HC Deb 14 March 1854 vol 131 cc796-817

said, the measure which he had now to introduce to the notice of the House would require some short explanation at his hands. The Bill which he wished to place before them was one which had for its object to secure perfect freedom in the alienation of their property for persons under religious restraint; and he would at once admit that it had relation principally, if not entirely, to the case of certain ladies who were termed nuns, and who were inmates of convents. Now, he did not intend to touch upon any question save one of property; nor was it his intention to offer any opinion with regard to the merits or demerits of conventual establishments, or to say one word that could in any way prove hurtful to the religious feelings of any hon. Gentleman. But he should endeavour to show that a practical grievance existed; and he would ask that House to apply to that practical grievance a practical remedy. The law of England gave to every subject of the realm the right to dispose of his or her property; but while it secured that right to each individual, it abhorred the exercise of any undue influence from any quarter restraining or directing that which it meant to be a free disposal; and his proposition was, therefore, that it was essential, according to the well-settled principles of our law, to apply a remedy to the overbearing exercise of spiritual influence, upon precisely the same footing that the courts of equity would prevent the exercise of influence of another character and description. Now, examples as to the manner in which the courts of justice had dealt with what was called undue influence were familiar to every mind. It was well known that attorneys could not take deeds or conveyances from clients while the relation of attorney and client subsisted between them, because it was felt that in such a position they attained a knowledge of the affairs of clients so as that they might gain an influence over them, and might abuse the confidence reposed in them to their profit and advantage. A parent could not obtain from his child, even when he came of age, a conveyance in safety. But the case of a guardian and his ward explained the law much more clearly. Could a guardian take from his ward, even after his coming of age, a settlement of accounts or a conveyance of property? He could not. And why? Because the relationship of a guardian to a ward naturally gave rise to a certain influence, and not until that relationship ceased to exist, and not until sufficient time had elapsed to dissipate its effects, did the law permit any conveyance to be made. Again, take the case of a master and servant: an old and healthy-minded gentleman was in the hands of a mean, crafty servant, whose manner was very affectionate to his master, and by which he contrived to secure the conveyance of property to himself, through means of undue influence. A court of equity, however, set aside the conveyance on proof of undue influence having been exercised by the servant over the master. He might also mention a remarkable case of a physician and patient. The physician having attended with extraordinary care and solicitude, he obtained a grant from the patient of 25,000l., to be paid when the latter should die. Vice Chancellor Shadwell, however, was of opinion that such a disposition of his property rather tended to accelerate the march of the patient to the grave, when the object should be to save his life. They acted on precisely the same ground as if it were a conveyance obtained by a party exercising a religious influence of any kind, not merely through the confessional, or in the case of a religious person inhabiting a convent, as they did in the case of a physician obtaining a deed from his patient. Now, all these examples proved to the satisfaction of every reasonable and reasoning man, that undue influence was guarded against wherever it interfered. There were two more instances which he thought ought to be added; one was the case of a person confined in prison, where witnesses were required to attest all proceedings between the prisoner and his attorney, merely because the transactions had occurred in a place of confinement. The other case occurred before Lord Eldon, where a patient from a lunatic asylum having recovered his understanding, had made a conveyance to the keeper of the asylum. But the Lord Chancellor set aside the deed, because he considered the influence acquired by the keeper was such as to render it impossible that at the time the testator was possessed of that amount of intellect which he ought to have to dispose of his property with reason and judgment. Lastly, let them take the case of a married woman; suppose her to obtain a gift, a devise, a legacy, or a conveyance of property. Could she convey her property to the object of her choice—to her husband? She could not without previous examination and inquiry. And why? Because the law said, from the very relationship between the parties, the influence of the husband must necessarily be so overbearing that he ought not to be permitted to obtain the property absolutely without the wife undergoing a previous examination in the presence of persons appointed to conduct that inquiry as to whether she of her free will and inclination gave up her property. Now, nothing remained, therefore, but to apply to the question of religious influence, what the law of England declared in reference to the disposition of property, where it had been effected through the medium of a person exercising spiritual ascendancy or spiritual terrors over the mind of the person. In the times of Lord Northington there was a case mentioned in the Collectanea Judicia of an Independent preacher, who had been particularly attentive to an old lady. He had prayed with her, he had read to her, and comforted her in a variety of ways, spiritually and otherwise; and finally he conducted her to Surrey, where they lived in seclusion, the house being surrounded by high walls and no one being allowed access to it. He then took a conveyance of the property, and the question was, ought it to stand? Well, the Lord Chancellor said he would spoil the independence of the Independent preacher, and compelled him to restore the property which he had obtained through the medium of spiritual influence. Much later than that, a case occurred before Lord Eldon, in which Sir Samuel Romilly delivered one of his most famous arguments. It was in impeachment of a deed on the ground that it had been obtained by religious influence; and on that occasion the great lawyer, not aware of the previous decision, argued with all the strength and ability which that remarkable man possessed, and having gone through all the examples wherein deeds and instruments affecting property were set aside, he pressed upon the Chancellor the necessity of dealing with cases in which religious influence was brought to bear in the most decided manner. He succeeded, and the deed was set aside. Such was the law and principle with reference to this country. But he might be asked, "what case he had to prove to the House in order to show the necessity of its interfering with deeds executed within the walls of conventual establishments?" The reasons, however, he thought would be already anticipated by the House. They were comprised in the fact of the known difficulty of getting at the evidence of what took place within the walls of a convent, as compared with the facility of procuring evidence outside of such establishments. They had no less than four examples of deeds and conveyances executed by nuns without the approbation of the parties making them. In referring to those cases, he thought he would be placing before the House facts which fully justified him in submitting the present measure to Parliament. One of those examples was a case that was brought before the Irish Court of Exchequer, when it had an equitable jurisdiction, in which case an able judgment was pronounced by Baron Pennefather. It was the case of a young lady who had been placed in a convent while she was under age, Now, he must observe that he did not intend to refer to mere idle reports, which could not be authenticated. He was referring to matters that were indisputable. The lady to whom he was referring having been placed in a convent before she was of age, there was an agreement made by her friends with the heads of the establishment that she should not be professed a nun until she had attained the age of twenty-one years, and without due notice being given to them. They paid a sum of money to the convent upon the young lady's entrance. While she was within the convent she acquired some property. The nuns then professed her privately before she was twenty-one, and without giving the notice to her relatives, as was agreed upon. They then obtained her personalty, amounting to 1,100l., and conveyed to the establishment her real estate. She subsequently left the convent, and her mind becoming strengthened by absence from her retirement, she became acquainted with her rights, and she sought to set aside the deeds which she had executed. The matter was fully discussed, and the learned Judge, in pronouncing judgment, said:— In the year 1825 the young woman entered into the establishment of the defendants as a lodger, and not as a person who had irrevocably bound herself to take the veil. That this was so was manifest, independently of the evidence, and what was stipulated at the time she entered the convent. And what was that stipulation? That she was not to be professed till she became twenty-one, nor even then without the consent of her friends. The contract was violated in every material part by the defendants, because the plaintiff took the veil, and, it must be supposed, by the influence of the defendants, whilst under age, contrary to the duty of the defendants even without any agreement on the subject, and contrary to the express agreement entered into. Then it is stated that her brother-in-law is denied access to her—that her sister is allowed to see her, but never without some person connected with the convent being present; and it is seriously contended that the case of a deed executed by a person placed in a convent, where undue influence is more likely to be exercised than in any other place, is a case in which a court of equity cannot set aside the deed as being obtained by undue influence. No man can doubt that it was produced by the influence of the ladies over her person, secluded from her friends, her nearest relatives being denied access to her. The attorney ought to have apprised her of her right instead of drawing up the deed. Subsequently the Court withdrew from stating any general principle as to the execution of the deeds, and said they would rest it on the principle which governed the relation of ward and guardian. There was another case in which a will, executed in a respectable conventual establishment in Ireland, was impeached on the ground of undue influence having been exercised in its execution. He had made inquiries respecting this matter, and he ascertained that, after it had proceeded to a certain stage, it was compromised. The property in question was given to the heir-at-law for life, and an undertaking entered into that the convent was to get it upon the death of that person. The third case was one which had been mentioned before in that House. It referred to a family of great respectability in Ireland. It was the famous case of M'Carthy, a member of which family represented Cork in that House some years ago. There were two ladies of that family placed in the Black Rock Convent of Cork. Now, the House should observe, that establishments of this kind were springing up in vast numbers in Ireland, and the proprietors frequently purchased edifices belonging to the nobility. There could be no doubt that many young ladies of tender age entered those convents, some of whom, he believed, were well-disposed and actuated by a purely religious principle. To return, however: after the Misses M'Carthy had entered the convent their father died, and each of them became entitled to 10,000l. In conversations which they had had with their brother, they naturally said to him that they had enough of property for their own purposes—they loved their family, and their desire was that the two sums of 10,000l. each should be given to their family, who were endeared to them by the ties of nature as well as of affection. Accordingly it was understood that the relatives of those ladies were to succeed to this property of 20,000l. Then came the question between the convent and these inmates of the convent. The convent claimed the money by virtue of that which makes the distinction between this and all other cases that can be quoted—he meant the case of the inmates of those establishments by virtue of the vows of poverty and obedience which the nuns were obliged to take. Now the principle of his Bill was to secure perfect free will in the disposition of property, and he was struggling against a system which denied the exercise of free will wherever it could, and which then sought to avail itself of the advantages of our free and noble system of jurisprudence, and called upon Parliament not to meddle with those establishments lest it might interfere with the free alienation of property. He thought he should be able to show how the deeds were executed within the walls of that convent which conveyed away this large amount of property. This fund of 20,000l. was vested in the hands of trustees who were determined not to give it over to the convent. The convent thereupon commenced a suit in Chancery in the name of the two nuns, who were opposed to being parties to any suit against their relations, and whose free will would have been to have alienated the property to their dear relatives. Their names, however, were used in the suit contrary to their will, as the evidence adduced in the course of the proceedings would show. Here was the description of the case given by Mr. Nelson M'Carthy, their brother, in his depositions:— I had a conversation with my said sister Catherine in the month of August, 1843, and in the presence of my brother, the said John M'Carthy, who principally maintained the conversation with her. In this conversation the said Catherine said, that she had applied to the superioress for liberty to assign any right that she had in the assets of her father to her younger brothers; and that the superioress said, that she had not the power of giving such liberty, but told her to apply to the bishop. The said Catherine said, that she afterwards waited until the bishop visited the convent, and, having had an interview with him, she begged permission to assign any right which she may have had to her father's assets to her four younger brothers. She said that the bishop had no power; upon which my said sister Catherine asked him who had the power? to which the bishop replied, 'Nobody,' and told her to go to the superioress. The said Catherine told him that she had already been with the superioress, who referred her to him; upon which the bishop said, 'You must observe your vow of obedience.' The said Catherine then said, 'If you mean, my lord, that I must dispose of this property against my conscience, it will be for a court of equity to decide how far such an act would be valid,' or words to that effect; to which the said Catherine stated the bishop said, 'If these are your ideas, madam, let me tell you I have lawyers in my family as well as yours, and this is too good a thing not to look after.' It appeared that they had, indeed, eminent lawyers who did look after it. There was a subsequent passage in those depositions which proved the necessity for such a measure as he proposed to bring in:— I subsequently had several conversations with the said Maria and Catherine, in which they both said that they did not claim any share whatever in their father's assets, and that they were no parties to the law proceedings, and that it was without their consent that legal steps were taken against their family, and that they would not go to law with strangers, much less with their own family; and my sister Maria told me that she cried or wept the whole night long after she signed the deed, making over her claim to Mrs. Fulham and Mrs. Lynch, and assured me it was no want of regard to her family that led her to do the act, but that she was called on under her vow of obedience to do so; and to show her indifference in respect of the money as far as she herself was concerned, that she would, if required, by her superioress, throw the money down the river, or words to that effect; and she added that she had no free will of her own. This last conversation occurred in the absence of Catherine; and I asked her why my said sister Catherine, whom I had previously sent for, did not come down to the visiting-room; and she replied, that she believed Raphael (meaning my sister Catherine) was unwell, and that she had suffered from the censure of the bishop, and that she was undergoing punishment. At this time I was aware my sister Catherine had refused to sign the deed. I afterwards saw my said sister Catherine, after the lapse of some weeks, when she looked as if she had suffered much both mentally and corporally, and her spirits were much depressed, and she informed me that she feared she would be obliged to sign the deed in compliance with her vows, and that we had no idea of the mental training that they went through, and that she would be obliged to state that acts were free and voluntary, and that everything done by her as a religieuse must be done cheerfully and freely, otherwise it would be deemed and considered that she had broken her vows. When I next saw the said Catherine it was after she had signed the deed, when she said, in reference to the deed, that a pen might as well have been put into the hand of a corpse as into hers when she signed the deed, as she knew she came to do an act contrary to her conscience, and let the sin be on those who caused her to do so. I had a private conversation with my said sister Maria, who had remained after all the rest had gone. I asked her whether she had read my affidavit, and she said she had. I then asked her whether it contained the truth, and she said, 'Yes.' I then told her I had read her affidavit of the 26th day of October, 1844, and asked her how she could have made the statement therein contained, which appeared so much at variance with all her previous conversations with me? She replied to me in these words:—'Ah! my dear Nelson, I refused to make that affidavit in my own person as coming from Maria M'Carthy; but I told the solicitor, Nicholas Daniel Murphy, if he put the word "religious" into the affidavit that I would then make it; and he having put in the word, I did so accordingly make the affidavit, as I found the word "religious" in it.' I then said to her, 'Maria, if one of the young ladies in the convent was obnoxious to the superioress, and that you were desired to give her arsenic, would you do so under your vow of obedience?' The said Maria remained silent and without answering for some time, upon which I repeated the question, when she at length replied, that she would not be asked to do so; and I said, 'Maria, do not say so, as they have asked you to make an affidavit which you refused to make in your own person, and to assist in law proceedings which you stated were contrary to your wish and taken without your consent, and in which you were plaintiff without your knowledge. Here was another passage equally impor- tant. The deposition, after stating that the deponent learnt at the convent afterwards that Maria's intellect had been affected, went on to detail another conversation with Catherine to the same effect, in the course of which she said— That if all the sufferings during her whole life were contracted within the space of half an hour, it would not equal what she had suffered since her father's death in reference to this matter. There was then a remarkable passage in which she stated that she had seen a book in the convent, and found there that the punishment for serious crime was to be immured and fed on bread and water, and that in some cases people had died of it; and that it had been decided that any person or member of the convent speaking or acting against their claims to this property would be guilty of a mortal sin. Now, what was the judgment pronounced in this case? He must do the present Lord Chancellor of Ireland the justice to say that he gave a very manly and decisive judgment, in the course of which he put the matter as clearly and as forcibly as it was possible for any man to do. Here were the words of the Lord Chancellor:— That society is so framed that the members of it are bound by the vows which they have taken on themselves, and the construction of these vows is declared by the society to be that its members are no longer, from the moment of taking them, free agents in the distribution of their property. They are enslaved to the rules and regulations of the community which they have joined, and are without the possibility of relieving themselves by any act of volition from their vows. Whatever their connections with others—whatever their relations in life—regardless of every obligation of nature or society, they must adhere to these vows; whether they be isolated individuals or members of a family; whether they be persons who have no ties or kindred to bind them to the world, no objects to attach their feelings, to claim their affection and bounty, and entitled to their care; or whether they be the reverse of this, and, having the nearest ties of blood, even children (for widows, after they have become such, may enter these communities), or, at least, relatives in the next degree of kindred, yet it makes no difference; by the rules of the institution they must cast all such considerations to the winds; and, willing or unwilling, freely offering it or not, of their own accord or under coercion of their vow, they must devote all their property to the benefit of the community, and execute deeds to transfer it. On such considerations I can well understand, and perfectly concur in, the policy of the ancient law, which placed persons thus circumstanced in the position of civil death. During the argument I put the case of a prisoner in a dungeon, and a gaoler extorting a deed from him, and coming into court and saying, 'I have that person still in the dungeon, but I want the property for him and myself.' Am I bound to give it to him? I protest I will do no such thing. This court cannot listen to such a claim. The Lord Chancellor offered the parties to send down an issue to a jury to try whether the deeds in question were executed by undue pressure or not; but the convent refused to accept of this offer. The Lord Chancellor then proceeded to deal with the question ably and clearly, and concluded by likening the case to one of the gaoler and the prisoner. The House would now see the practical working of this system. Since the Reformation property was less protected in regard to those establishments than it was before. Why? Because in Roman Catholic times the nuns were in law considered civilly dead, and administration might be taken out by any of their relations and friends as if they were dead, and the next parties entitled by the law of nature and the law of the land to the property might possess it. He did not want to legalise those institutions, but it was impossible for them to ignore their existence. The effect, however, of these establishments not being recognised was such as he had referred to in the cases he had quoted. While the heads of those establishments speak theoretically of the right of exercising free will, they practically make it impossible for the inmates to have any free will at all. The judgment of the Lord Chancellor, he believed, had secured the property for the family. He had one other case to bring under the notice of the House. It was that of "Blake v. Blake," which was still pending for the decision of the House of Lords. This was the case of two ladies, one of whom, the widow of an eminent barrister, was a Protestant, and the other, the sister of the deceased barrister, a Roman Catholic and an inmate of a convent. The widow claimed under the will of her late husband. In the same way as in the former case, she had several interviews with her sister-in-law in the convent, in which the latter expressed no desire whatever to dispute the will. Notwithstanding this avowed disposition on the part of the lady in the convent, the nuns ultimately commenced proceedings for the recovery of this estate in the name of the sister of the deceased. When the case came on for argument, the lawyers ransacked the old Statutes, and not being able to find any positive law doing away with the ancient disabilities under which nuns had laboured, they contended that the party in the convent was dead in point of law, and could not, therefore, lay claim to the property in question. The question was argued with great ingenuity and ability; and the Lord Chancellor gave judgment in the matter, regarding the feeling of the country since the Reformation to be repugnant to those institutions, but recommended an appeal, and that appeal was now pending before the House of Lords. Now, what was it which he proposed to do to meet the evils to which he referred? He would read to the House the preamble of his Bill. The preamble recited:— Whereas females on being received into communities as professed nuns bind themselves by certain vows, and amongst others by a vow of obedience to persons claiming to be their religious superiors or spiritual directors; and whereas cases have been established in evidence before the tribunals of the realm, in which it appears females, influenced by the control and importunities of their religious superiors or spiritual directors, have been induced to make dispositions of property in contravention of their personal wishes and the affection expressed by them towards their relations; and whereas the dispositions of property made under such control and authority have been declared void and set aside by the tribunals as having been obtained by undue influence and contrary to the policy of the law; and whereas, by reason of the secluded life enjoined upon such females, the circumstances attendant upon such dispositions of property are, with the exception of the person under the restraint of such influence, exclusively in the knowledge of the persons so securing or obtaining such distribution of property or their agents, and evidence of such circumstances is not ordinarily accessible. The recital might, perhaps, appear rather long, but it was necessary to establish his principles, and it rested with those who wished to argue the matter to prove that the preamble went beyond those ascertained principles. The mischief therein recited was this, that from the secluded life and circumstances under which the inmate of a convent was placed, it was difficult, if not impossible, to get at the evidence of the circumstances under which property was conveyed away. The remedy he proposed was simply to this effect:— That any act, deed, will, contract, or agreement done, executed, or made by any female who has or shall have bound herself by such vow, shall be deemed as having been executed under coercion of such vow; and at the dictation or exercise of authority assumed over her against her own free will or judgment, unless the contrary shall be proved to the satisfaction of the court which shall be required to adjudicate on the validity of such act, deed, will, contract, or agreement. There were only three clauses in his Bill. The second clause merely stated that presumptive evidence of a lady having taken those vows shall be afforded by the fact of the lady being treated as a nun and residing in a convent. The measure, therefore, shifted the onus probandi on the persons who had obtained those deeds, gifts, grants, or conveyances. Now, he asked what objection could be made to this? Their argument was always this—any deeds which gave them wealth had not been obtained under the overbearing or overwhelming spiritual ascendancy which was asserted. Well, then, let them prove it to the satisfaction of the friends and relatives of the inmates of those establishments, who probably belonged to the same Church as themselves. If, however, they were not satisfied upon this point, instead of being compelled to grope after evidence through the medium of the nuns themselves, the friends or relatives could say that the property in question was theirs, unless the convent could show that the deed in respect to it had not been obtained by it under the influence of vows, and under the discipline which coerced the judgment and destroyed the exercise of free will. The mistake committed by the law was this. It ignored the fact that the inmates were bound by facts and obligations. His Bill did not say that they might not execute a valid deed within the walls of convents. If they chose to communicate with the relatives of the parties executing such deeds, well and good. But, as in all the examples which he had quoted, clandestine means were resorted to in the execution of deeds and conveyances, and undue influence was resorted to by the authority of the bishop, telling the young lady to remember her vows of obedience—by the authority of the superioress, who obtained the deeds—inasmuch as the free will was no longer preserved in those establishments, but destroyed. In order, therefore, to restore that free will, and to preserve the property to those who were entitled to it by the law of the land as well as by nature, he respectfully submitted his present measure to the consideration of the House. It was a most moderate and reasonable proposal; and if those deeds, wills, or conveyances be executed fairly and honestly, and not in the way in which Roman Catholic families had proved that they were executed, it could not operate unjustly. No objection could be taken to it by any but those who were determined to clutch at all property through every contrivance—through spiritual ascendancy and spiritual fear. He would now move for leave to introduce his Bill.

Motion made, and Question proposed— That leave be given to bring in a Bill to secure to persons under religious vows the free exercise of their lawful rights in the disposal of their property.


said, he thought that the answer to the proposition of the hon. and learned Member was contained in a very few words. The case which appeared to him most analogous to that brought forward by the hon. and learned Gentleman was that of husbands and wives in this country, and if it were desired to apply the same law to nuns as existed with regard to the conveyance of property from a wife to a husband, he should object to it on the ground that, even in the case of wives and husbands, that law was found to be completely nugatory, and it would be much more so in the case of nuns. With regard to the affidavit quoted by the hon. and learned Gentleman, it only appeared to him to show that, in the case of nuns, there was a freedom of access and of persuasion which did not exist in any other position in which English ladies could be placed. He should oppose the introduction of the measure on the ground that it would be found to be entirely nugatory in its operation, and that its only result would be to place a class of ladies in a position of painful inconvenience.


said: If the cases cited by the hon. and learned Gentleman proved anything, they proved that legislation was unnecessary, for in every case it had been held that a deed executed under undue influence in a convent was void. If the cases were looked at in an unprejudiced manner, they would wear a different aspect from that which had been given to them. The principle was carried to the fullest extent with regard to convents which the law recognised in cases where one person was supposed to exercise undue influence over another. Legislation was, therefore, quite unnecessary, and it was more unnecessary for this reason—that when cases such as those alluded to, came before Protestant judges and Protestant juries, instruments so executed were looked at with the utmost degree of jealousy—with a jealousy which those who knew the true nature of the system considered unreasonable. He should feel great hesitation in voting for a Bill the preamble of which contained such allegations as prejudged the whole matter, and went, in fact, to the condemnation of conventual establishments. Now, how was it possible for those persons to vote for such a Bill who considered conventual establishments of the greatest value to civilisation and religion and the welfare of the country, and so important with regard to the education of the poor of Ireland? He agreed with the hon. Member for Mayo, that if the object of the Bill had been to place the inmates of conventual establishments in the same position as married women, it might have been assented to, if it would have tended to satisfy the suspicions—the groundless suspicions—of his fellow-countrymen. The Roman Catholics were not bigoted or ununreasonable people. Their Church had never volunteered this concession, and never would volunteer it, because there was no ground for it. That Church was too confident of her own purity to volunteer such measures. But if any measure were fairly proposed which would allay the suspicions of Protestants, the Roman Catholic Members of the House would candidly entertain and consider it. Now, what was the principle of the Bill? It seemed to him to be quite contrary to the ordinary principles of jurisprudence. It provided that a deed should be void unless proof was given that it had not been executed under undue influence. It placed the person supporting the deed in the position of having to prove a negative. The usual course was for a person impeaching a deed to prove its invalidity. The law provided that a deed should be executed in a certain manner and with certain formalities, and so long as those formalities were observed the deed was good and litigation was prevented; but the sort of legislation now proposed would lead to an immense mass of litigation. The matter might be much more fairly considered if the hon. and learned Gentleman would endeavour to manage it in a more candid spirit—if he would forget that acrimony which he always manifested in all matters affecting the Roman Catholic Church—if he would give the members of that Church and its high dignitaries some degree of credit for justice, humanity, and religion—if he would cease to throw out violent imputations upon them, and cease to treat them as capable of any wickedness or any baseness that would disgrace human nature, and if he would apply his mind to the consideration of the subject in a spirit of fairness and Christian feeling.


said, he felt regret that at a time when a cordial unity of feeling was beginning to be manifested between the people of Ireland and of this country, religious dissension should be again interposed to reawaken a feeling of distrust. In his opinion, the proposal of the hon. and learned Member for Enniskillen (Mr. Whiteside) was mischievous and wanton. It was wanton, because not the slightest desire for such a measure had been shown, either by petition or in any other way; and it was mischievous, because it might occasion bitterness of feeling. He was happy to see that the hon. and learned Gentleman had met with no response from the House when he appeared to be about to introduce into his speech that bitterness of spirit which was usual with him when treating this subject. He should oppose the introduction of the measure, for he did not think any Roman Catholic could sanction such a proposal.


said, he strongly approved of the principle of the measure, and trusted the House would sanction it by reading the Bill a second time. An hon. Member had spoken of the measure as one which involved a new principle. Not so, however, did he (Mr. Malins) understand it. Women were found inmates of conventual establishments. Whilst there property accrued to them, by descent or by gift. It had been found by experience that they executed instruments giving that property to the establishments of which they were the inmates, and experience had proved also, as in the case of the M'Carthys, beyond all doubt, that those who desired to exercise free will while in the convents, were not always permitted to do so. His hon. and learned Friend had explained the law affecting the various relations of society, and had instanced the state of the law regarding a parent and child, a guardian and ward, a master and servant, a solicitor and his client, and a physician and his patient. What was the principle of the courts of equity with reference to deeds of gift? It was, that when a deed of gift was executed by a person in any one of those positions the onus of proving the validity of the deed was thrown upon those who derived the benefit from the deed, and there could be no impropriety in adopting the same rule in conventual establishments. If a solicitor or counsel obtained a deed of gift from a client whilst that relation subsisted between them, the transaction was set aside as a matter of course, unless that solicitor or counsel showed that independent advice was called in; that they were, to use a legal phrase; "put at arm's length," and that, whilst they were at "arm's length," the deed which conferred the benefit on the solicitor or counsel was executed. There was, therefore, an incapacity in a person to execute a deed in favour of those who stood in those relations. But could the House imagine any incapacity so great and insurmountable as that which existed in the case of the inmates of conventual establishments? Hon. Members of the Roman Catholic religion seemed to think that a wise and beneficent measure to protect from improper influences a member of their communion could not be introduced into this House; and that a spirit of bitterness against their religion always actuated those who proposed a measure of the sort. It was much to be regretted that all such proposals were met in this manner. Now, he begged to say that nothing was now asked from the members of the Roman Catholic Church which he was not perfectly willing to submit to himself. He could venture to say, as one who had enjoyed an extensive experience in the courts of equity, that if a case were brought forward in those courts—and he had been engaged in such cases as counsel—in which a clergyman of the Church of England, being the spiritual adviser of or the attendant on a man or woman, whilst that relationship existed, obtained from that person a gift of money, or the execution of a deed or any other act, by which a material benefit was conferred, the court of equity would not hesitate one moment in setting aside such an act. Were they, therefore, seeking to extend to monastic and conventual institutions any new principle? And was there any injustice in saying, that a person having executed a deed, who had to a certain extent parted with his or her liberty, a deed executed under such circumstances should primâ facie be taken as not binding, and that the burden of proving the validity of the transaction should be thrown upon those who acquired the benefit under it? Could there be anything unreasonable in enacting, as his hon. and learned Friend proposed to enact, that a deed executed by a lady whilst an inmate of a conventual establishment should primâ facie be taken as void; and that it should lie upon those who had obtained the gift to show that it was not done whilst she was under their influence, but that totally independent advice was called in? The case of the husband and wife had been referred to, and, in the event of a married woman desiring to give money out of the Court of Chan- cery to her husband, the Judge had a communication with her, in order to ascertain that she acted by her own free and independent will. Should not, then, the same principle be extended to the cases contemplated by the proposed Bill? The Bill did not propose to take away the capacity of these institutions to receive gifts. It merely threw upon them this duty—that before they did so, they should place the lady in the hands of some person who was not the adviser or solicitor of the establishment, but an independent counsel or solicitor; that she should have the advantage of being advised by those who were disinterested, who would tell her what she could and could not do, and would take care that her act was the result of her own independent resolve. That, and that only, was what the measure of his hon. and learned Friend proposed to do. He looked with confidence, therefore, that the Government would be of opinion that this was a Bill which at all events deserved serious consideration; and that, as the noble Lord (Viscount Palmerston) had to-night supported the introduction of a Bill of which he expressed his disapprobation, the principle of the present measure would not fail to receive his sanction and support.


said, that the hon. and learned Gentleman who supported the Bill had proved that the existing law was adequate to meet the case of the disposal of property under undue influence; and it was, therefore, because the proposed Bill was unnecessary that he (Mr. Lucas) should oppose its introduction. It was proposed, with respect to the disposition of property by nuns, that the House should interfere in the interest of the relatives, but no evidence had been laid before the House that the relatives of nuns, being Catholics, were not perfectly ready to interfere in their own interest. He had always found the relatives of nuns ready enough to prevent their property being made over to convents, and to vindicate their own right and title to the good things of this world, of which they imagined they were about to be deprived; and he had heard of many instances in which unjust exceptions had been taken to the disposition of property by nuns; but of none in which the relatives of nuns were unwilling to press their rights to the extreme. He thought the objection against the introduction of a Bill of this kind conclusive, on the ground that a Committee was already ordered to be appointed to inquire into the whole status of nuns and their condition before the law. Consequently, it was not right that in the meantime a measure should be propounded practically to supersede part of the inquiry which the House had determined that that Committee should enter on.


said, he thought there was some force in the observation which had fallen from the hon. Member who spoke last, that a Committee was about to be nominated to inquire into the whole matter. He thought, therefore, it would be better to postpone any specific measure until the Report of that Committee had been received, and their recommendations were laid before the House. At the same time, as he (Lord Palmerston) confessed that on principle he was not disposed to object to the measure of the hon. and learned Gentleman, he would suggest to him that, if his Bill were now brought in, he might postpone the further stages of the measure until the Committee should have investigated and reported to the House. He thought a fair objection had been taken to the wording of the preamble, which was not necessary for the accomplishment of the purpose the hon. and learned Gentleman had in view. He would endeavour to consider the matter as if he were a Roman Catholic, which certainly he was not, and, as a Roman Catholic, he should say that there were two grounds upon which the principle of the hon. and learned Gentleman's Bill was a right one; but then he should carry the principle a little further than the hon. and learned Gentleman proposed to do. In the first place, as a Catholic layman, he should be interested in preventing any subtraction of property belonging to families under the circumstances in which it was alleged such transfers were made. And taking into view the real interests of the Catholic Church, and of those establishments to which Catholics attached value, he should say it would be advisable, even in regard to their own interests, to exempt those institutions from the suspicions which it could not be denied were entertained with respect to them. If the Catholic laity were persuaded that the existence of those monastic institutions was essential to the welfare of the Catholic Church, it could not be supposed that they would have to depend for their support simply on the inmates of the establishments themselves; and he thought it would be much more for the credit of those institutions that they should be perfectly free from the imputation, that their superiors took advantage of the influence which they possessed over the minds of the inmates. But did the proposal of the hon. and learned Gentleman go really to the point to which his argument and principle extended? It seemed to him (Lord Palmerston) that the measure fell short of that. The hon. and learned Gentleman's argument was this:—He said that the vow which was taken by the nun was a vow of obedience, and that that vow was so strong upon the mind of the nun that, whatever she was told by her superior to do, she did that, and it consequently became her will. Now, suppose an additional solicitor was brought in to ask the nun whether an intended conveyance was the act of her own free will? The nun, whose mind was actuated by the vow she had taken, and by the order she had received from her superior, would, without doubt, reply in the affirmative, and say, "It is my will." It was, in truth, a will forced upon her by constraint of her vow; but it was for the moment the will of her mind; therefore he was afraid that the Commissioner proposed to be introduced by way of security would fail in accomplishing the purpose the hon. and learned Gentleman had in view. That, however, was a matter of detail, upon which he did not pretend to offer his opinion as a correct one. But he would suggest as a compromise that might be accepted by all parties, that if the hon. and learned Gentleman obtained permission to introduce his Bill it should be with the clear understanding that he would not press it forward until the Committee yet to be appointed should have examined the subject, and suggested that which might occur to them as the result of their inquiries.


said, he should be most happy to adopt the suggestion of the noble Lord, but he was not quite sure that the Committee alluded to would have authority to investigate this question of property. That Committee was to inquire into the number and rate of increase of conventual establishments, and the relations in which they stood as regarded the existing law, and to consider whether any and what legislation was necessary. If the noble Lord were of opinion that these words included investigation into property, he was quite willing to express his acquiescence in the suggestion he had thrown out.


said, there could be no doubt that the question was included in the terms of the Motion under which the Committee were to be appointed. He entertained no doubt upon the subject, and thought it would be far more satisfactory that the Committee should have the opportunity, before the Bill proceeded to a subsequent stage, of investigating the various matters of fact referred to by the hon. and learned Member (Mr. Whiteside) in his opening statement, in order that the House might clearly know how far the vows taken by the inmates of conventual establishments operated to make them other than free agents in the disposal of their property, and how far any abuses had arisen from the exercise of the influence acquired by the superior through those vows over the inmates of those establishments. It struck him that the hon. and learned Gentleman had proved too much in support of the provisions of his Motion. If it were true that all the inmates of convents were, by their vows, placed completely as passive instruments in the hands of their superiors, then he went along with his noble Friend (Lord Palmerston) in saying that the Bill ought to go much further than it proposed to go, and deprive them altogether of the power of making testamentary or other dispositions of their property in favour of the establishment of which they were inmates. Individual cases had been referred to, and they might be cases of real abuse; but they did not go to show that there was a general influence exercised over the minds of the inmates as a consequence of their vows. He thought the House ought, before it legislated, to know what was the real state of things in reference to the subject. He could not believe that it stood on the footing which the hon. and learned Member had represented. He could not believe that persons who became members of such institutions were reduced to the situation of mere passive instruments and tools in the hands of those under whose spiritual superintendence they were placed. If it were so, it was unquestionably the duty of the State to interfere, and put the disposition of their property under the most effectual restraint. But even supposing Parliament was called upon to legislate, he could not admit that the measure now proposed would have the desired effect. It proposed that the inmates of conventual establishments should be placed on the same footing as persons whom the courts of equity now held to be so far under the influence of some paramount dominion, that it was necessary, before they disposed of their property, to show that they had been emancipated, and made independent of the control and influence to which they might be supposed to be subjected. It proposed, as he understood it, especially as developed by his hon. and learned Friend (Mr. Malins), that it should be incumbent on every one who sought to avail himself of the disposition of property by the members of a conventual establishment, to show that independent legal advice had been brought in, whereby the nun was made acquainted with her power over her own property, and the consequences of what she was doing. But surely his hon. and learned Friend's sagacity must tell him that the presence of a mere solicitor or man of the law would be perfectly nugatory to counteract the influence of a superior spiritual authority, already exercising, through the medium of the vow of a nun, a paramount and dominant influence over her mind. If, then, they legislated, they must make out that there was general systematic abuse pervading those establishments, which he (the Attorney General) was bound to say he did not believe, and prevent the nun from making any disposition of property under any circumstances; but if they only showed that there was a possibility of abuse which existed in some cases, and which called for legislative interference, instead of stopping short with calling in the advice of a man of the law, whose authority would not be sufficient to offer a check or barrier to the superior influence of a spiritual authority, let some one be invested with judicial authority to inquire respecting the state of mind and feelings under which the nun or inmate of a monastic institution was making a disposition of her property, with a view to guard against the possibility of abuse. He, for one, did not hesitate to say, that if there were abuse, no apprehension of exciting ill will, or of giving offence, would prevent him from endeavouring to set up a barrier and check against that abuse. On the other hand, he did not see the necessity of legislating ineffectually, and exciting ill-will, without accomplishing by their legislation the good they desired.


said, he agreed that the Bill would be better considered when the whole case of conventual establishments had been gone into before the Committee; for his difficulty with regard to these institutions had always been, that he regarded the vows of obedience and poverty as irreconcilable with the law of the land and the constitution of the country. The fair and honest course was to treat the case in a manly and straightforward way. He did not desire to hurt the feelings of any one, but the duty of that House was to investi- gate the constitution of those establishments, to ascertain what was the nature of those vows, and then let the Bill be submitted to the Committee, and included in their inquiries.


said, he wished to call attention to the fact that the hon. Member for Dundalk (Mr. Bowyer) had given notice that when the order for the nomination of the Select Committee on conventual and monastic establishments came before the House, he should move that the order be discharged. It was, therefore, possible that there might be no Committee at all. He would suggest, therefore, that the hon. Member for Dundalk should withdraw his opposition to that Committee, and that this Bill should be allowed to be introduced, and should be referred to it.

Question put.

The House divided:—Ayes 68; Noes 40: Majority 28.

List of the AYES.
Bankes, rt. hon. G. Lacon, Sir E.
Baring, rt. hon. Sir F. T. Laing, S.
Barnes, T. Langton, H. G.
Barrow, W. H. Langton, W. G.
Blair, Col. Lemon, Sir C.
Booth, Sir R. G. Michell, W.
Brocklehurst, J. Morgan, O.
Cairns, H. M'C. Mowbray, J. R.
Challis, Mr. Ald. Mullings, J. R.
Chambers, T. Muntz, G. F.
Cheetham, J. Napier, rt. hon. J.
Craufurd, E. H. J. Neeld, J.
Crossley, F. Newdegate, C. N.
Davies, D. A. S. Packe, C. W.
Drummond, H. Pakington, rt. hon. Sir J.
Duncan, G. Palmer, R.
Dunlop, A. M. Palmerston, Visct.
Ferguson, J. Pigott, F.
Fitzroy, hon. H. Rice, E. R.
Franklyn, G. W. Robertson, P. F.
Frewen, C. H. Rolt, P.
Greenall, G. Sandars, G.
Hamilton, Lord C. Sawle, C. B. G.
Hamilton, G. A. Smith, W. M.
Hayes, Sir E. Smollett, A.
Hildyard, R. C. Spooner, R.
Horsfall, T. B. Thornely, T.
Hotham, Lord Tollemache, J.
Hudson, G. Walcott, Adm.
Ingham, R. Walter, J.
Johnstone, J. Wickham, H. W.
Jolliffe, Sir W. G. H. Wilson, J.
Jones, D.
Kershaw, J. TELLERS.
King, J. K. Whiteside, J.
Kinnaird, hon. A. F. Malins, R.

Bill ordered to be brought in by Mr. Whiteside, Mr. Malins, and Mr. Napier.

Bill read 1°.

The House adjourned at a quarter after Eight o'clock.