MORTMAIN BILL. (Hansard, 28 June 1854)

MR. T. GREEN
said, he must appeal to his hon. and learned Friend opposite (Mr. Headlam) whether, in the absence of every Member of the Government, he would persist in going into Committee? The subject before them, as the House was well aware, was no light matter; and it was evident, from the number of petitions presented, that a strong feeling existed in the country against passing the Bill in its present shape. Were they, therefore, to be called on to complete arrangements of the most important character without the sanction of the highest legal authorities of the country being attached to their proceedings? The subject, he would allow, had been referred to a Select Committee, before which it had undergone considerable investigation; but the Bill introduced by the hon. and learned Gentleman (Mr. Headlam) had not been drawn in conformity with the recommendations of that Committee, and it was therefore absolutely essential that the House should have the assurance of the law officers of the Crown that these proceedings should not terminate in inconvenience or difficulty. He must say he was exceedingly surprised that the Bill had been introduced in its present shape, for it went to affect various charitable and benevolent institutions throughout the country, against which no charges had been made either of having used undue influence to obtain funds, or of having improperly administered those funds afterwards. If the Bill were passed in its present shape, he had no doubt that it would materially interfere with the working of several of those charities. He would, therefore, urgently press the postponement of the committal of the Bill, to some future day when the law officers of the Crown could be present.

MR. HEADLAM
said, he thought the request of the hon. Member for Lancaster somewhat unreasonable, and he would remind the House that the Bill had been in- 802 troduced by him as Chairman of the Select Committee which had sat during two Sessions to consider this subject. He would also state in opposition to what fell from the hon. Member for Lancaster, that there was not a single clause in the Bill inconsistent with the finding of the Committee. It was true, indeed, that there was one point which had been left unnoticed in the recommendations of the Committee; but as it was absolutely incumbent upon any one dealing with the question at all to touch upon it, the Bill was made to include its consideration. Now in reference to deferring the further progress of the Bill to a future day, he begged to recall to the recollection of the House that he had introduced it at the earliest possible period of the Session, and that he had not done so until the Government declined acting in the matter, on which occasion he made a full and complete statement of the various provisions of the Bill. It ought also to be remembered that the Bill did not come before the attention of the House in any way by surprise, for a considerable interval elapsed between the period when the Bill was introduced and its second reading—a period of two months. It was then passed with perfect unanimity, for not a single Member made any objections to it. Since that another period of two months had passed, and now, at the close of the Session, when the Bill came to be committed, there was not a single Member of the Government present to inform the country as to their opinions on the measure, though he ventured to state that no measure brought forward that Session contained a provision of greater consequence than that embodied in the 13th clause of this Bill. He quite agreed with the hon. Gentleman (Air. T. Greene) that the subject was one which ought to be fully and fairly considered; bat if her Majesty's Ministers did not choose to attend on an occasion of such importance he could not help it, as their movements were not within his control; and he therefore could not feel precluded by that circumstance from proceeding with the Bill. Wednesday was the only day in the week when private Members were afforded au opportunity of proceeding with their Bills, and he had, therefore, in order to ensure time bringing on the discussion, placed the Bill first on the notice paper for to-day. There was no doubt, therefore, that the Members of the Government had due notice that the question would be brought forward; and under these circumstances, 803 he would leave it to the House to decide whether the Bill should be then committed or not.

§ MR. GOULBURN
said, he would freely acknowledge that the hon. and learned Gentleman was in no way to blame for his part in the transaction; his course had been quite clear and distinct. The observations, however, just fallen from the hon. and learned Gentleman had not recommended the Bill to the favourable consideration of the House, for he told them that, having applied to the Attorney and Solicitor Generals, both of the late and present Administration—[Mr. HEADLAM: No, no!]—they had declined to move in the matter. Now that furnished primâ facie evidence that the Gentleman most conversant with law held great objections to dealing with the question as the hon. and learned Gentleman proposed. On that account he thought it was only right that the law officers of the Crown, whose place it was to protect the public in matters involving great legal changes, should have an opportunity of stating to the House the views taken by them of the Bill as a whole. He confessed he did not feel, in his individual position, sufficiently instructed as to the bearing of the Bill upon the Law of Mortmain to give an opinion with respect to it, independently of the judgment to be formed from the hearing the opinions of those most competent to deal with the question. He would therefore join in requesting the hon. and learned Gentleman to postpone the further progress of the Bill until the law officers of the Crown should be present.

§ MR. HADFIELD
said, he thought the House had abundant reasons to complain of the conduct of the Government in absenting themselves altogether on such an occasion, and of the difficulties thrown in the way of private Members carrying Bills through the House. He hoped the hon. and learned Gentleman would press the Bill into Committee, for it was a measure tending to remove the impediments thrown in the way of benevolent persons conferring services on the community at large, which at present were very great indeed, The hon. and learned Gentleman who had introduced the Bill was animated by the best intentions, and deserved the thanks of the country for the labour which he had bestowed upon the subject. The only difficulty which he (Mr. Hadfield) anticipated was in the restriction put upon charitable institutions, and he 804 thought that point could be fully dealt with in Committee.

§ MR. WALPOLE
said, he thought Ids hon. and learned Friend (Mr. Headlam) had been very badly treated; but the persons by whom he had been badly treated were Her Majesty's Government. Here was a very important measure, affecting great and various interests throughout the country, and yet there was not one single Member of the Government upon the Treasury Bench; and he must, on the consideration of such a measure as the present Bill, also complain of the absence of the law officers of the Crown, who were bound to watch over such measures, and to advise the House in reference to them before they passed into law. Such he felt to be the position of his hon. and learned Friend. At the same time, while he had no wish to see the further consideration of his Bill postponed—for he (Mr. Walpole) was one of those who thought that the Mortmain Laws required material alteration—he confessed, on the other hand, that in the,, absence of the law officers of the Crown, to adopt a Bill which he would venture to state combined more important and questionable changes in the law than anything which had been brought forward in reference to the subject for a long time, would be a course by no means justifiable. He thought, therefore, under these circumstances the best course for the House to take would be to postpone the Bill until some Members of the Government could come down to the House; for he was perfectly sure that they would be unable to arrive at a satisfactory conclusion unless they were in possession of the best evidence open to them as to the probable bearing of the Bill. What he ventured to suggest, therefore, was, that the consideration of the Bill be postponed until after the fourth Order of the Day, by which time, possibly, some Members of the Administration would be in their places.

§ MR. MASSEY
said, he must allow that the condition of the Treasury Bench at that moment was exceedingly discouraging to private members, but it struck him, however, that, if they were to withdraw the Bill on that account, they would be adopting a course very grateful to the Government, who would thereby in future be induced to abstain from coming down to the House whenever they wished to defeat a measure that was unpalatable to them. He must say, if the right hon. Gentleman the Member for the University of Cambridge (Mr. 805 Goulburn) was not sufficiently instructed in reference to the Bill, that it was his own fault, for a considerable time had now elapsed since a bulky blue book had been published, containing the fullest information on the subject, and the opinions of most eminent men, such as Mr. Pemberton Leigh and others; and therefore that objection did not present sufficient grounds for postponing the further consideration of the measure. He understood, also, that the right hon. Gentleman was wrong in supposing that the late Government had objected to taking up the subject. However, whether they assented to the present measure, all were agreed that the subject was one demanding the most serious attention and consideration of the Government. But he mainly rose in order to prevent the House from adopting a line very perilous to the independence of the House of Commons.

§ MR. BOUVERIE
said, he considered that it was unworthy of the dignity of the House to admit that they were incapable of proceeding with business because certain Members did not happen to be present. However desirable it might be to have the assistance of the law officers of the Crown in considering Bibs of this kind, yet there were Members present—for instance, his right hon. Friend opposite (Mr. Walpole)—quite as capable of forming an accurate judgment and advising the House with respect to the Bill as the law officers of the Crown. He would suggest, therefore, to the hon. and learned Member for Newcastle (Mr. Headlam) to go into Committee on the Bill, postponing, however, the consideration of those peculiar clauses that were chiefly objected to until the decision of the law officers of the Crown could be had. For to adopt the proposal of his right hon. Friend the Member for Midhurst (Mr. Walpole) would be to establish a very objectionable precedent.

§ MR. SPOONER
said, he must beg to call the attention of the House to what took place when it was proposed to go into Committee on this Bill at ft morning sitting. It was then objected that in such a case the House would be precluded from having the assistance of the law officers of the Crown; but the noble Lord the President of the Council (Lord John Russell) immediately rose and said that their attendance would be certainly secured on the occasion, because the Criminal Procedure Bill was named for the same day, at the discussion of which Bill the law officers of the Crown 806 would be obliged to attend, and therefore on that assurance of the noble Lord the consideration of the Bill was fixed for this day. Now, he could not agree with the hon. Gentleman who had just addressed the House (Mr. Bouverie) in thinking that it would be derogatory to the character of the House to suspend the proposition for the committal of the Bill, because of the absence of the law officers of the Crown; for he thought it incumbent on them to know what course the Government meant to pursue with respect to the Bill, whether they meant to sanction or reject it. He thought it would expedite the ultimate progress of the Bill to wait until the law officers could be present. He therefore proposed that the Committee be postponed until after the sixth Order of the Day had been disposed of.

§ MR. ATHERTON
said, that, on the contrary, he hoped the House would consent to go into Committee at once. The subject had been already well considered, and the Bill was the embodiment of the recommendations of a Select Committee. So far, therefore, it could not be said that the measure was not brought forward without great preparation. Besides, it was very well known that the only portions of the Bill which had challenged objection were the 13th and 16th clauses. These clauses related to a proposed change in the law with respect to the disposition by testators of personal property; for up to this time the bequest of personalty to religious and charitable purposes had been altogether unfettered, while bequests of land had been fettered for centuries. Well, his hon. and learned Friend (Mr. Headlam) proposed in the Bill to apply fetters to the bequests of personalty for religious and charitable purposes; and upon that point there was a great diversity of opinion. That, therefore, was the most important point of the Bill; and he wanted to know what assistance they would derive in settling, that question from the presence of the Attorney and Solicitor Generals in the House? The question was not a technical one—it was one of policy, and could be easily settled in the absence of lawyers altogether.

§ MR. MOWBRAY
said, that with a view of administering a very proper reproof to Her Majesty's Government for not being present on such an occasion, he would move that the consideration of the Mortmain Bill be postponed until after the fourth Order of the Day had been disposed of.

§ MR. PACKE
seconded the Amendment.
Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will resolve itself into the said Committee after the fourth Order of the Day has been disposed of," instead thereof.

§ MR. FRESHFIELD
said, he thought it was unfortunate that the Bill should have been fixed for a day on which the sessions were meeting all over the country for the local administration of justice, since the House was thereby deprived of the presence of a body of Gentlemen peculiarly qualified to assist in the consideration of this measure.

MR. H. BERKELEY
said, he should support the postponement of the Bill, which, in his opinion, contained the most startling propositions. The 13th clause actually rendered it impossible for any person to bequeath money to charities upon his deathbed. He spoke very strongly on the subject, representing as he did a city which had benefited most extensively from its local charities. The Bill went to this, that every man must live a month after he had made his will.

MR. HEADLAM
said, he was willing to postpone the consideration of the 13th and 16th clauses if the House consented to go into Committee. It was a mistake to imagine that the Bill placed any restriction upon the exercise of benevolence; on the contrary, it very much relaxed existing regulations.

MR. HEADLAM
moved, that Mr. Speaker do leave the Chair.

§ MR. MOWBRAY
said, that when they divided upon this Bill five minutes ago, it was evidently the intention of the House to postpone the consideration of the measure for a longer time, with a view of giving an opportunity to the law officers of the Crown to be present at the discussion. He believed that several hon. Gentlemen who wished to take part in the 808 discussion had now left the House. He therefore put it to the hon. and learned Member (Hr. Headlam) whether lie could not carry out his object as effectually by postponing the measure until the other Orders of the Day were disposed of. As it was the intention of the law officers of the Crown to be present during the consideration of the Criminal Procedure Bill, he would suggest that this measure be postponed until the Criminal Procedure Bill be disposed of. He should move, therefore, an Amendment, that the consideration of this Bill be postponed until after the other Orders of the Day.

§ MR. ROBERT PALMER
said, he believed it was understood that the Criminal Procedure Bill would be postponed until that clay week.

§ MR. HINDLEY
said, that if the hon. and learned Gentleman (Mr. Headlam) would consent to abandon the 13th and 16th clauses of the Bill, he would have no objection to his proceeding with his measure.

§ MR. BOUVERIE
said, he thought it would be derogatory to the character of the House to come to a Resolution, that a Bill introduced by an independent Member should not be proceeded with because the law officers of the Crown were not present. He considered that it was the most ill-advised course that had ever been proposed to that House.

§ MR. BOWYER
said, he saw no reason for postponement in the absence of the law officers of the Crown, but he did not think that this Bill could be properly considered during the present Session.

§ MR. GOULBURN
said, that though he had voted in the division for the postponement of this measure until after the fourth Order of the Day, he thought that the House would not be acting fairly towards the hon. Members who took a great interest in the Bill, to insist upon its further postponement. He therefore hoped that the House would go into Committee upon the Bill, and although it would be a most inconvenient course to have a general discussion upon a future stage of the measure, yet he thought it would be better 809 that such a discussion should then take place, when the law officers of the Crown were present, than that the progress of this measure should be further delayed.

§ MR. MOWBRAY
said, as he understood that the hon. and learned Member for Newcastle would consent to postpone the 13th and 16th clauses (being the objectionable ones) until some other occasion, he would withdraw his Amendment.

MR. HEADLAM
said, he had no objection to postpone the two Clauses referred to until some of the Members of the Government were present. If, however, the noble Lord the President of the Council and the noble Lord at the head of the Home Department appeared in their places before they had arrived at those clauses, he hoped that the House would have no objection to consider them.

§ MR. MULLINGS
proposed to insert words to limit the portion of laud to be thus assigned to two acres.

§ MR. PHINN
said, he would suggest that five acres should be the limitation fixed.

§ MR. G. BUTT
said, he thought five acres would be too large a maximum for the purposes contemplated by the Act. Perhaps a limitation to three acres would be better.

§ MR. NAPIER
said, he could not see how so much as five acres could be required for the site of a church.

§ MR. GRANVILLE VERNON
said, he understood the object of the limitation to be to prevent estates passing out of the hands of private persons and being improperly applied. He hoped the Committee would not stop at two or five acres, but, if there was to be any limitation at all, it should not be within ten acres.

§ MR. ATHERTON
said, the limitation would apply to laud for the site of "any church, chapel, churchyard, or parsonage-house." What might be an excess for one of these purposes might be too small for another, and he apprehended that if a limit were fixed, it would be competent for a testator to apply the maximum quantity to any of the purposes mentioned.

§ MR. BOWYER.
said, he thought many hon. Members were labouring under a mis- 810 apprehension of the policy which dictated the old mortmain laws. Those laws were enacted for the purpose of enabling the executive Government to put some cheek upon the quantity of land held in mortmain, and he could not see how any policy could be involved in the question, whether ten, twenty, or even fifty acres should be given. He would suggest the propriety of postponing the consideration of this clause in order to enable the hon. and learned Member for Newcastle to remodel it.

MR. HEADLAM
said, he had no objection to the insertion of these words, "provided always that such land or such portion thereof devised, assigned, or bequeathed shall not exceed five acres."

§ MR. MALINS
said, lie was not desirous of taking any captious objection to the clause, but, considering the enormous extent of land held upon a life tenure, care should be taken that the object which hon. Members had in view should not be abused. An acre of land in a large town was of very great value, though in a country place it was not worth consideration; and it would be most improper to allow a person, having a life interest to alienate any large and substantial portion of the land of which he was possessed.

MR. PETO
said, that acreage had erroneously been taken to indicate the value of land. This was not the fact, however, and he might mention that Government had given a sum of 140,000l. for five acres of land. He thought it could hardly be the intention of the House to give power to a life tenant to alienate in perpetuity that which was of so much value.

MR. HEADLAM
said, the Bill gave no power whatever to any person to alienate anything more than property to which he was entitled, and he saw no reason why five acres should not be fixed as a limitation.

§ MR. GOULBURN
said, he thought it would be well to understand what were the real provisions of the law at present. They did not enable a person to convey or assign more than the legal interests which he had in the land, but it was proposed to violate that principle so far as to allow a limited amount to be placed in the hands of a particular body for a particular purpose. As the Bill stood, he saw no reason why, when land was given for the purposes of a museum or botanic gardens, the corporation to whom it was conveyed might not dispose of it for some entirely different object.

§ MR. MAGUIRE
said, he considered it would be better not to include the word "churchyard" in the clause. In many instances a burial-ground extended to 50 and 100 acres, and he thought a limitation to five acres would be much too small.

§ MR. HINDLEY
moved, that the purposes for which land should be conveyed and assigned should be extended "to hospitals, lunatic asylums, or other buildings for the cure of diseases."

§ MR. ATHERTON
moved, that the deed of assignment be delivered to the Charity Commissioners within "three months" after its execution, instead of "one month," as proposed by the Bill.

§ MR. ATHERTON
next moved to leave out the word "three," and insert the word "twelve." He wished that twelve months instead of three should be allowed for the delivery to the Charity Commissioners of a copy of the devise.

MR. HEADLAM
said, he thought it undesirable to make the period so much as twelve months, and he would, therefore, suggest six months.
The word "six" ordered to be inserted.

LORD SEYMOUR
said, he thought the property ought to revert to the testator or his heirs, if from any circumstances it was not applied to the purposes intended.

MR. HEADLAM
said, the fifth section contained a provision on this subject.

§ MR. BOWYER
said, it was now proposed that land should be given not exceeding five acres. But had there been any abuse of the power, or had land been conveyed to such an extent as to be prejudicial to the interests of society? He thought there ought to be no limitation, and that, as there was no abuse, there need be no legislation on the subject.
[After a short conversation, it was agreed to limit the extent of land to be given as a site to two acres, except in the case of burial-grounds, which should not exceed five acres.]

MR. PETO
said, that some precautions should be taken to prevent persons who might not be upon good terms with their heirs from doing that which should prejudice their interests. Thus a man might give a site for a burial-ground under his drawing-room window. The Act ought to 812 give a power of appeal upon the question whether the land given were suitable for the object designed, and he proposed in line 23 to add the words "or shall be unsuitable for the said purpose."

§ MR. MULLINGS
said, he wished that the Court of Chancery could be got rid of in relation to the Bill.

MR. HEADLAM
said, he did not see what other tribunal could be intrusted with the jurisdiction. There were insuperable objections to giving it to the Charity Commissioners.

§ MR. DEEDES
said, he thought that the Committee having already strictly limited the quantity of land to be bequeathed for these purposes by the previous clauses, no further restrictions should be imposed. He would recommend that the Court of Chancery should not be intrusted with the determination of questions respecting sites, as was proposed by this clause. Indeed, he thought this clause ought to be altogether omitted.

LORD SEYMOUR
said, he hoped, if this clause were struck out, that the hon. and learned Member (Mr. Headlam) would copy into this Bill a clause which was inserted in another Bill of his for the promotion of literature. The clause to which he referred would provide that any land so given, or any part thereof, on ceasing to be used for the purpose for which it was given, should then revert to, and become part of, the original estate or manor, the same as if no such grant or gift had ever been made. Such a provision would be more satisfactory than the clause now under discussion.

MR. HEADLAM
said, he saw no objection to the adoption of this clause. After the limitation that had been agreed to, the whole of the clause might be left out except the last four lines.

§ MR. BOWYER,
said, he did not see any use for this clause at all; it would be the means of involving charitable institutions in Chancery suits and litigation in order to take away some small portion of land left to them, and might lead to the ruin of some institutions by rendering them liable at any time to be drawn into a Chancery suit.

MR. HEADLAM
said, he wished to add a proviso to the clause, to the effect that, upon any land so conveyed, assigned, devised, or bequeathed, or any portion of such land, ceasing to be used for the purposes for which it was originally given, the same 813 should immediately revert to the person who would have been entitled to it had no such grant been made.

§ MR. SERJEANT SHEE
said, it appeared to him such a proviso was objectionable, inasmuch as it would cause great inconvenience to charitable institutions. When a charity was first instituted it might be impossible for it to erect buildings to so large an extent as it would when the objects of the charity became more numerous. If there was an alteration of this nature introduced into the clause, he certainly thought there ought to be some limitation as to time—say, if such land ceased to be used for twenty or thirty years after the bequest.

§ MR. MASSEY
said, it was his opinion that the clause was superfluous, and ought to be omitted.

§ VISCOUNT PALMERSTON
said, he did not know whether the alteration would accomplish its purpose. The words proposed to be added would apply only on land ceasing to be appropriated to the purposes originally intended. In the earlier Fart of the discussion some hon. Member observed, with regard to the limitation of extent to two acres, that in the centre of a town that might be more than was necessary, whereas, in other instances it would not. Now, the clause of his hon. and learned Friend provided a remedy in that case, for if the Court of Chancery found it was too much, it gave power to the person to whom, but for the grant, it would have belonged, to recover it, whereas, if the addition were made, the reversion could only take place on the land ceasing to be appropriated to the purpose intended. It seemed to him that would not meet the case, but that the clause as it stood might be made to accomplish the purpose in view by adding a few words to the effect that when such land or any portion of it should cease to be applied to the purposes for which it was so conveyed, it should be restored to the heirs of the grantor.

§ MR. G. BUTT
said, he considered that to leave the matter to the Court of Chancery would only be to introduce an enormous evil; it would multiply suits and give rise to all kinds of expense, and, with regard to the words to be added, there were strong objections to them. His hon. and learned Friend (Mr. Headlam) proposed that if the land ceased to be used for the purpose originally intended, it should revert to the grantor, his heir, or executors. Now, what was the meaning of the words 814 "ceased to be used?" In all eases where land was dedicated to a particular purpose there was a provision that if within a certain period—a reasonable fixed time, often, in case of railways, five years—it was not used for that purpose, but abandoned, then it should revert to the original owner. That was intelligible, but it was a very different thing from enacting that land should revert on ceasing to be used for its original purpose. He thought, however, that the clause, either in one form or the other, ought to pass.

§ VISCOUNT PALMERSTON
said, suppose an acre or two acres should be granted under the Bill for an infirmary or school in the middle of a town which afterwards, by lapse of time, should decay, was it right that land which, from d its situation, might be of great and increasing value, should be let on building leases by the parties to whom it was conveyed for totally different purposes? Surely, it was more just and proper that in such a case it should revert to the person who, unless the grant had been made, would have been entitled to it.

§ MR. BOWYER
said, he considered the suggestion made by his hon. and learned Friend (Mr. Serjeant Shee) a good one, but that it did not altogether meet the difficulty. There could be no doubt in such a case as that put by the noble Lord the Member fur Tiverton (Viscount Palmerston), but how could they decide where the question was as to whether part of such land had ceased to be used? That would be most difficult to determine, and persons would be able to harass a new institution by constantly carrying it into the Court of Chancery, in respect to scraps of land which it would be alleged had ceased to be used.

§ MR. SERJEANT SHEE
said, he admitted that what had fallen from the noble Lord (Viscount Palmerston) had great weight, and that it would be an act of injustice to the family of a person who had left property to a charitable institution if the trustees were allowed to derive an advantage from such property after it had been diverted from its original use. He thought, however, this clause might be effectually reformed by adding a limitation of twenty years from the date of the devise before the land should so revert to the heirs, which would give time to ascertain whether the institution was really beneficial to the public and what land it required. Something had been said of the great 815 danger of referring a question of this kind to the Court of Chancery, but he thought hon. Gentlemen on that side of the House were a little mistaken. The proceedings in that Court were much less expensive than they were two three years ago, and in his opinion no tribunal would be so good for a court of reference for this purpose as the Court of Chancery.

LORD SEYMOUR
said, all he wished to secure was, that, where property was left for public purposes, it should be kept for such purposes alone, and that the trustees should be aware that if it were not so kept it would revert to the heir. With regard to railroads, it was quite right the land abandoned should revert to the original owner; but suppose ground was left for purposes of science or the fine arts, if the limitation proposed by the hon. and learned Serjeant were adopted, land might be applied to the original purpose for twenty years, and then applied to another purpose. Such an Amendment would, in his opinion, have a bad effect.

§ MR. BOWYER
said, if it was evident it was so misapplied, the law already gave a remedy on an application to the Court of Chancery, or by a suit instituted by the Attorney General; therefore it was unnecessary to provide a new one in this Bill.
Amendment agreed to.

MR. HEADLAM
said, the clause was now reduced to the very simple and moderate proposition, that when persons gave a small portion of land, to the extent of two acres, for a purpose which everybody admitted to be good, if the land was not used for that purpose, the persons to whom it was conveyed should not get the benefit of it, and it should revert to the original grantor or his heirs.

§ MR. W. R. FITZGERALD
said, the noble Lord the Member for Tiverton had given an illustration of a case in which an institution might be situated in the centre of a town, but he did not see how the clause was to apply where a person left his whole estate to a perfect stranger except two acres devoted to a charitable institution. He thought its adoption would create great difficulties.

§ MR. GOULBURN
said, it was his wish to have a legal opinion respecting the effect of the clause, which, in his opinion, would virtually repeal the mortmain law, so far as regarded land that was given for charitable purposes. He did not see how the clause could be justified, and must again express his desire to have a legal opinion respecting the policy of making an enactment by which a large portion of land could be placed in mortmain without any check whatever.

MR. HEADLAM
said, that the clause would not afford the slightest facility to give or devise land for charitable purposes.

§ MR. GOULBURN
said, his objection had reference to the sale of lands.

MR. HEADLAM
said, he must beg to explain that the clause had reference to a case where it should become necessary for a charity to buy a piece of land, and the provisions of the Mortmain Act were not applicable to a case of that description. Suppose a gentleman should sell for its whole value a piece of land to a charity, there was no necessity that the transaction should be dependent upon his living one year after the sale. He begged to call attention in support of his views to the Report of the Committee, page 12, in which it was stated— That where money already devoted to charity is laid out on land, it clearly differs from a voluntary gift, and the reasons that render restriction necessary in that case do not apply to the other. The Committee was perfectly unanimous upon the necessity of this clause; and Mr. Bunting, an eminent solicitor in Manchester, had stated in his evidence that the regulations of the present law were most grievous and absurd, for he could, from his own experience, enumerate in five minutes property to the amount of 200,000l. or 300,000l., the title to which, in consequence of those regulations, was bad except so far as it had been cured by Statute. Nor was the evil effect of the present law limited to sales; because even a lease with reservation of rack-rent was void unless the lessor lived for twelve months afterwards. The clause was strictly founded on the recommendations of the Commissioners.

§ MR. GOULBURN
said, the hon. and learned Gentleman had not adverted to one great object of the existing law, which was, as much as possible, to prevent corporations acquiring landed property. Now, it was certain that the Mortmain Act did 817 render sales to corporations less frequent than they would otherwise be, and that the present clause, by removing existing restrictions, would render such transactions more frequent than they now were.

§ MR.ATHERTON
said, he thought the right hon. Gentleman (Mr. Goulburn) entertained a somewhat exaggerated idea of the change proposed to be effected by this clause. Under the Mortmain Law at present existing a material distinction was made between the disposition of land in perpetuity by way of gift and the disposition of land in perpetuity by way of sale on ample consideration. The second section of the 9 Geo. II. c. 36, which regulated the law of mortmain, provided that the restrictions contained in the first section should not extend to any purchase of an estate or interest in land, or to any transfer of stock, made really and bonâ fide for a full and valuable consideration actually paid, without fraud or collusion. Under the existing law, the instrument by which such conveyance or transfer was made must be enrolled in the Court of Chancery, but this clause provided that a copy of the conveyance or assignment should be delivered to the Charity Commissioners.

MR. TATTON EGERTON
said, he conceived that the clause would enable charitable corporations, by converting money into land, to defeat directly the objects of the Mortmain Law. He objected to the clause on the ground that it would allow land to be locked up under conveyance to any corporation, whether for charitable or other uses, for ever.

MR. HEADLAM
said, that a proviso at the end of the clause would prevent charitable trustees expending in the purchase of lands any funds which they could not now devote to that purpose. The present law did not prevent estates being conveyed to charities, but merely rendered the validity of the conveyance dependent upon the person conveying living for twelve months after its execution.

§ MR. MULLINGS
said, that the only effect of the clause would he to enable the consideration for a sale of laud to a charity to be reserved as a rent charge. He had brought in a Bill three years ago to make what he considered a salutary change in the law; but, after giving attendance every night till the end of July, he was compelled to give it up, and the hon. and learned Gentleman who promoted this Bill was its great opponent.

MR. MALTNS
said, the object of the existing Mortmain Acts was to limit the quantity of land held by corporations, and so tied up from alienation. Now, unquestionably the effect of this clause would be to remove the existing restrictions upon conveyances of land to corporations. For although, if this Bill passed, a person would still be unable immediately to devote a landed estate to charitable purposes, yet a person having money might then purchase such estate in the name of a charity, and obtain an immediate conveyance to it; so that in that way there would be a mode which did not now exist of obtaining an immediate conveyance of landed estate to a charity.

§ MR. HADFIELD
moved to insert in line 37 the words, "except in the case of lands conveyed for any term not exceeding twenty-one years."

MR. HEADLAM
said, that he would agree to make the term seven years in' stead of twenty-one, as suggested by the hon. Member.

§ MR. WALPOLE
said, he begged to ask the hon. and learned Gentleman the Solicitor General what in his view would be the effect of this clause upon the present law of mortmain?

The SOLICITOR GENERAL
said, that since he entered the House, he had vainly attempted to discover the position in which the Committee stood in relation to this clause. To one object of the clause, if he correctly understood it, he should be quite willing to accede. It appeared that the 9th Geo. II. only extended to sales for money paid down, and did not extend to grants made on a reservation of rent that might be equivalent to money value. Now, he certainly thought it would be well to give the same powers of sale to charities on reservation of rent that now existed when the money value of the land was paid down. The clause, however, seemed to be so worded that it might, in one respect, have an injurious and restrictive operation upon the present law; while in another, it might open the door to a very complete evasion of the law as it now stood. It appeared to impose inconvenient restrictions upon transactions which came within the licence of the present law, while, by a kind of complication in its language, it might enable a man to purchase and direct a conveyance of land to charitable trusts, which would be a transaction not allowed by the present law. He would, therefore, suggest 819 to his hon. and learned Friend, that it would be better to postpone the clause until it had been reprinted in the form in which it now stood; for without that, it was impossible to forte a definite opinion of what would be its effect after the alterations which it had received at the suggestion of hon. Members.

MR. HEADLAM
said, he would have readily acceded to the request of the hon. and learned Solicitor General, had he stated any definite objection to the clause, instead of merely throwing out vague insinuations as to what might be its effect. The hon. and learned Gentleman said, that he could not judge of its effect after the alterations it had undergone; but the fact was, that the alterations that had been introduced into the clause were of the very slightest character, and might be readily understood. Of course, if the Government opposed the clause, he could not hope to succeed in carrying it; but he thought he had a right to complain of the way in which private Members who brought forward important measures were treated by the Government. No Members of the Government were present during the discussion, and then towards its close the hon. and learned Gentleman the Solicitor General came clown, and without offering the slightest suggestion, or even intimating definite objections, threw out vague insinuations which it was utterly impossible to deal with.

THE SOLICITOR GENERAL
said, that he had stated two very distinct objections, and he certainly thought it was not much to ask, that the clause should be postponed until they had an opportunity of considering it in its amended form.

§ MR. MALINS
said, that the observations of the hon. and learned Solicitor General had confirmed the objections which he had previously taken to this clause. As to the complaint that the hon. and learned Gentleman the Solicitor General had not attended earlier, this quite confirmed the soundness of the argument which had been insisted upon, that measures of this important, and, at the same time, very intricate character, should not be brought forward in morning sittings, when it was almost impracticable for the law officers of the Crown to be in attendance, to say nothing of the other legal Members of the House.

§ VISCOUNT PALMERSTON
said, in order to see what his hon. and learned Friend (Mr. Headlam) was about to do, it was 820 necessary to consider the provisions of the present law which his hon. and learned Friend proposed to repeal. By the 9th Geo. II., any man might sell any quantity of land to a charitable institution on receiving the full value for it in money, and enrolling the conveyance in Chancery within a certain time. Now the first object of his hon. and learned Friend's clause was, to allow a man to sell on a reservation of an annual rent-charge, as well as for a sum of money down, which was not admissible under the existing law. The reason he proposed this alteration was, that in certain parts of the country transfers of sites for buildings did not take place on payment of the full value down; and charitable institutions were in consequence unable to obtain such sites, except on a reserved rent. The effect of this was, that the titles of a great part of the property which had been transferred to charitable institutions in Lancashire and the north of England were liable to be impeached, because the conveyance had not been made on what, under the existing law, was a great consideration. The object of his hon. and learned Friend was then to confirm the titles to land granted on a reserved rent, both for the past and the future. Now, the objection which his hon. and learned Friend the Solicitor General took to the clause was, that it did not provide that the transfer should be made direct to the charitable institution, but that it left an opening for an intermediate transaction of an objectionable character. He should think that his hon. and learned Friend (Mr. Headlam) might frame the clause so that, while removing defects in the existing law, it should not be liable to new objections. He would suggest to him that it would be desirable to postpone the clause, in order that this point might receive consideration.

MR. HEADLAM
said, that he now understood the objection of the hon. and learned Solicitor General, which he did not before. The language of the clause, however, he conceived was so explicit as not to leave an opening for any such intermediate transactions as the hon. and learned Gentleman seemed to apprehend.

§ MR. SERJEANT SHEE
said, he thought the clause would enable charitable purposes to be carried into effect without producing any of the inconveniences which the Act of Geo. II. was passed to prevent.

THE SOLICITOR GENERAL
said, he was entirely ready to support any clause 821 which should do this—and no more than this—to make the reservation of a rent-charge, in cases where property was conveyed for charitable purposes, equivalent to the payment down of the whole purchase money. He objected to the clause, because, in his opinion, it did a great deal more than this.

MR. HEADLAM
said, he did not think that the hon. and learned Gentleman, with all his ingenuity, would be able to put the clause in better language. He hoped it would be adopted as it stood, and if on the Report the hon. and learned Gentleman could suggest better terms, he would willingly consider them.

THE SOLICITOR GENERAL
said, he thought that some such words as these would be sufficient; that in the case of the conveyance of property for charitable purposes, where rent is reserved, that rent, so reserved, should be deemed and taken to be the full and valuable consideration within the meaning of the Act.

§ MR. SPOONER
said, he was of opinion that their proceedings justified him in the remark, that it was derogatory to the dignity of the House to discuss this question at a sitting at which the law officers of the Crown were not present. He wished to have an interpretation of the word "seised" in the clause, and to know whether a tenant for life would have power under that interpretation to part with the full estate.

THE SOLICITOR GENERAL
said, that the term "seised" in the clauses of this Bill could not, of course, be construed to give a power to a tenant for life to convey away, for charitable purposes, a larger interest than the person seised himself possessed on the property.