The statute of mortmain had been introduced by Edward the 1st, who had been styled the English Justinian, and of whom Sir Matthew Hale had said, "That in the twelve or thirteen years of his reign, he had done more for distributive justice and sound policy than had been done in all the subsequent period to the time in which he spoke" From that period until now the restraints imposed by the statutes of mortmain had been applied to the alienation of real property for charitable purposes. Certain relaxations, to which reference had been made by the noble Lord, had been adopted but the law itself remained inviolate. The restraints and limitations were confined only to real estate, and not to personal property. At this moment funded property, to any amount, may be bequeathed to charitable and religious uses. The noble Lord had anticipated the chief objections which would be urged against him, and the first was, that if relaxations were made in the statute of mortmain in favour of the Church of England, they must also be adopted in favour of the Roman Catholics and Dissenters. In that opinion he (Sir J. Graham) entirely concurred. He thought it impossible to propose that the statute of mortmain should be repealed in favour of the Protestant Church, and not also for the free use and benefit of all classes of her Majesty's subjects. The noble Lord appeared to think that in that case the alarm of our ancestors might again prevail, and that apprehension of the possible devotion of property to superstitious uses would influence the Legislature. On that point he (Sir J. Graham) must be permitted to say, that if they were to be actuated by the fear of superstition, such jealousy ought not to be confined to any one church in particular; for within the pale of what he might still call the Protestant Church, he feared as much superstition might now be found as in churches more corrupt. Why, what did the noble Lord himself say? The noble Lord entertained the opinion that it might be desirable to re-establish religious houses, and in order that there might be no doubt as to the sort of religious houses he meant, he distinctly described them as "monastic institutions" Now, he (Sir J. Graham) entreated the House, when such opinions as those were avowed—when it was declared by the noble Lord, the mover of this motion, that at this period, in this country, and, in the present state of public opinion, it was desirable to re-establish "monastic institutions,"—he entreated them, he said, to pause before they passed a resolution condemning the statute of mortmain, which imposed a salutary check on fancies such as these. He did not think it necessary to follow the noble Lord at greater length. The noble Lord was quite aware that if this repeal was to take place, it was necessary to guard carefully its details, and he illustrated it by a reference to the 9th George the 2nd, which, to a certain extent remitted the stringency of the provisions of the statute of mortmain. By the act of 1736 no bequest was valid which was not made twelve months before the death of the donor, and which had not been six months enrolled, and which was not made by deed. The noble Lord wished that these limitations should be reduced to one month and one week. He, also, proposed a variety of other alterations. All these were minute details requiring careful consideration, and, under such circumstances, it surely was not too much to ask that they should not be required to proceed in the form of a resolution—that they should not proceed to set aside the statutes of England, respecting which even alterations of details had always been considered points for ample and attentive discussion; but that the noble Lord should place before them a careful digest of the whole measure which he desired to introduce. Certainly he (Sir J. Graham) did think that a resolution so moved, and propounded with a view to the attainment of such objects, should not receive the least degree of encouragement from the House. And therefore, although he was disposed to treat the mover with the utmost respect, and although he gave him credit not only for sincerity of intention but for kindness of purpose, yet he must beg to differ from him, not only as to the principle he advocated but also as to the mode in which he intended to alter a law of which the commentator Blackstone had declared that by it Edward the 1st, "effectually closed the great gulf in which all the landed property of the kingdom was in danger of being swallowed. "He (Sir J. Graham) feared that the effects of the noble Lord's measure would be to re-open that gulf, and he therefore called upon the House to reject the motion, and confidently expressed his belief that no other course they could take would be consistent with sound policy.

Mr. C. Buller

thought he need give no very laboured answer to the objections of the right hon. Baronet respecting the time at which this measure was brought forward. Objections of the sort not unfrequently afforded a very convenient means of obtaining a vote; but in the present case he did not think that the noble Lord for a moment supposed that he, on the 1st of August, 1843, and by obtaining assent to a general resolution, was about to take a step involving an entire change in the ancient statutes relating to Mortmain. The right hon. Baronet, however, had left unanswered a point of infinitely more consequence than that relating to "time." He had entirely neglected to touch the very important consideration that, after all, these enactments were mere cumbrous measures of legislation. Of course it went considerably against his grain to raise any objections to laws which gave additional employment to members of his own profession; but, at the same time, looking at the matter as it affected the general good of the country, he must ob- ject that these statutes had the effect of creating additions to the already too numerous clauses in charters and deeds of gift. They caused more cumbrous conveyances and increased litigation. There was no difficulty under the law in leaving money to particular corporations, and by an evasion of the law, great quantities of landed property were even now held by different corporate bodies. It should be the object of a wise legislature to simplify all such laws, and to leave nothing to be disputed in consequence of a slip of a lawyer's pen. It seemed monstrous that one day property should be given to a public purpose, and that it should be held to go because the conveyance was well-drawn, and that the next day property also intended to be devoted to such purpose should not go, because the Court of Chancery held that the conveyance contained an error. As for the alarms of our ancestors, no subject for such alarms existed in these days. For his part, he was anything but afraid that the Church would get too much property, and that "a great gulf" would be opened by this measure, in which all the landed property of the country would be swallowed. He wished he could see any sign among the landed proprietors that they were inclined to give property to public purposes. He thought it rather a shame to this age, when he contrasted the little that was given with the much that was given formerly. When he looked at our colleges, when he looked at the hospitals of the country, he confessed it was not without shame that he observed that not one-fiftieth part of the means of those institutions had been contributed by men in the present age. It should be the tendency of legislation not to guard against the faults of former times, but rather to guard against the faults of our own times; and in his opinion, it would be wise that the Legislature should give some encouragement to men of property not to accumulate all the property in the hands of their descendants, but to make the nation to a certain extent the object of their bounty. The old fears respecting the accumulation of property in the hands of corporations had now no validity. Formerly the fear was that the Church would not contribute from the land its fair proportion to the military force of the kingdom. As for any fear that agriculture would suffer from the possession of land by the Church, such fear was opposed to the whole course of history. "It is better to live under the crozier than the lance," said the serf of former times; and, indeed, it had been found almost invariably that the Church and the corporations were the best landlords. It was so at the present time. Let him ask hon. Gentlemen from Ireland what sort of landlords were the London companies who possessed the soil in the north? Our colleges were uniformly accounted good landlords; the lands of Greenwich Hospital were said to be admirably managed. For the reasons, then, that the law only encumbered the statute book, and that it was inadvisable to perpetuate old alarms, he should give this motion his support. One other ground on which he should vote for it, would not probably be so generally agreed to by the other side. He referred to the question of Church-rates. He thought that there was nothing in which our ancestors showed so much wisdom as in preventing public bodies from being dependent on the great mass of the people; and he also thought that there was nothing by which we had so much shaken the power of the Church as by making her dependent on the people for support. On the ground then, that a revisal of these laws would do much towards doing away with this impost, he should be also ready to support the noble Lord's proposal. He should be glad to give an opportunity to private benefactors to step in and assist such an object, and he could not but think that the friends of the Church would look with much more pleasure on a Church endowed by private benevolence, than on one supported by a Church-rate, levied against the wish of the people, and after a party squabble in the vestry. With respect to the noble Lord's proposition as to the statute of the 9th of George 2nd, he should feel inclined to treat it with great caution; for, although that statute might, perhaps, go somewhat too far, yet he should desire to maintain some sort of stringent measure to prevent the fears of dying persons from being unduly acted on. Upon these grounds, he would not say he was glad to support the motion, because neither he nor the noble Lord could for a moment suppose that in this session it could have any practical effect; but at any rate, he was glad it had been brought forward; and, leaving out of consideration all apprehensions of groundless animosity to the Church, putting by all the fears of our ancestors, whilst we took all that had been proved to be valuable by experience, he did think that after due consideration, they might remove some of those barriers which were now such fruitful causes of expense, doubt, and litigation, giving thereby an impulse to private charity, and restoring among the wealthy of the country a feeling that they would be making the best use of their property, if they sometimes applied it in providing for the moral and religious instruction, and for the spiritual well-being of the people.

Sir Robert H. Inglis

When last he had called the attention of the House to the subject of Church-extension, the question of the abolition of mortmain had not escaped his attention. He could not, therefore, regard with disfavour the present motion. But nevertheless he could not altogether agree—first, in all the statements of the noble Lord introducing the motion; and secondly, he could not concur in the observations made by the right hon. Gentleman the Home Secretary, upon the equal claims which he seemed to admit the Dissenters and Roman Catholics had with the Church of England. He could not concur with the noble Lord (Lord. J. Manners) to revive those institutions which he had spoken of in the emphatic phrase of monasteries. He was not one who regretted the destruction of monastic institutions; he was not one who regretted the extinction of the convents here, and which still existed in other countries. On the other hand, he did not concur in the observations of the right hon. Baronet the Home Secretary, observations which proceeded on the assumptions made by the other side of the House, but which never were made without being resisted by him, viz., that whatever restrictions were removed that pressed upon the members of the Established Church, the same boon must be allowed to Roman Catholics and Dissenters of all denominations. He was quite prepared from experience to acknowledge that the House would not be ready to receive his opinions. The right hon. Baronet did not regard the claims of the Church to the pre-eminent support which he had always thought her due. He contended that the constitution of England enshrined its religion, not in this or that sect, but as we had retained it for the last three or four centuries. It was that Church which her Majesty solemnly swore in the sight of God and man to maintain and uphold, and he never would allow, as far as lay in his power, the Church to be confounded or placed on an equal footing with Roman Catholic and Dissenting institutions. There might be good reasons why Parliament should give facilities in England, and encouragement to the people of England, to exercise more largely private charity in respect to their Church, but he contended that that Church was entitled to pre-eminence and support before all others. He was ready to grant a relaxation of mortmain in respect to the Church of England, but he could not carry out the principle in its application to the 500 sects which were to be found registered in the books of the Quarter Sessions, or in any dictionary of religious denominations. With reference to an observation of the right hon. Baronet, he would ask, although in the last century little was done in respect of the donation of lands, whether, since the year 1736, a great amount of personal property had not been acquired in this country; an amount, which, in the reign of Edward the 1st., would have been regarded as beyond the power of man to accumulate. He believed that the amount of personal property over and above what existed in the country in the middle of the reign of George 2nd, was not less than 1,500,000,000l.; and, as had been said, the whole of that personal property might, without being restrained by the existing law, be bequeathed to-morrow for religious or charitable purposes. If the owners chose to invest it in land, the obstacles of mortmain, it was true, interposed a check, which, in the great majority of cases, he would desire to remove; but in the practical consideration of the question it should not be left out of sight that a species of property unknown to those by whom the statutes of mortmain were framed, and not even within the contemplation of the Legislature in the reign of George 2nd had been created. He had felt it his duty, though very reluctantly, thus to comment upon some observations in the speech of the noble Lord, but he had done so with sincere respect, not more for the noble Lord's motives than for the talent and information he had displayed on the subject.

Mr. Bernal

wished to call the noble Lord's attention to the sweeping form in which his motion had been made. The resolution stated:— That it is inexpedient in the present condition of the country to continue the existing restrticions on the exercise of private charity and muniffcence. Why, this motion would apply to restriction in every sense of the word. It would not only affect the statutes of mortmain, but it would extend even to the police regulation as to charity to be given in the public streets. The resolution would extend to any rule which went to repress or limit the exercise of private charity. But when he heard the noble Lord declare, that his attention was specially directed in bringing forward this motion to one object—which he might term a charitable purpose in the old Catholic sense of the word—when he heard him point to the institution—he would not say of monastic establishments, but, of establishments separated from secular purposes—then, he thought, that the noble Lord could not deceive himself, that they could not deceive themselves, but, that there was one motive pre-eminent in his mind, to accomplish which he wished for the repeal of the statutes of mortmain. He was surprised, that the hon. and learned Member for Liskeard, had so much puzzled himself by what he could not but term the hon. Member's enthusiastic ingenuity. The hon. Member looked at the statutes of mortmain as merely opening a large field of business for aspiring lawyers. But what remedy did his hon. Friend propose? Why to make some alterations in the more efficient statutes of mortmain, by limiting the general discretion in courts of law still further. His hon. and learned Friend was only creeping from one dilemma to another. The hon. Baronet the Member for the University of Oxford, had referred to the large amount of personal property accumulated since the time of Edward 1st, and the argument to be inferred from the fact was, if they had statutes of mortmain for land why not have them also for personal property. By the 9th of Geo. 2nd, and the 43d. of Elizabeth, a person might leave any amount of personal property for charitable purposes. There was no restriction upon the devising of property in Ireland. There a man might make over by deed or will, any amount of property whether landed or personal, for any charitable purpose whatever. He thought the difference between Ireland and this country in this respect should be done away with, and that one law should be made to apply to both the countries. He concurred with the right hon. Baronet the Secretary for the Home Department that in removing the statutes of mortmain no distinction should be made between those who were termed Dissenters, and those who were termed Protestants and Catholics. He thought that the noble Lord had acted well in calling attention to the subject, but he hoped that he would not press his motion to a division.

Mr. Borthwick

must say, that among other things, it was astonishing the rapid strides imagination had made among men. They had but to mention the word monastery to fill the mind with visions of all the things done in those institutions in ancient times. He believed, that by carrying the motion, there would be a wide channel opened to private charity. If pressed to a division, he would support the noble Lord. He thought that the statutes of mortmain ought to be subjected to a searching and thorough investigation. So strong was his belief in the excellency of the Church Establishment, that he had no fears in regard to her. There was an enduring principle in her— Magna est veritas, et prevalebit. He did not fear but, that that church which had the most truth in it would prevail. He trusted that the noble Lord would bring his motion before the House in a more substantive form. He had never heard a speech conceived in a larger or more statesmanlike spirit than that in which the noble Lord introduced his motion to the House.

Mr. Brotherton

said, that thanks were due to the noble Lord for illustrating the inconvenience of the statute of mortmain. He knew a gentleman who had left a large property to a Dissenting establishment to carry out certain charitable intentions, but which were defeated in consequence of the statute of mortmain. If it had been devised to Oxford or Cambridge instead of a Dissenting institution, the intentions of the devisee would have been able to hays been carried into effect. He believed that if the statute of mortmain were abolished, it would allow of many persons leaving their property for charitable purposes.

Lord J. Manners

said, that the spirit in which he had brought forward his motion had been in some measure misunderstood. He did not wish by the terms of his motion, to abolish restriction altogether, but he thought the House would excuse him from saying more. After the expression of opinion which his motion had elicited, he would not divide the House. He encouraged a hope, that some one higher in authority might bring forward a similar motion next Session. He trusted, at all events, that he should not be accused of presumption in the course that he had taken.

Motion withdrawn.