Commons Sitting of 4 March 1846

MINUTES.
PUBLIC BILLS.—1°. Metropolitan Buildings.
2°. Election Notices (Ireland).
Reported. Print Works.
PETITIONS PRESENTED. By Mr. Sharman Crawford, from William Bullock, Weaver, of Biggar, for the Adoption of Universal Suffrage.—By Mr. Grogan, from Landed Proprietors, Occupers, and other Inhabitants of the Parishes of Caher and Ardfinan, against any Diminution in the Protection hitherto granted to Agriculture.—By Lord Dalmeny, from Provost, Magistrates, and Town Council of the Royal Burgh of Stirling, and by Viscount Morpeth, from Inhabitants or the City of Ripon, for the Total and Immediate Repeal of the Corn Laws.—By Sir John Yarde Buller, Mr. Sharman Crawford, and Viscount Morpeth, from Residents and Visitors of Torquay, and Inhabitants of Whitworth and Uppermill, against Enrolment of Militia.—By Sir Thomas Acland, from Members of the Board of Guardians of the Tiverton Poor Law Union, and by Viscount Morpeth, from Guardians of the Poor of the Bradford Union, for Alteration of the Poor Law.—By Lord Dunfermline, from Provost, Magistrates, and Council of the Royal Burgh of Dunfermline, for Alteration of the Prisons (Scotland) Act.

BEQUESTS FOR PIOUS AND CHARITABLE PURPOSES BILL.
LORD J. MANNERSrose to move the Second Reading of the Pious and Charitable Bequests Bill, which, he remarked, was based upon the Report of the Select Committee appointed two years ago to inquire into the state of the law with respect to bequests for pious and charitable purposes. When first he brought this subject under the consideration of the House, he endeavoured to demonstrate the great public mischiefs which were likely to accrue from the continuance, and the great advantages which were likely to be realized by the repeal of the Statute 9th Geo. II., cap. 36. Nothing had occurred since that time to alter his views upon the subject. On the contrary, each succeeding year, as it increased his experience, produced fresh evidence in favour of the opinions which he had long held in reference to this matter. The State had refused to provide for the

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education of our vast manufacturing and mining population; and as to Church Extension, that once popular cry of a Conservative Opposition, why, even the hon. Gentleman the Member for the University of Oxford had not ventured to moot it; and he should long recollect the mode in which the very moderate proposition of the hon. Member for Northamptonshire, for promoting the spiritual consolation of the inmates of those institutions which were termed "workhouses"—in Parliamentary phrase, but which were styled bastiles by people out of doors—had been defeated in that House. That was one side of the shield: reverse it, and what did they see? Every possible impediment to thwart and defeat that private charity on which the State affected to rely for fulfilling those objects. It was impossible to review the operations of the present law respecting charitable bequests, without perceiving that some fundamental changes were essentially necessary. The present state of the law was calculated to give rise to many evils. He would beg to draw attention to one in particular, with which, he had no doubt, the House was familiar. He alluded to the case of the late Dean of Westminster, whose charitable intentions had been rendered almost nugatory by the deficient state of the law. The Dean had bequeathed bonâ fide personal property to the amount of 5,000 l., for the purpose of erecting a church in a district of London which had been very much neglected, and where the deficiency of spiritual accommodation had been sensibly experienced; but the entire of this bequest, with the exception of the small sum of 500 l., had been held to be null and void, under the operation of the Statute which he now sought to repeal. Charitable bequests had also been made in favour of the most populous parts of Chelsea; but the intentions of the donors had been there also defeated—a circumstance which could not but be a source of deep concern to the philanthropic and benevolent. It was full time that the House had taken some effective measures with a view to remedying the evil and cruel effects which resulted from the present state of the law. Any one looking to the operation of the law, as it at present stood, would be tempted to suppose that the occupants of hospitals, schools, almshouses, and blue-coat institutions, and the Chelsea pensioners, were objects of actual aversion, and were to be regarded as nothing better than enemies of public
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order, so frequently did it happen that the intentions of benevolent individuals in their behalf, were defeated and overthrown.
"'The largest charitable bequests I have ever known,' said Mr. Grove, addressing the Manchester Law Association, in 1845, 'entirely failed, owing to the solicitor who made the will neglecting to inform the testator that they could not be satisfied out of moneys on mortgage, of which his personal property wholly consisted.'"
The object of the Bill which he now sought to introduce, was to remedy these defects, and to bring the language of those who ruled the country into uniformity with the positive state of the law. He would proceed to detail the provisions by which he proposed to carry that object into effect. The first Clause of the Bill repealed the Statute 9th George II., cap. 96, and the 2d enabled all British subjects who were legally entitled to do so, to demise their property, real or personal, to any public purpose not in opposition to the policy of the country, or condemned by its laws. The Report of the Select Committee had stated that great weight should be attached to the opinion of Mr. Hadfield, the eminent solicitor in Manchester, who thought that if it were necessary to guard the heir from undue influence quoad the disposition of his real property, it was yet more so quoad his personal property. The measure now under the consideration of the House provided for this suggestion. Ample safeguards were provided by the 5th and 6th Clauses of the Bill. The 5th Clause contained a proviso for marshalling assets, and provided that nothing in the Bill should be construed so as to enable any testator, by a charitable gift or grant, to defeat or hinder the just and lawful claims of his creditors, if any such he had; and the 6th Clause, in accordance with an old and well-known canon law, gave to the Lord Chancellor for the time being the power to order reasonable allowance out of property bequeathed for religious or charitable purposes to certain relations of the donor, parent, wife, child, or grandchild left unprovided for thereby. But the main safeguard was in the third clause, which enacted that when more than half the donor's property, whether personal or real, was bequeathed for charitable purposes, certain formalities of a very stringent character should be indispensably required. Thus, for instance, it was required that the will, deed, or other instrument of conveyance, should, for the purpose of being effectual, be executed in the presence of three credible witnesses (one

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of them being the medical attendant), who should certify, on the back of the deed, that the testator was to the best of their opinion of a sound disposing mind, and in the enjoyment of mens sano in corpore sano. The two objections which he anticipated to the measure were these—firstly, that which might be called the political objection, the old hackneyed objectioned against tying up land in mortmain, and thus diverting it from the beneficial operation of commercial competition. And, secondly, that which might be termed the religious objection, and had reference to undue interference with testators in a languishing or dying state. The futility of these objections had, he thought, been completely established by the Report of the Committee. On the first objection, the Committee reported—
"That the whole argument derived from the incapacity of land in mortmain to sustain the feudal, civil, and military incidents obligatory on the land, has for two hundred years ceased to have force, or even meaning, as applied to existing tenures".
It might be narrowed then into the assertion of this doctrine, that it was desirable that no land should be prevented from coming into the market. Now, in the first place, he denied that there was any truth in the assertion that property bequeathed for charitable and religious purposes did injury to the State; and, in the second place, even admitting, for argument's sake, that the contrary was the fact, he maintained that the benefits likely to result to the community from the establishment of churches, hospitals, cathedrals, and almshouses, and their due maintenance and ability to meet the growing wants of successive ages, were such as completely to outbalance any evil of that trivial description. Surely there could not be any truth in the allegation that charitable estates were managed in a manner less advantageous for the public interests than any other description of estates. Surely it was not to be supposed that the tenant of Mr. A., a clergyman holding under a charitable bequest, farmed his land in a manner less advantageous for himself or the public, than the tenant of Mr. B., the squire. He could adduce ample evidence to show that cathedral and chapter lands could be, and generally speaking were, managed quite as well as any other description of estate whatsoever. The noble Lord read some extracts from the reports of the Irish Society, with a view to show that in the Drapers'
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estate at Moneymore, in the county Derry, the soil was well cultivated, and that the utmost care was taken to promote the moral, intellectual, and physical welfare of the tenantry. He also referred to opinions expressed by the Bishop of London—a good authority on the subject—to show that the polito-economic objection with regard to mortmain was ineffectual, inasmuch as that lands now in possession of the Church were liable to change hands as frequently as most other lands. The objection was in fact a quibble of the political economists, who, he hoped, would stand aside, and not seek to interfere with the progress of charity and benevolence. With respect to the religious objection, all he would say, that if it was valid with respect to real property, it must be equally so with regard to personal; and he never yet heard any one assert, inside or outside of that House, that a case had been established against the clergymen of any Church, whether Protestant, Roman Catholic, or Dissenting, showing that they had surreptitiously, and in an unwarrantable manner, procured bequests of personal property from languishing or dying persons. He had heard many extraordinary charges against clergymen of every persuasion; but he had never heard any such charge as this. He had heard last year of twelve beneficed clergymen having ridden from the town of Exeter on a Sunday to hunt, attired in scarlet uniforms and top boots; and he had also heard that Dissenting ministers in the north of England had been accused of abetting the atrocious crime of assassination; but he had never known it to be alleged against the clergy of the Church that they had tampered with the testator on his death-bed, or induced him to bequeath his property for any charitable purpose. The noble Lord referred to opinions expressed by the Bishop of London with respect to the great improbability of any such interferences being attempted; and in conclusion observed that Mr. Jarman, the eminent conveyancer, had declared that the present state of the law produced litigation and constant attempts at various evasions, as must ever be the case when the feelings of mankind were not in unison with the provisions of the Statute-book. He called on the House now to repeal the law which operated in the injurious manner he had described—a law which had been condemned by the authority of the most eminent of our present conveyancers—a law which had been

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denounced by the fervid eloquence of a Palgrave, by the legal authority of a Hadfield, a Jarman, and a Barge; and which had been proved by the fatal experience of one hundred years to be alike impotent for good, most apt and ingenious for evil. He did not wish to disinter the old laws of mortmain: requiescant in pace. He would not disturb their slumbers; but he entreated the House to revert to that wise and generous policy that had obtained in our courts of legislature and judicature when a Bacon, a Coke, and a Clarendon, were the luminaries of the one, and the Tudors and the Stuarts reigned over the other, to enact a law of the description he now proposed—a law which was sanctioned by the authority of great modern lawyers—which was according to the better feelings of our nature—and which was calculated to diffuse throughout the land those great and manifold blessings, of which Faith was the mother, Religion the handmaid, and Charity the fulfilment. The noble Lord concluded hy moving the second reading of the Bill.
SIR J. GRAHAM: I can assure the House that I am disposed to meet the proposition of the noble Lord with all the respect that is due to the attention which he has bestowed upon the subject, to the benevolent motives which have actuated him in bringing it forward, and to the opinion of the Committee which gave its sanction to this measure. Sir, the subject having been brought before that Committee with the consent of the Government, I have had time to reconsider the opinion I formerly expressed; and I am bound to state, that that reconsideration has not led me to the conclusion that I can give my support to this measure. It is not my intention, even if I were able, to enter into those more learned considerations in connexion with this subject with which the noble Lord has invested it; I consider it quite sufficient for me to take my stand on the Act of George II., which, for upwards of a century, has fixed and regulated the law on this subject. On the face of the preamble of that Act, it appears that past experience had shown the necessity of special intervention. The words of the preamble are short, but impressive. They say—
"Whereas gifts or alienations of lands, tenements, or hereditaments in mortmain, are prohibited or restrained by Magna Charta and divers other wholesome laws, as prejudicial to and against the common utility; nevertheless, this public mischief has of late greatly increased by many large and improvident
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alienations or dispositions made by languishing or dying persons, or by other persons, to uses called charitable uses, to take place after their deaths, to the disinherison of their lawful heirs."
The framers of that Act had experience of the evil since the Reformation; and in passing it, they assigned a reason for doing so which I think is still binding on the State. Upon this ground, and resting my opinion still more especially on our experience since the passing of that Act, I am not disposed to disturb the present state of the law on this important subject. First, let me call the attention of the noble Lord, and of the House, to the immense mass of property which, since the passing of the Act of George II., has arisen, as it were, de novo, in this country, and which is not subject to the restraints of the Statute of Mortmain. I need not say that all personal property is exempt from the restrictions of that law. Now, what is the amount of that property in this country? I have here a statement of the amount of property on which was paid the legacy duty in the year 1845. It appears that, in the last year, no less than 45,599,714 l. passed under will from dying persons to legatees, the whole of which not subject to the Statutes of Mortmain or the restrictions of the Act of George II., might have been applied to charitable purposes. But what is the whole amount of the same description of property that has so passed since the year 1797? The language of figures is scarcely ample enough to express it. It appears to have been 1,339,419,511 l. Now, really Sir, it does appear, with these facts before us, that no facilities have been wanting to enable those who were so minded to leave their property to charitable and religious uses. This applies to personal property; it now remains to be seen whether, as regards the transmission of real property, the obstructions are of an unreasonable character. What are the provisions of the Act of George II. in this respect? By that Act, if a person wishes to dispose of any portion of his real property, even the whole of it, to charitable and religious uses, he must do so twelve months before his death; and the instrument by which he docs it must be enrolled six months before his demise? What is the policy of that provision? Why, that if he desires to devote his real property to such purposes, it shall be by a sacrifice of a personal nature made during his life. The best test of his sincerity is, that he shall give up his property while he lives—that he shall not be

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enabled to make that charitable disposition at the close of his life, in the last moments of his existence, perhaps under the false impression of an understanding clouded by disease, or misled by priestcraft, that a misspent life may be atoned for at the expense of his heirs. Such a proceeding is no proof whatever of a repenting heart or an awakened conscience. But, on the other hand, if a man will perform the charitable office at the expense of a personal sacrifice while living, that is an act of virtue and of beneficence to which no law ought to be a barrier. Does the Act of George II. offer any such obstruction? No, on the contrary, it carefully avoids any such discouragement. The noble Lord must allow me to observe, that he really, in his Bill, marks his own sense of the very dangers which the Act of George II. was framed to prevent. Many of his clauses, in fact, afford the strongest evidence against his own Bill. For instance, the third clause contemplates the case of a person in extremis giving away half his estate to the prejudice of his heirs; an act which that clause considers primâ facie evidence of such a feebleness of understanding that it requires that one of the witnesses shall be a medical man, who shall endorse, as it were, on the back of the instrument, that the testator, at the time he signed it, was a person of sound mind. Now, here is the best possible evidence.—that of the framers of this Bill themselves—that such proceedings ought to be regarded with the utmost jealousy, and looked at in the true spirit of the-Act of George II. as pregnant proofs of a disordered mind. Again, the 6th Clause contemplates a case still more extreme—that of a party on his death-bed disinheriting all his heirs and relations, leaving them altogether destitute. In such a case, a power is given to the Lord Chancellor to treat these beggared orphans and this destitute widow as paupers, and to make out of the estate some wretched dole, merely to support existence, as an act of charity due from the tender mercy of the law to repair the extreme injustice of the testator. As to the 7th Clause, I am not learned in the proceedings of courts of law, but I understand that their present policy is to put the most strict construction on all bequests for charitable purposes. They assume, that unless the bequest can be supported in the deed, no extension whatever shall be given to the meaning or supposed intention of the donor—a rule contrary to the doctrine of c'y près, which this Bill
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carries further than any judgment or any law has yet ventured to go. I confess that I have a very strong opinion on the general question, which, however, I will not urge now, further than to say that the area of these islands being limited, and the accumulation of wealth desiring investment in land being great, it is not desirable more than at present to tie up land and to place it extra commercium; at the same time, I do not deny that every encouragement ought to be given to the endowment of charitable institutions by private individuals. On the other hand, I believe there is no point in the present state of our law more difficult to define than what is a religious use. The Statute of Henry VIII. did define them so far—it set aside all religious uses as superstitious that were not specified in the Act; and then it proceeded by express specification to narrow this general term of religious uses. They were the endowment of parish churches, and the perpetual support of a priest for ever. But what does the noble Lord do? He proceeds by his second clause to legalize grants towards all religious or charitable purposes whatsoever which are not prohibited by any law or Statute in force, and are not contrary to public policy. Now, setting aside the difficulty of defining what are religious uses, who is to define "what is not contrary to public policy?" Such questions are difficult indeed for the Legislature to determine; but send them to Westminster-hall, and you adopt the most dangerous possible course. If this Bill were to become law, I am confident that a larger number of suits would arise out of it in the next ten years than has grown out of the legislation of the last half century. A question of what is and what is not a religions use may be a fit one for lawyers to determine; but the proposition of the noble Lord's clause which calls in the courts below to determine what is or is not contrary to public policy is a subversion of the judicial, and a dereliction of our legislative functions. Upon the whole, then, I am very strongly of opinion, that if there be no legislative necessity for this Bill—if the experience of the last century shows you, that under the Statute of George II. there is no undue limitation as regards personal property, there is nothing in the circumstances of the present moment which makes it politic for us to remove those restraints which experience has rendered necessary. On the other hand, there are some considerations

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which lead me to look on the present time as most inopportune for such a course. But I do not wish to press those considerations now; and I have therefore generally stated the reasons why I think we ought not to agree to the second reading, and why, without meaning the slightest disrespect to the noble Lord, I shall oppose it. The right hon. Baronet concluded by moving that the Bill be read a second time that day six months.
MR. PHILIP HOWARDshould give to the second reading of the Bill his support, without pledging himself, however, to its details. There was one clause of the existing Act which had been alluded to by his right hon. Friend the Home Secretary, which perhaps would require grave and mature consideration before it was altered, and that was the clause restricting the grant of property for charitable purposes unless the grant should have been made a year previous to the death of the testator. He (Mr. Howard) thought, taking it all in all, it was desirable that a due regard should be had to the interests of heirs and the public by restraining the testator from granting large sums of money during a time when he was in a feeble state of health. Whether the time should be a year or half a year was a subject for consideration; but he thought the principle of that law was sound, and that it would be impolitic to deviate from it. With this qualification, he was disposed to give the fullest praise to the measure. It was to avoid legal chicanery, and to give to charity a due and legitimate channel, that the noble Lord had brought forward his Bill, and he had given to it the most mature consideration; and it came prefaced to the consideration of the House by the labours and investigation of a Committee, and he trusted that the principle at least of the Bill would receive the solemn sanction of the British House of Commons.
MR. MONCKTON MILNEScould not agree with the observation of the right hon. Baronet the Home Secretary, that the Act of George II. had worked well in this country. He could not agree with him, because he did not see that the Act had effected the great moral purpose of giving to the religious and charitable institutions of the country a full and large share of the superfluity of the wealth of the country, nor on the other hand that it had, by any simple or distinct mode of procedure, prevented a great amount of chicanery or legal embarrassment. The right
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hon. Baronet said he would not go into the history of the mortmain law, nor should he; for if hon. Gentlemen would take the trouble of reading the Report that had been laid on the Table of the House, they would find in it almost all the important information that was to be obtained on the subject. He should feel very much surprised if, after studying it, they should not come to the conclusion that this law of George II. was adapted to a different state of society from that in which we now lived. It might be considered as a direct effect of the great feudal system of which we had lived to see the entire extinction. The leading characteristic of that system was the battle that was always going on between the landed proprietors and the different corporations; and the landowners having, as they now had, the power of making the law in their hands, used that power somewhat more unmercifully than they had done of late years. The corporations of that period were treated with a great deal more harshness than even such corporations as the Anti-Corn-Law League were treated in the present day. The object of these laws was to prevent corporations, either ecclesiastical or lay, from accumulating large masses of property to the injury and detriment of the landed interest of this country. That was the real basis of the matter, in its political consideration. He could not but allow that it had also its religious bearing. It was to be remembered that at the period of the reformation nearly one-third of the land of the country was in the hands of the Church; and if it had so remained vested in the Church, the proposition of his noble Friend (Lord John Manners) would be not only very superfluous, but exceedingly unjust. It was, however, to be considered; that the Reformation in England had produced effects that it had not produced elsewhere. It caused the alienation of those great masses of property from important public purposes to be squandered on favourites; and with profligacy unexampled the nobility had plundered the wealth of the Church. In part of Germany, and especially in Saxony, the landed estates of the Church had been transferred to civil and religious corporations for great public purposes, and had laid the foundation of that system of German education from which Germany now derived such signal advantage, and from the loss of which England now stood intellectually in such a melancholy position. When he considered these things, and that there had been an alienation of those masses

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of property from public purposes, he must say that any law which placed an impediment upon any individual, to prevent him from making a sacrifice for those public purposes, was an injurious and unnecessary law. He did not think—when they considered the state of public opinion in the time of George II., and when they saw how little the interests of the people were regarded at that time in this country—that the preamble of an Act of Parliament, asserting that great evils had flown from certain measures, could now be considered as a valid argument against the proposition of the noble Lord. With respect to the remark of the right hon. Baronet, that difficulties would arise respecting the interpretation of the words "superstitious uses," he could not deny, that, as the law stood now, those difficulties might occur; but he would be most happy to aid in bringing in some Act to clear up those difficulties. He thought they could hardly now determine what were to be called superstitious uses. The term had reference to a period in this country when the law took upon itself to judge for the consciences of men; that time had passed, and they should now leave the definition to the conscience of each individual. With respect to uses relating to matters of public policy, he thought that was a matter which it would not be difficult for the Judges to decide. He trusted, therefore, that the Government would allow this Bill to go into Committee, or if they did not consent to do so, that they would themselves propose some measure. He should give his full support to the Bill; and he hoped his hon. Friend the Solicitor General would apply his great legal acuteness to improving it in Committee, rather than reject it altogether.
SIR G. GREYwould not have thought it necessary to trouble the House with any remarks, concurring as he did with the right hon. Baronet in opposition to the present Bill, had he not been a member of the Committee on the Law of Mortmain to which allusion had been made. He wished to state how far he was responsible for the Report. When that Committee was appointed it was late in the Session; and during the time that he (Sir G. Grey) was in town and attending the House, he had attended the meetings of the Committee, He had heard a great mass of evidence adduced by the noble Lord before the Committee; but he was compelled to leave town before the termination of the Session, and the Report of the Committee was
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made after he left town. The Committee consisted of six or seven individuals; and various paragraphs of the Report, he believed, were only adopted by the casting vote of the Chairman. Though he (Sir G. Grey) thought the subject deserving of attention; though he was prepared to say that the law was not in a perfectly satisfactory state; and though he was prepared to support some reasonable and practical amendment of that law, still he was not in any degree responsible for the Report of that Committee; and as a member of that Committee he was now prepared to offer the most decided opposition to the second reading of the Bill. The evidence adduced before the Committee certainly proved that there were some anomalies in the existing law, and he was prepared to remedy such anomalies. He must remark that the right hon. Gentleman was not correct in stating that there was an unlimited power given even over personal estate; for it had been held by courts of law that money invested in mortgage, in turnpike trusts, and in railways, was in an analogous position to land. It appeared that partial relaxations of the law had from time to time taken place, for the purpose of allowing churches, parsonage houses, and schools to be built; and he would be prepared to support a proposition for the amendment of the law, and the consolidation of those enactments. Lord Hardwicke had stated very distinctly the reasons which induced the Legislature to pass the Act of George II. The chief reason was to prevent the locking up of land, and also to prevent persons from being prevailed upon in their last moments to give away their property. One of the witnesses examined before the Mortmain Committee, Mr. Matthew, gave the following evidence as to the extent to which a relaxation of the existing law was desirable. The Chairman having put the question—
"What in your opinion would be the practical effect of a repeal or alteration of the 9th George II.?"
Mr. Matthew replied—
"That would depend on the extent of the alteration or repeal. If it were absolutely repealed, I think the practical effect would be that a great deal of land would be conveyed imprudently to charitable uses, and that a good deal of mischief which the Statute of Mortmain aimed at would be the consequence; but I think an alteration, if prudently made, so as to give sufficient liberty and a limited extent for the free settlement of such charitable estates as I have mentioned, would be of very considerable benefit; by benefit I mean not merely promoting the particular

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views particular religious bodies, but of the country generally, as tending to facilitate the means of religious and secular instruction in many places where it is vastly and pressingly needed."
Again—
"I much doubt whether it would be wise to relax this Statute on the subject of wills. It appears to me that it might give a very undesirable opportunity to ecclesiastics and other persons, of whatsoever denomination they might be, to surround the death-bed with a very improper importunity, producing the evils which this Act sought to remedy."
Within those limits there was room for improving the law. A good deal had already been done to promote the erection and endowment of churches; and, if greater facilities could be afforded to parties who wished to make provisions for the instruction, religious and secular, of a growing population, he thought that, without trenching on the principle of the Act 9 George II., an amendment of the existing law was desirable; but he could not approve of the measure now proposed. In the 3rd Clause of the noble Lord's Bill, the certificate of three witnesses was required in the case of a death-bed bequest. What did the noble Lord intend these three witnesses to certify? Not only that the testator was of sound disposing mind, but that he had executed the deed of his own free will, and without any undue solicitation. What could the medical man know on the latter point? In conclusion, he begged to repeat, that he concurred with the right hon. Baronet (Sir J. Graham) in opposing the Bill.
VISCOUNT CLIVEsaid, that the right hon. Baronet who had just sat down had treated the question in a very different manner from the right hon. Baronet the Secretary for the Home Department. The right hon. Baronet having been on the Committee, was willing to grapple with the question, to agree to relaxations of the law, and bring it into a state in unison with the wants of the times; but the right hon. Baronet the Home Secretary said he would have nothing to do with the question, he would reject the Bill, and stand upon the experience of the century during which the Act of George II. had been in force, forgetting that in twenty-five years from the passing of that Act its provisions and workings were found so oppressive, and so calculated to put a stop to charitable and good works, that a special Act was passed, exempting Queen Anne's Bounty from its operation; for the building of churches had been stopped by it. Who, in modern times,
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were the greatest innovators of the Act of George II.? Why, the Government to which the right hon. Baronet belonged, both in Ireland and England. Had they not passed the Charitable Bequests for Ireland, which allowed property to be applied to such purposes; and had not what was commonly called Sir Robert Peel's Act for England allowed grants of real property for the building of district churches, and for providing ministers and perpetual curates, notwithstanding the law of mortmain? This anomaly was thus created, that there might be a mother church with a small endowment, to which no grant could be made, while a district church in the same parish might be endowed ab libitum under Sir Robert Peel's Act. The Ecclesiastical Commissioners also had power to receive land in spite of the law of mortmain. As to the doctrine of "c'y près uses," all land was liable to become of greater value than when left by the testator; and the Court of Chancery would interfere to apply the surplus funds, without abuse, and extend the institutions to which they applied in a spirit conformable to that of the original donor, and prevent misappropriation by trustees. There was a large property in the town of Ludlow now in Chancery, in which the Court was prayed to make such an appropriation as would prevent the money from being squandered without benefit to the institutions. There was also an ancient hospital in Northampton, in which the Court of Chancery had increased the number of poor men who were to be maintained, and applied part of the funds to building schools and churches in the district. Now he could not think it would be necessary that bequests should be disposed of by the jurisdiction of the Court of Chancery. If this Bill were proposed to be an imperial law, there might be some grounds for the objection of the right hon. Baronet the Secretary for the Home Department; but as the Bill did not apply to Scotland or to Ireland, he did not see why the right hon. Baronet should hold out to the House the Statue of 9 George II., as the palladium of the Constitution. In Scotland, though at the time of the Reformation no country possessed a population who ran riot to a greater extent, there the ecclesiastical institutions had been then completely overthrown by the interest of the nobility and the vehemence of popular prejudices, and yet in no country was there a more strict law of entail. In spite of that, however,

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the only restriction upon bequests to pious and charitable uses and purposes was, that the bequest must be by deed or will executed thirty days and twelve months, as the present Bill proposed, before the death of the donor or testator. On this point, the evidence given before the Select Committee by the Lord Advocate of Scotland was very important. He stated, that he did know an instance in which this power had ever been abused, or where property had ever been left to a charitable institution, to the prejudice of the lawful heirs of the testator. Considering the great infringements which had been made in this law by Her Majesty's Government; considering the state of spiritual destitution which prevailed; considering that the Statute of 9 George II. neither applied to Ireland or to Scotland; considering, also, that according to the evidence of Mr. Bury, it was shown that in the Colonies, or at least in Jamaica, which was free from those restrictions, the most beneficial results had been attained, he did not think that he was asking too much of the House to alter and amend the laws relating to the disposition of property to pious and charitable purposes. By this means private benevolence would be promoted, and a supply of the means of instructing an increasing but impoverished population, acquired. They did not seek by this Bill to burden the country with the repayment of loans for the construction of workhouses, but to obtain a supply of that sort of charity which will neither degrade the recipient, nor impose a burden upon the industrious classes of the community. He hoped therefore that the House would not hesitate to go into a discussion of the provisions of this Bill, with a view to make such reasonable alterations and amendments in the law as would prevent charitable purposes from being defeated by mere technicalities.
SIR R. H. INGLIS, while he admitted that his noble Friend who had just sat down, had supported with great zeal and ability this Bill to which his own name was attached, thought his noble Friend did not seem to comprehend the extent to which the measure would go. His noble Friend said that the provisions of the Bill would not extend to Scotland, to Ireland, or the Colonies. Now, to exclude Scotland, and Ireland, and the Colonies from the operation of this Bill, it ought to contain a clause of exception, such as was invariably inserted in all Bills intended to have a special and
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limited operation. This Bill, however, contained no such clause; and therefore he apprehended no lawyer would contend that the Bill, if passed, would not take effect in all parts of Her Majesty's dominions. Because the Charitable Bequests (Ireland) Bill had been passed by the present Government, that afforded no reason for saying that this Bill ought to receive the sanction of the Legislature. He had strongly objected to the Charitable Bequests Act for Ireland, and he strongly objected to the present Bill; and he thought that many hon. Members who had supported the first-mentioned Bill, might, with great justice, object to the present measure. His hon. Friend the Member for Pontefract (Mr. Monckton Milnes), whom he did not now see in his place, had spoken of amateur lawmakers bringing in Bills which the profession could not comprehend, and which the Judges could not understand; and he had volunteered an opinion in the presence of the two hon. and learned Gentlemen the law officers of the Crown, and also of two other distinguished members of the same profession, that this Bill was much more intelligible to barristers, and would be capable of being decided upon by Judges of the land. He wished to meet his hon. Friend at the outset, and to question his facts. His hon. Friend had chosen to draw a comparison between the progress of the Reformation in England and its progress in Germany; and he had said that, while in England the great mass of ecclesiastical property had been confiscated to a profligate nobility, in Germany it had been applied to the sacred purposes of education. He begged to ask his hon. Friend if he knew what had become of the two noblest ecclesiastical institutions in Suabia, and whether he was aware that one of them had been converted into a glass manufactory, while the other was devoted to the manufacture of cotton? His hon. Friend had exhibited in the statements he had made to the House, but little acquaintance with facts. He admitted that at the time of the Reformation one-third of the landed property of England was in the possession of ecclesiastical bodies—that was the lowest estimate that had ever been made; others had reckoned it as much as two-fifths. In the abbey of Glastonbury the value of land was estimated in the year 1719 at no less than 500,000 l. per annum; and it was in order to put an end to grants to so vast an amount being continued, that the Statute of George II. was passed. But every Act

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passed by the Legislature was met by some new device invented by the ecclesiastical bodies in order to evade the law; and hence further legislation was called for at the end of about every ten years. His noble Friend who had introduced this Bill would remember, that about four years ago he (Sir R. H. Inglis) had, by some observation, induced his noble Friend to suppose he was not unfavourable to some alteration in the laws of mortmain. He admitted that there were some difficulties, such as those which had to-day been pointed out by the right hon. Baronet the Member for Devonport (Sir G. Grey); but to cure those difficulties he was not prepared to sanction a measure so vast and sweeping as that now under consideration. Besides, he thought that the objections urged by the right hon. Baronet the Home Secretary, in reference to the political economy of the question, had not been met by any hon. Member who had yet addressed the House. The right hon. Baronet had put the question of charity on its true ground; and he concurred in the opinion that the foundation of charity, public as well as private, was self-denial. And where was the self-denial exercised by any individual who would deprive his family of their just expectations that they would succeed to the wealth which formed the accumulation of his life, by bequeathing it to strangers, however exemplary the character and conduct of those strangers might be, and deserving of support the charity of which they might be the trustees? The right hon. Baronet opposite (Sir George Grey) had directed attention to the provisions of the 3rd Clause of the Bill, but still he hoped to be allowed to offer one more observation upon a minor point in that clause, but which was worthy of the consideration of the noble Lord, the framer of the Bill. The Bill contained no interpretation clause, as usual, declaring that the word "man" should be taken to mean "woman," and other equally singular incongruities. This interpretation clause was omitted from this Bill; and though it provided effectually against the exercise of an unsound discretion on the part of a testator, it left a testatrix altogether unprotected. The females want protection. Did the House remember a case that had been recently before the public—he alluded to the case of Ann Frances Calbeck. This lady had lived for thirty years in the house of her brother upon terms of the greatest affection; and she had given every reason to the rest of the world that her brother
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would succeed at her death to her property. It appeared, however, that she had been ordered by her spiritual director to draw up a will in favour of a religious community among whom she worshipped, and which on her death succeeded to her property. The will was drawn up not in her writing, but at her verbal dictation to the Roman Catholic Dean, the Rev. Dr. Meyler. [Mr. O'CONNELL: It is contradicted by a letter of Dr. Meyler.] Did the hon. and learned Member for the county of Cork mean to state that the will was executed on the written instructions of the testatrix? [Mr. O'CONNELL: I will state the facts of the case by and by.] The will, it appeared, was executed at the chapel of the Rev. Dr. Meyler, and was left in his possession, instead of remaining in the custody of the testatrix, so that if she had changed her mind she would have had no means and opportunity of carrying the change into effect. But it remained in the possession of the Rev. Dr. Meyler: it was admitted to be proved; and though the father of the lady endeavoured to set it aside, he was defeated. To these facts he believed that no contradiction could be offered; and he contended that this case showed the necessity of the female sex being protected. They were not so protected by the terms of the clause in the Bill by his noble Friend the Member for Newark. It was said that this Bill came forward backed by the recommendation of the Select Committee which had been appointed to inquire into this subject. On referring, however, to the last clause of the Report of that Committee, he found that they stated—"Your Committee do not feel authorized by the terms of the reference to report in favour of any specific alteration of the law of mortmain;" and the prestige of a Bill coming forward on the recommendation of the Committee was negatived when it was seen that, on a division, the Committee voted three to three, and that the noble Chairman had closed the proceedings by giving his casting vote. Under such circumstances, while he thought the Committee were entitled to every credit for the work they had done, yet he hoped hon. Members would not be led to give an incautious vote in favour of the second reading of the Bill. Let them remember that the provisions of this measure were intended to take effect in all cases not prohibited by law, or which were not contrary to public policy. Now, the public policy had been to afford meagre assistance to the

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Established Church, and to discountenance the Church of Rome; and under this Bill the policy hitherto pursued would be rendered nugatory. There were still several other points worthy of the attention of the House, with regard to this measure. To one of those points he could not refrain from alluding. Let the House look again at the 5th Clause, and say whether it were just or proper. Under it, every debt contracted by a man after the date of the grant or gift, was defeated. Prior to the execution of the grant it provided that no such grant should operate to the injury of any creditor; but the same security was not given in reference to the payment of any debt contracted afterwards. On another point his noble Friend the Member for Newark had shown some qualms of conscience, because he provided that in the case of every widow left destitute, or child left unprovided for by such dispositions of property to charitable uses as this measure contemplated, it should be competent for the Lord Chancellor to award them a provision; but after that it was equally competent for another Lord Chancellor to annul the previous order. On the whole, he objected entirely to the present measure, which was wholly at variance with the whole course of public policy pursued ever since the Reformation.
MR. O'CONNELLsaid, he should have felt much more grateful to the hon. Baronet if he had condescended to communicate with him before he had made a statement which was unjust to Dr. Meyler. The hon. Baronet had no better proof of the facts he had stated than a newspaper. [Sir R. INGLIS: It was a report of the trial.] The facts were these: The will was deliberately made and proved; the cause was debated on both sides, and was heard before an extremely able judge, Dr. Keating, who pronounced in favour of the will, which was admitted to probate. The very rev. Dr. Meyler had no pecuniary interest whatever in the will; not one penny of the money was left to him—it was all bequeathed to charitable purposes. No community had a more respectable person than the Dean of the Archdeaconry of Dublin. The facts of the case were these. He did not pledge himself to minute accuracy on trivial matters; but it appeared that the lady lived with her brother, not her father. [Sir R. INGLIS: I said her brother.] The hon. Baronet said both father and brother.
SIR R. INGLIS: I said she had been
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living for thirty years in the house of her brother; and the father endeavoured to dispute the validity of the will.
MR. O'CONNELL: From an early period of her life this lady declared her intention to bequeath her property to charity. Her brother knew this fact, and he had the fullest opportunity of endeavouring to change her intention, but she adhered to her intention: the will was deliberatively made; and he asked, where was the evidence of undue influence? The statements of counsel, upon which the hon. Baronet had relied, were not the best evidence against the other party. He wished to set the House right upon another matter. The Statute of George II. was never enacted for Ireland; how, then, could it apply to Ireland? It did not apply to that country; there was no such Statute applicable to Ireland till the Charitable Bequests Act; and what did that do? It did nothing with reference to the law of mortmain. The Lord Chancellor (Sir E. Sugden) declared that the charitable bequests were legal, and there was not a single enactment in the Act to the contrary. Schemes for charitable bequests came before the Court of Chancery, were considered by the Master, and settled by a decree of the Lord Chancellor. The Charitable Bequests Act did not touch the matter at all: it enacted merely that the will or deed must be executed not less than three months previous to the death of the testator or grantor; that was the only limitation. See how the case stood in England. No devise of land in such a case was valid: you could not give the land itself, but you could give the full amount of the value of the land, or make the bequest a charge upon the land. There ought not to be one law for England, another for Ireland, and another for Scotland. He hoped the noble Lord would remember the lesson he had learnt to-day, not to make too great a concession to an adversary. If he had not done so, he would not have seen his concession to the prejudices of others construed into an admission of the soundness of those prejudices. The hon. Baronet said that securities were necessary. Why, a billion of personal property had passed through the Court of Probate in the last fifty years; and what securities had there been for that amount of property? It was time for some alteration, and for some relaxation of the religious rules excluding charities. Had they too much church property? Were they overloaded

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with charitable bequests? They wanted more religious instruction. "You and I," said the hon. and learned Member, "differ upon points of religion; but we agree upon this—that it is our first duty to give religious instruction to the rising generation. Do not attempt to stop the hand of charity. Of whatever sect or persuasion we may be, let us encourage bequests for giving instruction to the young; and let us not by a one-sided or rather left-handed Act of Parliament obstruct the diffusion of spiritual instruction. If the noble Lord succeeds in removing this obstruction, he will gain credit with the people of England, and with the Christian world at large."
The ATTORNEY GENERALsaid, he could not suffer this discussion to close without offering a few observations upon the subject. He believed that the noble Lord had paid the greatest attention to the subject; and it was with very great regret that, after the most careful consideration, he could not consent to the second reading of this Bill. It was necessary to understand the question. They were called upon to decide upon the propriety of repealing the Act 9 George II., c. 36, and to substitute some other provision in lieu of it. The House had been referred to a Report of the Committee of 1844 on Mortmain, for an explanation of all the details of the subject, and for proper information. He had turned to that Report, and he had found a most remarkable inaccuracy in the very outset of it; for he found it there stated that the 9 George II., c. 36, was treated and acknowledged as the existing law on the subject of mortmain. But it was not only not the existing law on the subject of mortmain, but the Act was not at all applicable to mortmain; and if the House looked at the evidence of Sir Francis Palgrave (who had been characterized as the modern Selden) they would find such a clear and distinct explanation of the Statute of 9 George II., c. 36, as should have prevented any mistake. Sir Francis said—
"In the first place, the term mortmain, in the way in which it is used in common discourse, and generally employed, is in some degree inaccurate. Mortmain, in a legal sense, means simply the acquisition of real property by corporate bodies having perpetual succession; but in common language it is applied to the restrictions imposed by the 9th George II., which prevent the giving of landed property to charitable purposes. It is very important to call the attention of the Committee to this distinction, because the erroneous or conversational sense has been sanctioned by great authorities; for example, by Sir William Grant,
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who, in a case arising upon the 9th of George II. ("Attorney General v. Stuart," 2 Merivale, 261), says, 'I conceive the object of the Statute of Mortmain is wholly political;' and if so high an authority could misconstrue such a Statute, others may not have seen accurately the bearing of earlier Statutes which have a very material influence upon the question. You think Sir William Grant misconstrued it by ascribing it to political influence? His misconstruction consists in denominating this Statute a Statute of mortmain, whereas it is not mortmain; it is a Statute for preventing the alienation of land to charitable uses; preventing, of course, real property being given to charitable corporations, as well as to trustees for charities. The Statute 9th George II. has no peculiar reference to communities having perpetual succession. It does not prevent bequeathing land for purposes not being charitable; for example, to the city of London, or to any non-charitable institution or society empowered to take land. The Statutes of mortmain apply generally to all corporations having perpetual succession."
Now, it would be most important for the House to bear this distinction in mind throughout the whole discussion: they must distinguish between the mortmain Acts and the 9th George II., c. 36, which was no Mortmain Act at all, but was passed to prevent devises of land altogether, and gifts, except under restrictions, for charitable purposes. With regard to the Mortmain Acts: the first was Magna Charta, as confirmed by the 9 Henry III., which first imposed restrictions upon gifts of land to religious houses; and it only prevented religious houses from taking such gifts, and leasing the lands so taken back again to the donor, whereby certain incidents of tenure were lost to the Lords. That Act was intended to prevent such gifts to religious houses; it only applied to the regular and not to the secular clergy; and one of its objects was to secure certain civil rights to the lords and the State. It was curious to trace the history of the struggle between the ecclesiastical bodies and the Legislature on the subject of the Statutes of mortmain. The ecclesiastical bodies were desirous of evading the Statutes; and the object of most of the legislative enactments was to provide a remedy for particular devices as they grew up. The next device of the ecclesiastical bodies was to take long terms of years, which was the origin of the long terms in our family settlements. The 7 Edward I. provided that no person, religious or other, should acquire for a term of years land in mortmain, under penalty of forfeiture; and the 13 Edward I., introduced a provision on the same subject, and it provided against another evasion, by what was termed common recoveries,

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enacting that the questions as to the right of the plaintiff or demandant should be decided by a jury. The clergy then devised the distinction now preserved between the use and the possession of lands, which was not granted to themselves, but to nominal feoffees, the religious houses reserving all the profits to themselves. The 15 Richard II., c. 5, introduced a provision by which no such purchase could be made in future, and enacted, that such lands already purchased should be amortized by the King, or the landlord. And this Act of 13 Richard II. for the first time applied the mortmain Acts to secular corporations, as well as spiritual corporations. The 23 Henry VIII., afterwards prevented gifts in mortmain for superstitious uses. Thus the law continued both as to mortmain and superstitious uses, with the exception of the 7th and 8th William III., which empowered the Crown to grant leases to corporations to hold lands in mortmain, and provided that no gift or devise to a spiritual or lay corporation should be valid without a license from the Crown; but there might be a gift or devise of land or of money for charitable purposes without any restriction whatever. Such being the state of the law, the Act 9 George II. passed. The Committee had said that "they had failed to arrive at any certain knowledge of the true grounds on which that Act was passed." He (the Attorney General) had looked at the Act itself, and it was evident, by the words of the Act, what motive had induced the Legislature to pass it. He found that although the title was general (the title was no part of an Act of Parliament), the preamble and the enacting part showed what were the intentions of the Legislature, and the mischiefs they meant to guard against. The preamble has this recital:—
"Whereas gifts, or alienations of lands, tenements, or hereditaments, in mortmain, are prohibited or restrained by Magna Charta, and divers other wholesome laws, as prejudicial to and against the common utility; nevertheless, this public mischief has of late greatly increased by many large and improvident alienations or dispositions made by languishing or dying persons, or by other persons, to uses called charitable uses, to take place after their deaths, to the disherison of their lawful heirs."
Now, when he saw that the preamble, which was frequently called in the profession the key to the meaning of the Legislature, states that these alienations were made by persons to the disherison of their lawful heirs, he could not doubt what was
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the mischief it was intended to prevent. The enactment was applied, therefore, precisely and specifically to the mischief. The Act prohibits altogether any devise of land, or that which savours of the realty, for charitable uses; but it allows gifts of land to be made for that purpose, if made by deed executed twelve months before the death of the donor, and enrolled within six months after its execution. It had been apprehended that persons might be influenced in moments when the mind was weakened and the body broken down by disease, to give away their property. But this danger was not thought proper to be guarded against in the case of personal property, which had no local, permanent, or visible character; the Legislature showing their feeling on the subject by making a distinction between the two species of property, and preventing the testator from exercising the power of giving away his real or landed property, while no such restriction was imposed upon him with regard to personal property. Let it not be imagined that at the time this Act was passed there was any apprehension that Roman Catholic priests would influence dying penitents, and that this was the danger intended to be provided against. On the contrary, when the Act of 9 George II. was framed, Roman Catholics did not enjoy the power of holding or using land; for it was not until the 18th of George III., or forty-two years afterward, that they were allowed to take land. The object of the Legislature was to prevent the undue influence which was likely to be exercised at the approach of death in favour of pious and charitable uses. Such being the law of the case, the question naturally arose, did any great mischief result from the provisions of the 9th of George II., which called for the interference of the Legislature at the present moment? In satisfying himself upon that point, he naturally turned to the evidence taken before the Committee which had sat on this subject; and after reading over the whole of that evidence as carefully as his other engagements would permit, he had laid it down with the impression that there had been no case made out of any crying mischief which called for this or any other remedy that could be proposed. When he attempted to ascertain what were the views of the different individuals who appeared before that Committee, he could not help feeling how difficult and dangerous a task it was to attempt interfering with the law,

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and how apprehensive persons ought to be of the consequences of such interference—consequences which it was often almost impossible to have anticipated. He found that one witness was for upholding the existing law in its full vigour; that another was for making it infinitely more stringent; while a third, a man whom they all esteemed and respected, the Bishop of London, was disposed to relax the law in favour of the Established Church, but not one step further. And when the noble Lord stated that all the conveyancers denounced the Act of the 9th of George II., he should have made an exception with regard to the evidence of Mr. Hodgson and Mr. Mathews, both of whom were opposed to a repeal of that Act, especially with regard to wills, though they would slightly alter its provisions with respect to deeds. He altogether denied that the practice of the Legislature in later times had been to relax the laws of mortmain. Although in the case of the Queen Anne's Bounty, and some other favoured instances, the law might have been, to a certain extent, relaxed, yet it should not be forgotten that very lately the Legislature had given its sanction, in the passing of the Charitable Bequests Act, to an extension of the law to Ireland. By the Act to which he alluded, the principle of the Act 9th George II. was applied for the first time to Ireland, as in that country no restriction of the kind had previously existed. He would beg to refer the noble Member for Shropshire (Lord Clive) to that fact, in answer to his allegation that the principle of the law had been relaxed. As the arguments against the measure had been nearly exhausted by hon. Gentlemen who had preceded him, he would not detain the House by going further into them. It had been stated that there were no instances of the ministers of any religious denomination influencing dying persons to leave property for religious purposes; but, on this subject, he would beg to call the attention of the House to some of the answers given by the Rev. Mr. Sherburne and the Rev. Mr. Trappe. The former rev. Gentleman stated this in his evidence (Question 1,104), in answer to the following question from the hon. Member for Pontefract:—
"Would you admit it to be a doctrine of your Church, upon which you would practically act, that it would be your duty, in case you found a penitent upon his death-bed, to incline him to leave bequests to charitable and religious purposes, for the advantage and good of his soul?—I never
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have recommended anything of the kind, and the probability is, that I shall never do so; but then, if a person looks upon certain spiritual deeds as beneficial, and he is unable to do those of one kind, he may properly, I think, do those of another; a person, for example, cannot pray much, and he cannot do many other things of the same kind when he is very ill, but he can give alms sometimes, and he can do such things as are very well deserving of recommendation; but as to urging a person to do anything of the kind, I would never do it; but if a person should say to me, 'Is it not well to do so?' I should say, it is well.
"My question was, whether such conduct, or persuasion of the penitent, would be considered as dogmatically incorrect?—I think it would not be dogmatically correct."
Again, the Rev. F. Trappe stated, in p. 149 of the evidence, in answer to the Chairman (Lord John Manners)—
"Is it your opinion that the Catholic clergy have the means of exercising undue influence to procure money from their penitents, to the injury of their families?—If they are so profligate as to avail themselves of it, they certainly have the means; and I am quite certain, in practice, that I could often have got large sums, if I had tried.
"Have you any reason to believe that any Roman Catholic clergyman does use that influence?—Yes, I have had reason to believe so; not in very great sums.
"Do the Roman Catholic clergy interfere in making wills for their penitents, so as to get property for themselves, or for charitable purposes?—I believe so; and I have heard of instances from such respectable authority, that I can entertain no doubt that it is sometimes done."
Now, it appeared that the Rev. Mr. Trappe was under suspension at the time he gave that evidence; but then he was either a respectable person, or he was not. If he were respectable, his evidence must have weight; if he were not, then the House should consider the danger of such persons surrounding the death-bed of penitents. He thought it unnecessary to enter into the different clauses of the Act. The noble Lord had relied on the fact of particular formalities being required in some cases; but then the cautions and safeguards suggested by the Bill were only to be used on occasions when the donor was giving away by will or deed more than half his entire property, estates, or effects, whether real or personal. It appeared to him that no case whatever had been made out against the 9th of George II.; that the points relied upon were inconsistent and unsatisfactory; and that the noble Lord had, therefore, failed in laying a foundation before the House for the changes proposed by this Bill. He thought it would be most dangerous for persons inops concilii to be permitted to dispose of their property, real as well as personal, to the

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prejudice of their heirs and relations; and on these grounds he certainly could not give his consent to the second reading of the Bill.
MR. CHARLES BULLERsaid, long as this discussion had been protracted, he would make no apology to the House for trespassing for some minutes on their attention in reference to the subject before them, not only because his name appeared on the back of the Bill, but also because, since the first introduction of this subject to the House, he had always supported the noble Lord upon it, and because, almost without exception, his hon. Friends on that (the Opposition) side of the House had given no support to this Bill. He wished, therefore, to state the reasons which had urged him to give his most cordial support to the proposal of the noble Lord. He would not follow the arguments either of the hon. Member for the University of Oxford, or of the hon. and learned Gentleman who had just sat down, or the speeches made by other hon. Members, with respect to the minute details of the Bill, as these were points which could best be discussed when the Bill got into Committee, which he did not despair of seeing. That to which he called the attention of the House more directly was the principles of the Bill, and the objects which it had in view. He might say generally that the object of the Bill was to effect a uniformity of the law with respect to real and personal property. That, he should say, was an object which was in all instances desirable to effect to as great an extent as possible, in order that the holders of different kinds of property might not be confused by the conflicting operation of the laws made for their regulation. In the matter at present before the House, he thought that a sufficient case had been made out from the evidence to show that it would be, at any rate, desirable to put the law with regard to real and to personal property upon the same footing; and for this obvious reason, that the distinctions made by the law between real and personal property were not always understood by the lawyers themselves, and were most undoubtedly not understood by the public generally. In proof of this fact, he need only observe, that many instances had occurred in which property, treated as personal property, had been found afterwards to come under the restrictions applying to real property. Now, that was an evil which they had a right to remedy. He would say that in England the law should
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be so clear in this respect that all persons should be enabled to know what property they might devise for charitable purposes, and what property they could not so treat. To do this, were they to make the disposition of real property as free as in the case of personal property, or were they to place on the latter the restrictions which existed with regard to real property? for hon. Gentlemen opposite ought to carry their argument to that extent. They were guilty of an inconsistency in putting forward, as the ground on which they opposed this Bill, the necessity of continuing restrictions in the case of real property, while they declined extending the same restrictions to personal property. Were they to show that jealous care of real property, while they neglected personal property, which required their care still more? Were they impressed with the idea that while the churchman was to watch by the bed of the rich proprietor of land in his last moments, unable to take any advantage of the dispositions of nature at that awful hour—while the law gave that protection to the owner of real property—no provision was to be made for that far more numerous class whose sole possession consisted in personal property? The landed proprietors of England were, after all, a comparatively small number in respect to the holders of personal property; and on which of the two classes would frauds, if perpetrated at such moments, operate most severely? Most undoubtedly on those who were dependent on personal property. If they could persuade the rich gentleman having 10,000 l. a year in landed property, to leave a portion of that property to the Church, or for any charitable uses, the evil would be far less felt than in the case of the poor man who might take a part of his small property from his family to apply it to similar uses. Surely the protection extended to the rich man, ought, by a just and wise Legislature to be also insured to the poor man, whose only property consisted in personal estate. The retired tradesman, the retired professional man, the retired merchant, and the annuitant who lived on the interest derived from funded property, might each give away his property for charitable or religious uses without the slightest hindrance; but the moment the landed proprietor was concerned, then the Legislature at once interfered, and declared that he should not disinherit his heirs. He maintained that if the one class were subjected to these disabilities, the

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other class ought to be treated in a similar manner; and therefore if there were any force in the objections put forward against this Bill, it was gross inconsistency in that House not to extend the same protection to the holders of personal property, which, as landed proprietors, they extended to themselves. They had the unequivocal declaration of the right hon. Baronet opposite, that all personal property was exempt from the operation of the existing law, of which they complained; but they had at the same time the fact, of not the slightest complaint or allegation of improper interference with dying persons by their religious attendants. He would submit, therefore, that these facts proved hon. Gentlemen opposite to be insincere—if he might use the term without offence—in the course which they adopted. They elevated the supposed dangers to a disproportionate magnitude when they wished to resist an alteration of the law; but they, at the same time, showed by their conduct that they felt perfectly convinced that the great majority of the community went on perfectly well without requiring the safeguard of this law, the necessity of which was so strongly contended for. With regard to the 45,000,000 l. a year of personal property which was bequeathed in this country, there were no complaints alleged. Was it not, therefore, fair to suppose that the owners of personal property were quite sufficiently anxious to provide for their heirs? And this feeling experience showed to be ten times as strong in regard to the transmission of real property. These were the grounds on which he supported this alteration of the laws of mortmain. He did not think that it was a mischievous thing in any country for persons on their death-beds, or at other times, to appropriate any portion of their property to public purposes. It seemed to him that the feeling was strong enough among mankind generally to take care of their heirs and relations. Not only that natural feeling, but also the custom of this country in maintaining the law of primogeniture, tended to prevent persons from being too much inclined to separate their property in order to devote portions of it to public or charitable uses. He thought that it would be more consistent with the real wants of the age to give every possible encouragement to the appropriation of property for public purposes. There was certainly no indisposition among their countrymen, or no disinclination to devote their energies and their lives to the accumulation of large
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properties for themselves and their families. The feeling was also, he thought, prevalent in favour of leaving the great bulk of the property with the eldest son, in order to try to found wealthy families, and to vie with the aristocracy. The same feeling respecting the transmission of large properties also prevailed among the aristocracy. That feeling was one which, in his opinion, no wise and enlightened Legislature should wish to encourage. On the contrary, they ought to promote any tendency which might exist in favour of devoting some portion of private accumulations to the great wants of the country. They had the fact of great annual subscriptions being collected for religious and charitable purposes; but they had no instances, like those in former ages, of individuals founding magnificent churches and colleges, and other public institutions. The disposition to grant property for public purposes was, in his opinion, a laudable disposition, and one that ought to be encouraged. He would say, too, that they had no reason to apprehend that this disposition would be carried to too great lengths. The feeling of the present age was not in favour of founding colleges or other great public institutions, merely with a view, on the part of the donor, of leaving his name to posterity. The Act of the 9th George II. was in his view quite sufficient to show that they need apprehend no danger from its repeal; and he would also submit that every argument of public policy would lead to the necessity of establishing uniformity in the law. He believed that there was nothing would prove more beneficial to the Established Church than an alteration of this law; and on this point he differed altogether from his hon. Friend the Member for the University of Oxford. He had always looked back to the policy of their ancestors as a wise one, which encouraged in every possible way the making the Church independent of the support of individuals, and to provide for its ministers by appropriating property for their use which they would hold in the same manner as other possessors of property. His hon. Friend, with his usual liberality on such subjects, said that he thought the principle of the law of mortmain ought to be relaxed in favour of the Established Church, but not in favour of other religious persuasions. There again he should differ from his hon. Friend. He would treat all religious communities in the same manner. Was it right that all the property belonging to dissenting

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bodies should be held by—he would not call it evasion of the law—but by a constant application of the provisions of the law, which enabled them to hold property in perpetuity by continual re-settlements? That was not a desirable state of things to have continued with reference to the Wesleyans, and other religious bodies, who had to depend on the liberality of their flocks. It would, he thought, be far better to do away with all that cumbrous machinery, and tell these bodies at once that they might come under the operation of the law. He did not think that it had been at all shown that the properties of public bodies were worse managed than those of individuals. If they looked to Greenwich Hospital, and to the Universities and Colleges, they would find that these institutions were attended to, not for the good of the immediate possessors, but for the benefit of the institutions in perpetuity. He would not say that the estates of corporate bodies were as well conducted as those of some enterprising individual proprietors; but taking them on the whole, he would maintain that they were as well conducted as those of other proprietors. Having stated these grounds for the general support of the Bill, he would enter into no very minute inquiries into the details referred to by his hon. and learned Friend the Attorney General, and by his hon. Friend the Member for the University of Oxford. He could not, however, avoid alluding to the assertion of the hon. and learned Gentleman, that the Legislature had by a recent enactment extended the principle of the 9th George II. to Ireland. He would be perfectly content, for his own part, if the House were prepared to extend to England the principle of the Irish Charitable Bequests Act, with all its restrictions. As he understood it, the Act of the 9th George II. required that the grant for religious or charitable purposes must take effect immediately. One of the great merits of that Act had been stated to be that it tested the sincerity of the donor, by requiring that he should deprive himself of the enjoyment of the property during his lifetime. Now, he did not want any such test of charity or of any other virtue whatever. He thought the restriction a very unwise one, and one which afforded no fair trial of the existence of the virtue. But his hon. and learned Friend said, that the restrictions of the 9th George II. were extended to Ireland by the Bequests Act. [The ATTORNEY GENERAL: I said the
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principle of the Act was extended to Ireland.] He thought it was not so. The Irish Act only provided that bequests should be made three months before the death of the testator, while it did not require that the bequest should take effect immediately. In Ireland the testator was not deprived of a single comfort during his lifetime, as the bequest was not to take effect until after his death; and he was therefore justified in saying that the provision of that Act was totally different from that in force in England. As to other objections that had been raised, they were such as could be best considered in Committee, and he would not, therefore, enter into them at present. He trusted the House would not now go back to the feelings exhibited by hon. Members on both sides of it, when this subject had been brought forward on former years; and he would call upon his noble Friend, if he were even now defeated in his object, not to relax his efforts or to abandon the principles on which he relied, and which he (Mr. Buller) was convinced would ultimately triumph.
The SOLICITOR GENERALwould vote against the Bill, as being wholly uncalled for, and opposed both to the principle and the policy of the law of England. His hon. Friend who had last addressed the House, had correctly stated that the difference that existed, was between law that affected real and personal property; but he wondered that it had not occurred to his hon. and learned Friend (Mr. C. Buller) that it would be utterly impossible, consistently with the law of England, to assimilate real and personal property. A distinction between them almost universally pervaded the law. With respect to the disposition allowed by this Bill of real and personal estates for charitable purposes, that which was personal and was devoted to charitable purposes, was not against the policy of the law; but if the same provisions were brought to bear on real estates, they would be contrary to the first principles and the policy of the law. When he looked at the first clause of the Bill, and found that this, its essential provision, enabled any person to dispose by will or deed of real as well as of personal estates to any amount, and without any restriction, he thought it could hardly have occurred to the framer of the clause to what extent its operation would militate against the principles of the law; and it would be impossible to amend this clause without altering the whole principle of the

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Bill. He found a direct power given to a testator, at his own free will and pleasure, to dispose of real estates of any amount to any corporation without restriction. This struck directly at the prerogative of the Crown, and at the real interests of the public. It was the known law of the land that no corporation, except those created by Act of Parliament, with an express provision to that effect, could use or dispose of lands without the direct license of the Crown. This license was never granted without the advice of a Minister of the Crown responsible for the advice. Whereas under that Bill, the first direct effort contemplated was to enable any individual, without the consent of the Crown, to bequeath lands, and invest them in any corporate body for any purpose, without permitting the Crown to possess any control whatever; a power which he considered was in every way calculated to prove injurious to the best interests of the country, when left without the control of some responsible person; and if there were no other objection than that of depriving the Crown of its prerogative, he considered it would be an insuperable one, according to the constitution and principle of the law of this kingdom. And when they came to consider the true policy of the law, it created surprise that such a proposition should be made; as the whole Bill was directly against what had always been held as the public policy of this country. The hon. and learned Gentleman then proceeded to show the different effects produced upon the public by the disposal of personal and real property. In reference to the former, he said the effect was trifling, as when a person bequeathed his personal property—for instance, supposing it to be money invested in the funds or any other public security—the act of his doing so did not in any way injure the public, as the circulation of that money was not thereby withdrawn from the public, but they still retained the same benefit; but in real property it was very different, as it was a fixed estate that must remain under the control of the possessor of it alone; and it had been the policy of the country from time immemorial that the Crown should possess a prerogative over it, which had always been exercised, and which it was well known deprived landowners of the power of even entailing it upon their own offspring for more than a few generations, Land would be incapable of improvement or change according to the noble Lord's
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Bill, which he considered to be a great evil. In short, he thought the noble Lord had not considered what must be the practical operation of such a measure. At present land in trust for charitable purposes might be improved; but by the projected Bill no one who held land in perpetuity under it could deal with these lands, except according to the strict terms of the will creating the trust, or under the authority of the Lord Chancellor. Would not such restrictions put a stop to all improvements not consistent with the terms of the instrument? Was not that of itself a great objection? Whilst other lands, passing from hand to hand, were upon each change undergoing vast improvements, the lands derived under the Bill of the noble Lord would remain stationary—incapable of transition. In ordinary cases of bequests, the money would be blended with the circulation of the country; but here there was perfect stagnation, which, considering the limited geographical extent of the country, the increasing population, and the necessity for making available every inch of land for the purpose of cultivation, according to the most improved method, was, he repeated, a great objection, and one which the Legislature could not overlook. The Bill had already undergone so much discussion, that he did not feel justified in detaining the House in alluding to the different clauses; but could not help saying, that if the noble Lord had brought in the Bill at the request and by the advice of the most skilful and experienced lawyer, in order to promote litigation, he could not have introduced one which was likely to prove a more fruitful source than the present. There was not, he would undertake to say, one clause from the beginning to the end of it, which, in all human probability, would not produce twenty lawsuits every year. In one clause there was the expression "public policy," upon which the construction of the clause in a great manner hinged. What was "public policy?" The noble Lord did not go on to define it in his Bill, which was in itself a striking exception to the general course of public policy. Again, in the third section, there was a requirement, when the testator devised more than half his property for charitable purposes, that there should be a certificate, attested by three witnesses—the medical attendant one of them—"that no undue influence or solicitation had been used." The Bill did not set forth that the attesting witnesses should

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make this declaration according to the best of their belief: they must do so positively. How could they do so? It would be a most rash declaration for any man to make. But yet, if the attestation was not positive, the terms of the instrument had been departed from, and the bequest was invalidated, probably, after a tedious lawsuit. With respect to the reference to the Lord Chancellor as regarded provisions for relations, he thought it was most unsatisfactory. Such relations must be reduced to a state of destitution indeed, when they would apply to the Lord Chancellor. But how could they do so? Either by a tedious and expensive process, or by suing in forma pauperis. As to the latter, a man might be in very indigent circumstances, and yet not able to sue in that way. He saw nothing in the arguments which had been adduced which entitled the noble Lord to call upon Parliament to pass such a Bill. Several cases had been cited by the noble Lord: amongst others, that one of the late Marquess of Westminster, which he thought was not at all a case in point. The late Marquess of Westminster wished to have left certain lands for charitable purposes, but in consequence of his death the requirements of the present law were not complied with, and so the claim failed. He (the Solicitor General) had never heard of such a case; but if it had been so, there was nothing to prevent the present Marquess, as his heir-at-law, following out his intentions, supposing that the late Marquess had absolute power over the lands, from their not being entailed. He, therefore, contended that no case had been made out calling for the interposition of the Legislature: but even if a case had been made out, the principles involved in this Bill were so directly opposite to the very first principles of our Constitution and public policy, that he thought he would best discharge his duty by voting against the Motion of the noble Lord.
SIR J. HANMERwas surprised at many of the statements of the right hon. Gentleman the Solicitor General. He would not pledge himself to an unqualified assent to all the provisions of the Bill, but would vote for its going into Committee. He did not think landed and personal property ought to stand on the same footing. He would not give full rein to the desire of his noble Friend, but at the same time thought there would be no danger whatever in giving a certain defined and limited application to his Bill. He had great objection
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to the law as it now stood; for of all laws that he could conceive, the greatest nuisance of a law was that which, like the present law of Charitable Bequests, could be easily evaded. In fact the present law was continually evaded; and he would venture to say that the solicitor of any hon. Member would undertake to evade the provisions of the 9th George II. And as to litigation, he thought the hon. and learned Gentleman who had just addressed the House had been too lavish of his censure on the present Bill in this respect. He would venture to say there was no Act of Parliament, however ably and carefully drawn up, in which that hon. and learned Gentleman would not find twenty loopholes. A noble and learned Lord in the other House possessed the same facility. Lord Eldon used to fall into a perfect tremor at the sight of a new Act of Parliament; and, indeed, there was, as be had already said, no Act which was not liable to the same fault-finding. As to the present law, he knew of his own personal knowledge that it had been evaded, and that it was in fact, as to restrictive powers, but so much waste paper. Was the state of the large towns with respect to the Church satisfactory under the present law? He thought not. The hon. Baronet the Member for Oxford had appealed to Government to take into consideration the state of the Church in the large towns, and make considerable grants of public money for the purpose of bettering its condition. The Government had declined, and as he thought very properly declined, acceding to the request; but in that refusal he thought they had accepted an obligation to revise the law by which private charity was restrained. It was perfectly frightful to see the state of the Church in the large towns. He would not dilate upon the duties which a conscientious clergyman had there to perform; but every hon. Member must be aware that such a post ought to be filled by a man of the highest character and the greatest ability, tact, piety, and activity; and yet such a man received no more compensation than one of their menial servants. He would be exceedingly glad to see all the heartburning which arose out of the state of the Church in the large towns satisfactorily settled; and for this purpose the present law of mortmain must be considered. It was his determination to vote for going into Committee on the Bill.
MR. HAWESsaid, when a Bill of so

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much importance was introduced, some grand practical evil should be pointed out, to remove which legislation was rendered necessary. Now, he had not seen that any such evil was pointed out in this case; and as to the statement of the hon. Baronet who had just spoken respecting the spiritual superintendence of the large towns in this country, he thought that this Bill would not in any way facilitate the provision for that purpose which was considered desirable. He did not wish to see either personal or real property accumulated in the hands of ecclesiastical or lay corporations; and he was disposed to think that the jealousy of such accumulations, which led to the enactment of Statutes of mortmain, was founded on just principles. He objected to the principle of this Bill in toto; he did not think it was susceptible of improvement; and therefore he could not consent to go into Committee on this measure. He would prefer seeing some restrictions placed on the bequest of personal property, rather than facilities afforded for the bequest of real property.
VISCOUNT EBRINGTONwished this bill to go into Committee, though he would not pledge himself to all its details. He considered that, in the present day, instead of too much money being appropriated to charitable purposes, persons were rather disposed to expend money on their own personal comfort and that of their families. He wished to state, not with any view of affording another instance of inconsistency on the part of the right hon. Home Secretary, for that was superfluous, that the right hon. Baronet (Sir J. Graham), when the noble Lord (Lord J. Manners) brought forward a similar measure to the present, last year, expressed his opinion that such a measure ought not to be confined to the Established Church, but ought to extend generally to all denominations. Now, one of the very next measures brought forward with the sanction of Ministers, was the Church Endowment Bill, in which there was a direct interference with the law of mortmain. How was it, he would ask, that the right hon. Baronet, within a few days after making the declaration to which he had referred, could sanction a measure which interfered with the Statutes of mortmain in favour of the Established Church only? He (Lord Ebrington) considered, that if such an interference was sanctioned, the same privilege which had been accorded to the Established Church, ought to be extended to the Roman Catholics and Dissenters.
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He would vote for the second reading of the bill, without pledging himself, as he had before said, to all its details.
MR. COLQUHOUNsaid, the noble Lord who had just sat down had referred to the Church Endowment Bill, which provided for the appropriation of a limited amount of land — [Sir J. GRAHAM: A limited amount of acreage]—to the endowment of churches, and had rested on that ground in some measure his support of the present Bill. Now there was the greatest difference between granting small sums or allowing the appropriation of a limited acreage for the endowment of churches and school-houses, and enabling persons to obtain from those who were influenced by charitable feelings large grants of landed property, which, instead of being available for the commercial interests of the country, would be placed under permanent ecclesiastical control. Were they prepared to afford facilities to ecclesiastical or lay bodies for obtaining, by the means which had been referred to by the Attorney General—by taking advantage of the weakness of a man on his death-bed, whose powers of mind and body were impaired, and who was in those circumstances in which it was most desirable to guard against the improper disposal of property—grants of large tracts of soil, the value of which could only be maintained by perseverance in an improved system of cultivation? On these grounds, although fully appreciating the motives which had induced his noble Friend to bring forward this measure, he felt it his duty to oppose the Bill.
MR. P. BORTHWICKdenied that all the lands in Scotland which were under the dominion of the present law relating to bequests, were in an unimproved condition. There, for instance, was the land adjacent to George Heriot's hospital, near Edinburgh, which every hon. Member who had seen it must admit was in a high state of cultivation. In fact, where such land was turnip sowed, it arose from other causes. He thought every argument that had been advanced, and every speech that had been delivered against and in support of the present Motion, demonstrated the propriety of going into Committee on this Bill. The right hon. Baronet (Sir J. Graham), and the hon. and learned Gentlemen the Attorney and Solicitor Generals, had admitted there were evils which required correction. The faults noticed in the Bill, which were, after all, but trifling, would be remedied in

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Committee; and he would, therefore, vote for going into Committee upon it.
LORD J. MANNERShoped the House would allow him to notice a few of the objections which had been made to his Motion. The case of the Marquess of Westminster, which he had previously mentioned, but did not wish to fatigue the House by fully detailing, had been stated by the Solicitor General not to be a case in point. The hon. and learned Gentleman must have arrived at that conclusion without a perfect knowledge of its nature. He held in his hand the fullest details, which, though he had not the permission of the gentleman who entrusted the documents to him to read at length, he would read an extract from one of them, which would put the House in possession of the facts, and show the hardships which the present law entailed. The late Marquess of Westminster, in September, 1844, conveyed certain trusts for the purpose of building a church, a school, and twelve almshouses in Chelsea, setting forth the site, &c. Early in the following spring the Marquess died, three or four months ofter the execution of the deed. In consequence of the estate of the late Marquess being entailed, the present Marquess, although most desirous to fulfil the wishes of his deceased father, could not do so, according to the present state of the law, unless some Bill were brought into Parliament giving the necessary powers. The writer of the above statement added, that he had been looking forward with the most sanguine expectations to the realizations of the intentions of the deceased nobleman; "but all our hopes will be cut short by the cruel law of mortmain." He (Lord J. Manners) thought, where such cases existed as that, there was need for legislative interference. From a wish not to occupy the attention of the House, he had not mentioned another case; but, challenged as he had been to show the inconveniences of the present law, he hoped the House would allow him shortly to state it. The letter was interesting. The writer said—
"I inherit a small estate from my father—a few acres—a small thing, but mine own. I entertain the same sort of affectionate feeling towards it as the nobleman for the manor which his ancestors have lived in for ages. Every possessor of property must feel anxious about its final disposal. I have no relative except one, who is far advanced in years, and whom, in the course of nature, I must outlive. Under these circumstances, my duty pointed to the poor of the parish in which the property is situated as the nearest heirs. But the law is such that I cannot leave my little patrimony for the benefit of the neighbourhood."
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He thought that was another case showing the hardship of the present law of mortmain. Then the hon. and learned Gentleman had made much of an alleged infraction of the Royal prerogative; but a stroke of the pen in Committee would obviate that objection, as it would most of those of the hon. Baronet the Member for the University of Oxford. The hon. and learned Attorney General had attempted to throw ridicule on the whole Report of the Select Committee on Mortmain, in consequence of their having stated, in the fourth paragraph of the Report, that the 9th of George II., c. 36, was, in fact, the mortmain law now in force. The hon. and learned Gentleman contended that that Act had nothing to do with the law of mortmain; and he (Lord J. Manners) was willing to admit that, strictly speaking, it was not one of the Statutes of mortmain; but surely this error, which was one into which lawyers were constantly falling, did not justify the condemnation of the whole Report. The hon. and learned Gentleman had affirmed the Bill to be subversive of "the public policy of the country." If the hon. and learned Gentleman meant subversive of the policy of the Act of George II., which it proposed to repeal, he of course agreed with the hon. and earned Gentleman; but if he meant that the public policy of England had always been in favour of Government restrictions on charity, then he denied his proposition. Sir Francis Palgrave said, in his examination before the Committee, that from the reign of Elizabeth to that of George the Second, the prevailing feeling of the country, of the Legislature, and of the lawyers in particular, was in favour of piety in its most extensive sense. He feared, after the speeches of the two law officers of the Crown, he could not say such was the feeling of the lawyers of the present day. If the evils which those hon. Gentlemen opposed to the measure seem to anticipate, were to follow the passing of this Bill, how was it that the present law did not guard against them in Scotland, in Ireland, and in our Colonies? Why were our Colonies left without protection? Canada and other places were, if that view be correct, allowed to be overridden by the priesthood; and when he saw his hon. Friend the Member for Newcastle, himself a Scotchman, rise to oppose him, he expected to hear from his hon. Friend a most melancholy account of death-bed solicitations and destitute heirs in Scotland; but then he

619
should have met his hon. Friend by the conclusive evidence of the Lord Advocate of Scotland, who told us there was no abuse of the kind. He most confidently asserted that a case had been made out for going into Committee; and he felt assured, above all, that the present wants of the country were not met by its institutions. He, therefore, with all confidence, asked the House to give the Bill a second reading, for he assured them that he would persevere in his efforts; although he might be defeated this time, yet he would persevere until some great relaxation was made in the present law of mortmain, or he had carried his measure.
The House divided:—Ayes 24; Noes 60: Majority 36.

List of the AYES.

Acland, T. D.

Hope, A.

Archbold, R.

Howard, P. H.

Bentinck, Lord G.

M'Carthy, A.

Borthwick, P.

Milnes, R. M.

Brotherton, J.

O'Connell, M.

Browne, hon. W.

O'Connell, M. J.

Clive, Visct.

O'Connell, J.

Courtenay, Lord

O'Conor Don, The

Dickinson, F. H.

Somerville, Sir W. M.

Duncan, G.

Trelawny, J. S.

Ebrington, Visct.

Fielden, J.

TELLERS.

Glynne, Sir S. R.

Manners, Lord J.

Hanmer, Sir J.

Buller, C.

List of the NOES.

A'Court, Capt.

Hindley, C.

Allix, J. P.

Hodgson, R.

Arkwright, G.

Hume, J.

Baillie, Col.

Hussey, T.

Baring, rt. hon. W. B.

Inglis, Sir R. H.

Beresford, Major

Jermyn, Earl

Bowles, Adm.

Joscelyn, Visct.

Broadley, H.

Kelly, Sir FitzRoy

Bruce, Lord E.

Lawson, A.

Buller, E.

Mahon, Visct.

Buller, Sir J. Y.

Morpeth, Visct.

Cardwell, E.

Newdegate, C. N.

Colquhoun, J. C.

Patten, J. W.

Crawford, W. S.

Peel, J.

Cripps, W.

Protheroe, E.

Dennistoun, J.

Sheppard, T.

D'Eyncourt, rt. hn. C. T.

Sibthorp, Col.

Douglas, Sir C. E.

Spooner, R.

Ellice, rt. hon. E.

Stansfield, W. R. C.

Escott, B.

Stanton, W. H.

Estcourt, T. G. B.

Strutt, E.

Ferrand, W. B.

Sutton, hon. H. M.

Forster, M.

Thesiger, Sir F.

Frewen, C. H.

Thornely, T.

Goulburn, rt. hon. H.

Trench, Sir F. W.

Graham, rt. hon. Sir J.

Walpole, S. H.

Greene, T.

Wawn, J. T.

Grey, rt. hon. Sir G.

Wortley, hon. J. S.

Grogan, E.

Hawes, B.

TELLERS.

Henley, J. W.

Young, J.

Herbert, rt. hon. S.

Baring, H.

Bill put off for six months.

METROPOLITAN BUILDINGS ACT.
SIR J. GRAHAMmoved for leave to bring in a Bill to amend the 7th and 8th of Victoria, c. 84, for regulating the construction and use of buildings in the metropolis and its neighbourhood, by authorizing the appointment of a third referee. The object of this appointment was to prevent the inconvenience arising from a difference of opinion among the referees; for, if there were only two, and they happened to be divided in opinion, there was no possibility of arriving at a decision. This addition to the number of the referees would not increase the expense; because one of the present referees, each of whom received 1,000 l. a year, having declined to act, it was proposed to divide his salary between the one to be appointed in his place and the third referee, giving them 500 l. a year each, and allowing them at the same time to pursue their professional avocations, which they would be disqualified from doing under the present law.
MR. HAWESsaid, that if this Bill were to be passed, he should like to have a distinct understanding that some other measure should be introduced in the course of the present Session of Parliament, for the purpose of removing the multitudinous defects which existed in the Metropolitan Building Act of last year. He did not know a single eminent builder or surveyor who did not say that there was but one remedy for that mischievous Bill, namely, the repeal of it altogether. Every one acquainted with its working said that it was almost impossible to amend it. He had been informed of many of the decisions of the official referees, all of them exhibiting the vexation, annoyance, and expense to which parties had been subjected. One was the case of an individual who wished to alter a pigeon house. A dispute arose between him and the district surveyors, and an appeal was made to the official referees, who gave a solemn decision as to whether the question came within the Act. All those cases which were left to the official referees could only be decided upon the payment of very large fees, and those fees must be paid by the appellants, whether the decision were in their favour or not. For every hearing by one official referee and registrar, the charge was a guinea and a half; and by two official referees and a registrar, two guineas. For every final award, according to the decision of the official referees, the charges ranged from one guinea to twenty-one guineas. [Sir J. GRAHAM: They were

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the fees under the Act.] True, they were under the Act; but it was the Act of which he complained. He was not going to oppose the present Bill of the right hon. Gentleman. On the contrary, he thought it was necessary from the imperfections to be found in the Act. It might be necessary to make what was a bad Act even tolerable; and he should not consider that he had uselessly taken up the time of the House if he succeeded in impressing upon the mind of the right hon. Gentleman, that in every district, and amongst men upon whose authority reliance might be placed, there was but one opinion as to the mischievous effects of the Act. The introduction of this Bill ought to be accompanied by a distinct promise to bring in an amended Bill as soon as possible in the present Session. He believed, however, that the simplest course would be to repeal the Act; and that, by taking up the former Buildings Act, and making a few Amendments, a very good Bill might be constructed out of it. He recommended the Government to consult some of the most eminent surveyors upon the subject. With regard to the board of referees, he should oppose it altogether. It had inflicted great inconvenience upon the public, and he hoped that that part of the Bill would be entirely omitted.
MR. HODGSONalso bore testimony to the dissatisfaction which prevailed. The Act was passed in a considerable hurry, and there was no time given to consider its details. He would impress upon the right hon. Baronet, that, in bringing in any amended Bill, he should take care that its provisions were duly considered; and to do this with advantage, he deemed it to be highly expedient that persons who possessed the necessary information should be consulted. In the parish of St. George, there was the strongest feeling of disapprobation as to the present Act; still he would not go the length of asking the right hon. Baronet to propose the repeal of the law, but to introduce an amended Bill at a period of the Session sufficiently early to enable the House to reconsider the whole matter.
MR. T. D'EYNCOURThad never heard a measure more generally condemned than the Bill of last Session, and there was no doubt that it had occasioned very considerable inconvenience, vexation, and expense.
MR. FORSTERdid not see the necessity of appointing a new referee, if the Bill were to be merely temporary in its duration.
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It appeared that the referees were to be allowed to follow their own private business, than which, as public officers, nothing could be more objectionable on principle. The best remedy was the repeal of the Bill of last Session; but if that course were not adopted, he would strongly advise the right hon. Baronet to consult those who were best acquainted with the subject; and though it would not be right to defer the introduction of a new Bill to a late period of the Session, yet he hoped it would not be prepared in a hurried manner.
MR. HENLEYsaid, that at the time the Bill of last year was before the House, he marvelled very much that Members representing the metropolitan districts suffered it to pass; for no one who attended to the Bill, or rather the parts of the Bill, and the extraordinary alterations that took place in them, could fail to be convinced that the person who framed the Bill had no uniform system in view, and could have little sound information upon the subject. He had always felt confident that the Bill would not work well, and that it would inflict the greatest inconvenience and annoyance upon every body who was so unfortunate as to live within the range of its operation. For his part, he thought the best plan was to repeal the Bill and begin again.
SIR J. GRAHAMwas extremely sorry that the measure which received the sanction of the Legislature last year should have met with such condemnation; but it should be borne in mind, that in endeavouring to amend the old Act, the Government yielded to the wish of the public, and also, he believed, to the wish of that House. The House would remember that at that period he had a great variety of measures to attend to, and that a subdivision of labour was in consequence rendered necessary. The result was, that this particular matter was undertaken by the Commissioners of Woods and Forests; and his noble Friend directed his most earnest attention to the preparation of the measure. To the best of his judgment he brought it forward as an amended and useful Bill. It underwent a great deal of discussion in that House; and the hon. Member for Lambeth (Mr. Hawes), with his usual assiduity, applied himself to that discussion. He advanced many objections to details; and for the purpose of obviating these, his noble Friend qualified the Bill as far as he possibly could, with the hope that it would work well. He was bound

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to say, however, that what he had heard from both sides of the House, and in private, did lead him to the conviction that the measure, as it now stood, was imperfect; and he begged to state, on the part of the Government, that they were preparing a Bill to amend the Act of last Session, and that that Bill was in a very forward state. With respect to the Bill he now asked leave to introduce, unless the operation of the existing law was altogether suspended, that Bill was indispensable. Under the Act of last Session, there were two official referees at a salary of 1,000 l. a year each; but in giving them that salary they were told that they must not follow their own private business. One of them had since resigned in consequence of that condition being attached to the office, and positively refused to discharge the duties longer. If the disqualification to follow their own business were repealed, there would be no difficulty in finding persons fully competent to perform the duties; and, therefore, it was proposed to appoint two official referees at a salary of 500 l. a year each, with liberty to pursue their own profession, in the place of one person at a salary of 1,000 l. a year, with the disqualifying condition attached.
Leave given.
Bill brought in, and read a first time.
House adjourned at a quarter before Six o'clock.