§ Bill, as amended, brought up for consideration.
The SOLICITOR GENERAL
said, he thought it necessary to propose an Amendment in the 60th clause, under these circumstances. The clause provided that the Act should not extend to the Universities of Oxford, Cambridge, London, or Durham, or to any college or hall therein. Now, the London University was peculiarly situated. That institution had the power of sanctioning and increasing within its own compass any place of education in conformity with the principles of the University, and in a manner to merit the approbation of the trustees and governors. If the words remained as they now stood, "any college or hall" might exempt from the operation of the Act any of those educational institutions which receive the sanction of the London University, and are thereby brought within the provisions of the Statute, and constitute a component part of that University. He proposed that the Act should not extend to the Universities of Oxford, Cambridge, the University of Durham, or any college or hall in the said Universities of Oxford and Cambridge.
§ LORD JOHN RUSSELL
said, he had now to propose, in the 60th clause, after the exemptions of cathedral or collegiate churches, to extend the exemption to funds for the exclusive benefit of persons of the Roman Catholic persuasion.
To add to the Amendment in page 23, line 25, alter the words 'religious worship,' the words 'or any funds applicable to the benefit of any persons of the Roman Catholic persuasion, and which shall be under the superintendence and control of persons of that persuasion.'
§ Motion made, and Question proposed, "That those words be there added."
§ SIR FREDERIC THESIGER
said, he viewed with very great regret and alarm the course which had been now adopted with respect to this Bill, because, although the words were few they were pregnant with mighty consequences, and involved a most important principle; and he must entreat the attention of the House to the period at which the noble Lord had thought proper to propose this most formidable Amendment. The Bill was introduced into the House of Lords under the auspices of the Lord Chancellor. It received the most careful consideration of a Committee of that House, consisting of per- 1256 sons pre-eminently qualified to judge of a measure of that description. It had the entire sanction and approbation of the Government, and it came down to the House of Commons substantially in the same form in which it had passed through the Committee of the other House. The second reading of the Bill took place without the slightest intimation that there was any intention on the part of the noble Lord to introduce an Amendment of this description. The noble Lord asked the House to be permitted to take the second reading, and to reserve the discussion until the time when the Bill should be in Committee; and the House acquiesced in that suggestion. The noble Lord only the other day, on going into Committee, intimated his intention of proposing this Amendment, and had it not been for the right hon. Member for Oxfordshire (Mr. Henley), that important alteration might have been carried in a House which, without straining a metaphor, had had the greater part of its lifeblood drawn from it, and was not at this period of the Session in a very active state of existence. The noble Lord stated that his ground for making the alteration was, that the Roman Catholics bad intimated to him the apprehension they entertained that under this Bill some of their trusts might be found to be within the law against superstitious uses, and that these trusts might be liable to forfeiture and penalties; and the noble Lord, therefore, deemed it necessary to frame a provision to guard against these consequences, and he proposed that these trusts should be exempted, promising that he would on a future occasion introduce some law with regard to superstitious uses. Now these apprehensions of the Roman Catholics had been expressed at a very critical period. The Bill had been for a long time in the House of Lords. It was similar to a Bill which had been previously introduced. Its provisions were well known. It was apparent then that the danger apprehended by the Roman Catholics was not a new one; and yet when there was a full attendance of Members the Roman Catholics reserved the expression of their fears, and only brought them forward at this late period, and under the peculiar circumstances which he had mentioned. The noble Lord might have easily allayed these apprehensions, instead of encouraging and adopting them. The noble Lord said, "You are not taken by surprise, because similar exemptions have been introduced into other Bills for 1257 establishing Commissions to inquire into charities." And in support of that statement the noble Lord referred to the exemptions introduced into the Bill of 1835. The noble Lord was perfectly correct, and had rather understated his argument. In every Bill which had been introduced on that subject, there were these and other exemptions, to which he would call the attention of the House, in order to show the force of the argument in favour of the present exemption. He would first take the Act 5 & 6 Will. IV., passed in 1835, which was—not to extend to the Universities, nor to Cathedral or Collegiate churches, nor to any funds belonging to any persons of the Jewish persuasion, or to the people called Quakers, or to persons of the Roman Catholic persuasion, and which shall be under the superintendence and control of persons of such persuasions respectively.The noble Lord said that no claim for exemption had been set up by any member of the Jewish persuasion, or by any of the people called Quakers. Now, what did the noble Lord mean by that observation? Did he mean to say that the Quakers, and persons of the Jewish persuasion, had the same right to exemption as the Roman Catholics? If that was the noble Lord's meaning, did he intend to say that justice was only conceded to those who demanded it? And if he meant to say they had no other right of exemption than members of the Jewish persuasion or Quakers, then he must perceive that his arguments drawn from these exemptions were of no avail; for if they did not apply to other persons introduced into the Act as exempted, they would not apply to the Roman Catholics. But the fact was that the previous Acts were Acts for the institution of preliminary inquiries, and not for purposes of permanent legislation. He wished to remind the noble Lord of the Bills which had been introduced from 1844 downward, for the purpose of establishing a Board for the Administration of chartable trusts. In 1844, 1845, and 1846, Bills were introduced in the House of Lords by Lord Lyndhurst. In 1847, 1848, 1849, and 1850, Bills were introduced under the Government of the noble Lord by the late Lord Cottenham. In 1852 another Bill was introduced by the noble Lord and his Government, which Bill was taken up by Lord Derby's Government, who endeavoured to pass it into a law. Now, he would ask the noble Lord if any of these Bills contained any exemptions respecting Roman Catholic trusts? If these Bills never contemplated such ex- 1258 emptions, surely that was an argument more forcible than any which the noble Lord had drawn from the exemptions in the Acts passed, not for the purposes of legislation, but merely for the establishment of preliminary inquiries. The noble Lord said, his reason for introducing this exemption was, that the Roman Catholics are apprehensive that in consequence of the searching investigations to be instituted by the Commissioner it may appear that certain trusts are illegal, and that they may come within the law against superstitious uses, and be declared void. And one would imagine, from the observations of the noble Lord, that an entirely new law was introduced by this Bill with respect to the Roman Catholics. But the law would not be changed in the slightest degree by this Bill, the object of which was merely to provide for the better administration of existing trusts, and did not change the law respecting them. At present any person might be a relator, and impeach a Roman Catholic trust, and if any such trust should be found to come under the Statute with respect to superstitious uses, it would be the duty of the Lord Chancellor to declare it void. But no information was likely to be filed on any such ground. If the noble Lord should succeed in carrying his Amendment, he would do the most mischievous act towards the Roman Catholics which could possibly be imagined, and he (Sir F. Thesiger) would establish that assertion by an authority to which Roman Catholic Members would be disposed to pay some respect—he alluded to an hon. and learned Gentleman formerly a Member of that House, who, in 1847, proposed to introduce a Bill for the regulation of Roman Catholic trusts. On that occasion the hon. and learned Member said—The trustees of Roman Catholic charities may be guilty of any amount of maladministration without the Roman Catholics, for whose benefit the trust was created, daring to ask relief, because the issue of an application with that object may be a declaration that the charity was ab initio illegal, and continued illegal.Now the noble Lord, by exempting Roman Catholic trusts from the operation of this Bill, would continue that state of things which was considered so prejudicial and mischievous. Now what would be the state of the Roman Catholics supposing this Bill to pass in its original state—including Roman Catholics in its operation? No proceeding could be instituted with respect to any trustees except by permission of the Commissioners, or ex officio by the 1259 Attorney General. Now he would seriously ask hon. Members whether they believed, with the feeling which now existed with regard to these trusts, that the Commissioners would sanction any proceedings to impeach the validity of the trust of the Roman Catholic body, on the ground of its being a violation of the law against superstitious uses; or whether any Attorney General was likely to sanction an ex officio information on any such ground. If it was visionary to think such proceedings would be instituted, did not the noble Lord by this proviso leave the Roman Catholics in the helpless and crippled state which had been described by the hon. and learned Member whose remarks he had quoted; and would he not leave them in such a situation as to prevent them from complaining of any abuses or maladministration on the part of these trustees? The noble Lord appeared to him to be proceeding in a manner contrary to his expressed opinion: like a rower, he appeared to be turning his back on the course he was pursuing. The noble Lord said, "I think the operation of the Bill ought to include Roman Catholic trusts, but what I propose to do is this—I propose at this period of the Session to exempt them altogether, and at some future indefinite time I will bring forward a measure which will bring them within the operation of the Bill, and determine the question with regard to superstitions uses generally." it was very well for the noble Lord to give a pledge of that kind; but what security had the House that the noble Lord would be in a position to be able to fulfil that pledge? The noble Lord was not at the head of the Government. Strictly speaking, he was not a Member of the Government. The opinions of the majority of the Cabinet with regard to the Roman Catholics were perfectly well known. And he would ask how could the House be secure that the Cabinet might not be of opinion that the exemption of Roman Catholic trusts from the operation of the Bill was a part of the natural development of that policy which the Cabinet intended to pursue with regard to the Roman Catholics? What security had the House that the noble Lord would be permitted to introduce a Bill of that kind? And if the noble Lord should be permitted to introduce it, what security was there for his being able to carry it through the House? Why should not Roman Catholics be content with a declaration that if this Bill should 1260 be found to affect their trusts some measure to secure them against danger would be introduced? Now, if be (Sir F. Thesiger) believed that the Bill would prejudice Roman Catholic trusts in an improper manner, he would gladly assist the noble Lord in framing any Bill to protect them against that danger. But he thought a much more reasonable course might be pursued than that proposed by the noble Lord. This Bill was introduced into the House of Lords under the sanction of the Government, and it was never suggested there that any such exemption was necessary. It came down to the House of Commons substantially as it was framed by the House of Lords; and he would ask whether it was fair now at this period of the Session and in the present state of the House, that in such a measure there should be introduced such an important and formidable alteration, and whether the proper course would not be to leave the Bill as it was? Believing, as he did, that it would not be injurious to the Roman Catholics, let them remain as was originally intended, included under its operation; then, as he had previously stated, if there was found any real grievance, or any the slightest danger to their trust, let the noble Lord come forward with a healing measure. To that measure he (Sir F. Thesiger) would give his cordial assistance; and he believed that the general feeling of the House would be in favour of preserving Roman Catholic trusts intact. Under these circumstances, and for these reasons, he should feel it his duty to resist the addition of the words proposed by the noble Lord, and he called upon the House to pass this Motion in its integrity.
§ LORD JOHN RUSSELL
I think, Sir, notwithstanding what the hon. and learned Gentleman has said, that if the House should be of opinion that any class of Her Majesty's subjects would run any great risk of being injured in their property, or in the application of that property to charitable and beneficent purposes by the enactments of this Bill, this House would give a favourable hearing to any apprehensions and complaints upon such a subject. I cannot think that it is sufficient to say, supposing that there is that just ground of apprehension and complaint, that, because there have been Bills introduced for several years which have not contained any exemption of this description, therefore "whatever may be the evil and the injury to you, you have found it out too late; you must submit to the depreciation of your 1261 property; you must submit to any evil consequences that may ensue, because for several years you have not made an appeal upon this subject, when Bills which related to it had been introduced into this House." I cannot conceive the justice of making such an answer. I cannot conceive the House of Commons saying to people, "We admit that you are injured—we admit that you are wronged, and we are about to pass a Bill that may wrong you; but, because you have never appealed before, your appeal now shall be valueless." If that be the case, the real question really is, whether or not this Bill might work an injury to Roman Catholics in respect of their trusts. I must admit that it is in many respects a question of confidence on one side, and of suspicion on the other; but I think I shall be able to show that the suspicion on the part of the Roman Catholics is a justifiable suspicion, and that it ought to be listened to by this House. The point, as it has been stated to me, is this—and I will not deny that it has been stated to me by a Roman Catholic barrister—many of these Roman Catholic charities are void in point of law. The hon. and learned Gentleman (Sir F. Thesiger) says, that I did not mention this subject on the second reading of the Bill. Well, I will tell the House how this matter has proceeded, and what is the fact. When I moved the second reading of the Bill, I was entirely ignorant that any complaint of this kind could be made, and I moved the second reading not expecting that there was any such grievance to be complained of. It was only just before we proposed to go into Committee, that I was informed that these apprehensions were entertained; and as soon as I was so informed, on moving that Mr. Speaker leave the Chair, in order to go into Committee, I stated to the House those apprehensions, and I stated that in the course of the Bill I should propose words exempting Roman Catholic charities from the operation of the Bill. Therefore, I gave to the House the first notice that I could possibly give with respect to this subject, and when in the course of the Committee it was suggested that the House required further time for deliberation, I immediately assented to that further time being given. The hon. and learned Gentleman has taken advantage of some words that I used with respect to Jews and Quakers, whose charities were exempted from the inquiries under the Bills of 1818 and 1835. I mentioned 1262 that there was no complaint on the part of Jews and Quakers; but if there had been a complaint, I should have required, as I do in this instance—first, that they should feel themselves aggrieved, and next, that they should show adequate reasons for exemption; and if they had failed to show that, I should have refused the proposition on their part. I propose it now on the part of the Roman Catholics, not merely because some parties on their behalf complain, but because I think that they have good grounds for their apprehension. I do not know that there is any law by which the charities of Quakers and Jews are in any way rendered illegal; but there are such laws with respect to Roman Catholics. Why, at the very time that that last Act of 1835 was passed, enacting that there should be further inquiries as to charities, and when, after the Roman Catholic Relief Act had passed, Parliament thought it right to exempt Roman Catholic charities from that investigation, there was a decision by a very high authority, the late Lord Cottenham, who was then Master of the Rolls, that a bequest for masses for the dead was a bequest for a superstitions use, and was, therefore, void in law. That was declared to be the law at that time. Now, look how far the operation of that decision may extend, for I do not believe that since 1835 there has been any Act rendering legal those Roman Catholic charities. We have had this very day a question with respect to a large property of 12,000l. a year (the Bedford Charity Estate) which both my hon. and learned Friend the Attorney General and the hon. and learned Gentleman opposite (Sir F. Thesiger) said, was mismanaged under the present state of the administration of that bequest. Now, let us suppose that that 12,000l. a year had been left by a Roman Catholic, and that at the same time there had been a provision in the deed that at certain times in the year there should be masses said for the repose of the soul of the founder of that charity. I take it that the strict construction of the law, though undoubtedly it might be argued in a Court of Equity, would at least render doubtful the whole application of that sum of 12,000l. a year, and a bequest for founding, a useful educational institute, perhaps of the very best kind and under the best regulations, might thus be defeated and set at nought by that provision in the deed for the occasional saying of masses, which would bring it under the law of su- 1263 perstitious uses, I do not wish to expose the Roman Catholics to that danger. But the hon. and learned Gentleman says it is quite sufficient security for the Roman Catholics that they should have the faith that the Attorney General, upon the part of the Crown, will never think of bringing a suit to set aside those Roman Catholic charities on the ground of superstitious uses; and at the same time the hon. and learned Gentleman says, "What security have we that any Member of the present Government will propose to apply this law to Roman Catholic charities in future? Why, if you have no security for that, and if the hon. and learned Gentleman founds a great part of his argument upon the fact that there is no positive security that a Bill will be brought in subjecting Roman Catholic charities to the beneficial provisions of this law, then I say that so likewise the Roman Catholics have no security that the Attorney General—I will not say the hon. and learned Gentleman opposite (Sir F. Thesiger), but such a one as the hon. Member for North Warwickshire (Mr. Newdegate) might be if he were a member of the legal profession—might not think it his bounden duty to proceed against charities which, according to his views, were promoting purposes that were mischievous and superstitious. One would have thought that no security was greater with respect to institutions belonging to Roman Catholics than that contained in the Roman Catholic Relief Act, providing that that Act specially shall not extend to convents or females. There seemed to be there a very sufficient security. There seemed to be a very safe provision enacted by law, and there was also by custom as well as by law an immunity for those private houses where Roman Catholic ladies agree to live together. But that security has not been sufficient, and has not prevented an attempt to investigate and inquire into the mode of life of those ladies who have entered those private houses. I say, then, that there is just reason for the Roman Catholics to suspect what may be done under the provisions of this Act. I said that I proposed to exempt them for the present, because I thought it too late at this period of the Session, especially as this Bill came from the House of Lords, to introduce other provisions upon the subject. But I will read to the House what the provision was that was proposed by the Master of the Rolls when he was a Member of this House, and when, in 1847, he proposed to 1264 regulate Roman Catholic charities. By the second clause of the Bill which that hon. and learned Gentleman introduced, he proposed to enact—That no use, trust, or disposition of real or personal property now limited or made, or hereafter to be limited or made, to or for any charitable purpose for the benefit of Roman Catholics within Great Britain or Ireland, or any other part of Her Majesty's dominions, and in conformity with the doctrine, discipline, canons, laws, and usages of the Church of Rome, shall merely for or by reason of such purpose be, or be deemed to be, superstitious, unlawful, or void.
§ LORD JOHN RUSSELL
I am not aware whether it was discussed or not. The words are evidently very wide, and it is obvious that I could not propose words of that kind without exciting a great deal of discussion. If I proposed, on the other hand, to limit them, the limitation also would require a great deal of discussion, and would provoke contending feelings on the part of Protestants and Roman Catholics. I think every man would agree, and I believe the hon. and learned Gentleman himself will not deny, that these Roman Catholic charities ought not to be set aside merely on account of their coming within the law of superstitious uses. At the same time, I doubt not that there are Roman Catholic charities which, whether justly or not, some hon. Gentlemen opposite would declare to be so mischievous and so opposed to their own views of national policy, that they would never consent, by such a large clause as that, to give them the validity and the force of law. If that be the case—if I cannot, on the one side, relieve the Roman Catholics from the just apprehension that their charities may be rendered null and void by the provisions of this Act, and if I cannot, on the other hand, frame a clause by which those charities may be saved from such consequences—I think it is a case for exempting them for the present from the operation of this measure. The hon. and learned Gentleman says that they will have the same security under the proposed law that they have under the existing law. But it is a very different thing silently to connive at the violation of the law as we do in many respects—both the Government and the law officers of the Crown are continually permitting violations of the law to take place, because an exact observance of it in every respect might occasion such a scene of discord as would make the coun- 1265 try hardly tenable to those who have to live in it—but, as I was saying, it is a very different thing silently to permit the violation of the law, and to have brought before you by inspectors, by persons appointed under this Act, and by Reports laid before both Houses of Parliament, a decided and clear violation of the law. Would it not be the case, then, when such a Report was laid upon the table of this House—when it was shown that certain charities were clearly void in law, and when in the opinion of many they ought to be void in law—that we should be called upon to put the law in force, and that the Attorney General would be accused of a violation of his duty because he had not proceeded in the Court of Chancery to set aside those charities for superstitious uses? These appear to me to be sufficient reasons why for the present we should exempt these charities from the operation of this law. The hon. and learned Gentleman says that there is no security that they would not be for ever exempt. I understand that an hon. and learned Friend of mine, the hon. Member for Newcastle-upon-Tyne (Mr. Blackett), mentioned an intention of proposing that there should be an exemption for a limited time. To that I do not object. If the time is proposed to be limited, and if two years is mentioned as the time during which Roman Catholic charities should not be subjected to this Act, I think that that would give time to the House to consider the question, under what limitations and restrictions, or in what manner, those Roman Catholic charities should be brought within the operation of the law. I believe myself that the greater part of the Roman Catholic body desire that there should be some public Act requiring an examination and supervision of those charities, in order to prevent the abuses which, in Roman Catholic charities as well as in all other charities, are apt to occur; but, for the present, certainly, I cannot think it safe for Roman Catholics to be subjected to the provisions of this Act; and though their claim has been made very lately, it has been made upon the authority of a gentleman of great weight and intelligence. The hon. and learned gentleman who made this representation to me is a Roman Catholic barrister, with whose character the hon. and learned Gentleman opposite is very well acquainted. I need not mention the name of that hon. and learned gentleman; but he is entitled to credit, both from 1266 his knowledge of the law and on account of his high character; and it is his opinion that it is not safe for the Roman Catholics to be included in this law. For these reasons I must defend the proviso which I have moved.
§ MR. NEWDEGATE
said, that the noble Lord seemed to think, if there was any danger to be apprehended to Roman Catholic charities, that he (Mr. Newdegate) was the most likely person to cause it. Now, he thought if any danger were to occur it must, come from the Government, because it was impossible any proceedings could be taken without their sanction. And as it was clear they would not be out of office before next Session, they could give a guarantee that there should be nothing done in derogation of the just claims of the Roman Catholic community, which would afford a valid security; meanwhile they might forego their present intentions as to the positive exemption of Roman Catholic charities from the guardianship of the law against abuse, which they proposed to extend to all other similar property. The proposal of the noble Lord to exempt all roman Catholic charities from the operation of the ordinary law of the country, was to allow them to fall under the absolute control of a foreign Power, which was attempting to enforce its tyrannical authority in this country against the will of the Legislature, the Sovereign, and the people. Evidence had been given before the Mortmain Committee by Roman Catholic priests and laymen, which showed that the only security which Roman Catholics had for their trusts being carried out according to the intention of the donors, and the rights and wishes of the recipients, was the protection extended to them by the law of England. He could not conceive a more inopportune moment for the intended withdrawal of the protection of the law of England from all trust property held by English Roman Catholics, for charitable and religious purposes; it was notorious that Cardinal Wiseman, the temporal as well as spiritual plenipotentiary and representative of the Pope, had been intruded upon this country, contrary to the law of his country and of Europe, and that this foreign agent was using at this moment his plenary powers to grasp for his master, the Pope, and to appropriate according to the decrees of the Roman Propaganda, the whole of the property held in trust by the English Roman Catholics; while a similar process was being carried out by the Car- 1267 dinal's fellow agent, Legate Cullen, in Ireland. He hoped that House would not consent to open the door wider for the Cardinal or the Propaganda to interfere in the affairs of the people of this country. He thought this proposed exemption from the action and protection of English law within England involved a most dangerous principle: as a Protestant he looked on it with the utmost jealousy. So far from wishing to injure Roman Catholic charities, he had come down prepared with a proposal to secure them against any proceedings under the Acts relating to superstitious uses, on account of any facts that might be ascertained by the Commissioners under the Bill pending the proceedings of the Commission, and provided that the trusts were eventually made conformable to the law of England. He hoped the right hon. and learned Gentleman (Sir F. Thesiger) would take the sense of the House on the question.
said, he begged to express the gratification with which he had heard the concluding sentences of the noble Lord's (Lord J. Russell's) speech, for while he thought it would be unjust at once to include Roman Catholic charities within the operation of this Act, he was convinced that it would be extremely undesirable to exempt them for ever from participating in so beneficial a measure. Now that the noble Lord had made this concession, he strongly impressed upon the House the expediency of at once accepting it.
§ MR. BOWYER
said, he willingly joined in the desire which had been professed by the hon. Member for North Warwickshire (Mr. Newdegate) to protect from confiscation the charities of Roman Catholics; but he must say he infinitely preferred the practical remedy proposed by the Government. He asked for that remedy, and he accepted the Amendment, not because he desired exceptional legislation, but because these Roman Catholic charities being already the subject of exceptional legislation, it was necessary that they should be protected in the manner now proposed.
§ SIR FREDERIC THESIGER
said, he could not accept the new Amendment, because it appeared to be a violation of principle, and an admission that a different system of legislation was to be applied to Roman Catholic charities to that which was applied to others.
§ Motion, by leave, withdrawn.
To add to the Amendment in page 23, line
28, after the words 'religious worship,' the words 'nor shall this Act, for the period of two years from the passing thereof, extend or be in any manner applied to Charities or Institutions the funds or income of which are applicable exclusively for the benefit of persons of the Roman Catholic persuasion, and which are under the superintendence or control of persons of that persuasion.'
§ Motion made, and Question put, "That those words be there added."
§ The House divided:—Ayes 87; Noes 76: Majority 11.
§ Other Amendments made; Bill to be read 3o on Monday next.