MORTMAIN BILL.

HC Deb 03 May 1854 vol 132 cc1190-7

Order for Second Reading read.

MR. BOWYER

said it was not his inten- tion to offer any opposition to the measure. The general principles of the Bill appeared to him to be sound and reasonable, and he felt great satisfaction at seeing a Bill brought forward which in some respect touched the endowments of the Roman Catholic religion in a spirit of fairness and justice, and without any of those hostile observations, or that hostile tone, which he had so often to deplore in the proceedings of the House with regard to Roman Catholics and their institutions. He could safely say for himself and for those with whom he acted, that whenever measures were brought forward affecting them in the fair spirit that characterised the speech of the hon. and learned Gentleman (Mr. Headlam) who brought in this Bill, he should be always ready to meet those measures in the same sort of spirit, and to discuss them fairly and in a liberal manner. He begged to state distinctly that the Roman Catholics of this country did not, desire to be legislated for on an exceptional or exclusive principle. They were willing to be dealt with on the same legal principles as Her Majesty's other subjects; but when he said that, he must say it with the limitation which the proposition itself necessarily involved. When it was said of any set of persons or set of interests that they were ready to be legislated for in the same spirit as the rest of Her Majesty's subjects, they expected, nevertheless, that regard should be shown to the peculiar circumstances in which they were placed. Now, the Roman Catholics were placed under peculiar circumstances. For a considerable period all their institutions were absolutely illegal. By the liberality and the wisdom of Parliament that state of things had been, to a considerable degree, altered; and by successive Acts of Parliament they had been more and more treated in the same manner as other religious denominations in this country; but, notwithstanding that, there remained objectionable legislation still in existence affecting Roman Catholics; and, therefore, when a measure was brought forward referring to subjects of this nature, great care must be taken so to modify the measure that it may work no injustice, having regard to the peculiar laws and institutions under which the Roman Catholics and their institutions were placed. The task of so adapting such a measure was one of great difficulty and delicacy. He thought the hon. and learned Member for Newcastle-on-Tyne (Mr. Headlam) had shown in this Bill a laudable disposition so to deal with these institutions; but at the same time he thought it was utterly impossible that the House could properly deal with all the circumstances and the complicated legislation that must be considered in reference to the adaptation of this Bill to the circumstances of the persons whom he represented. It would be impossible for that House to do it, and therefore he thought it would be conducive to good legislation, and answer the purpose of the hon. Gentleman himself, to refer this Bill to a Select Committee, for the purpose of thoroughly considering all those matters. He did not offer that suggestion with any intention of obstructing legislation. The business before the House was so light, that he thought it would be very easy in about a week's time to consider the Bill in a Select Committee, and he was sure if it went through that ordeal it would be more satisfactory to all the parties affected by it. He felt bound to offer the suggestion, not merely from a consideration of the interests of the Roman Catholics, but because it affected all the great charities in the kingdom. All the great foundations in London and all over England were affected by it, and it was impossible to carry through this Bill so as to do justice to all these cases without the consideration of a number of nice points of law and conveyancing that could not be considered by the House. There were clauses, for example, to cure defects of title, and those defects of title and the clauses to cure them were matters of great nicety on which experienced conveyancers might probably differ; and he was sure that the great charities of the country would feel they were much more safely and wisely dealt with if they found that a Bill touching matters of title and matters of so much importance had been considered by persons duly qualified in a Select Committee, than if it were passed by the House without going through that ordeal. He thought that the Bill, founded as it was upon a just principle, involved something beyond what appeared in the Bill itself. The principle he took to be this, that families should not be disinherited and injured for the sake of the enrichment of ecclesiastical or other charities. It was that distinction which ought to exist between private property and property of a different description, which if devoted to public charity, must be regulated by a species of law totally different from that private law which regulated the private property. But the question was a much wider one than that raised by this Bill. The real question was, whether the law of England, which allowed a man to disinherit his children, or the law of Scotland and other countries, which prevented him from entirely disinheriting his children, was the sound one. As the law stands now, a man, supposing him to be possessed only of landed estates, would be precluded from leaving anything whatever to any charity by will, though he had no wife or children, or other near relations; but a man, with a large family of children and a wife, had the power by his will to take the inheritance away from his wife and children and leave it to any worthless person in a manner detrimental to morals and injurious to the feelings of every person who knew the duties that a man owed to his family and to society. Though the law restrained a man from giving the property to a charity, it did not restrain him from throwing it away or leaving it away from his family for any purpose caprice might suggest, provided it was not for charity. Taking those things into consideration, it appeared to him, when they were called upon to give their opinion on the whole question of the power of disposing of property and the difference that exists between the law of Scotland and of England on that subject, that such an investigation, though not necessarily a long one, would be of very great value and importance. He promised that he would do all in his power to compress the investigation within such limits as would not obstruct the progress of the Bill. He thought it would be a valuable modification of this Bill if some power were allowed to a man on his deathbed to dispose, in accordance with a conscientious feeling and a conviction of duty, of a portion of his property for charitable purposes. He, for one, was against deathbed dispositions as a general principle. When made for ecclesiastical purposes, they were liable to cause scandal, and had brought a degree of blame, most unjustly, on the Church. Therefore he thought the hon. Gentleman acted wisely in providing against deathbed dispositions as a general rule, in favour of charities; but he thought that a modification of the sort he bad suggested would be very valuable, because it would reconcile that deathbed charity with the duties a man owed to religion and his conscience in many cases. It would enable him to do that which he ought not to defer until his deathbed, but which it was better should be done on his deathbed than not done at all. It would prevent the distress of mind that might happen to people on their deathbed who felt they owed it as a duty of conscience and religion to do some act of charity, restitution, or reparation, before they departed this life. The man who had that feeling should not be deprived of the consolation in his last moments of indulging that feeling, provided he could do it without inflicting injustice or hardship on any of those for whom he was bound in conscience to provide, and who should be the objects of his solicitude. Those reasons led him to appeal to the hon. Gentleman to allow this Bill to be referred to a Select Committee. He would take that opportunity of referring more particularly to one clause, about which he thought there was some misapprehension; and he thought that clause required to be very well considered in a Select Committee. He alluded to the 18th clause, which was supposed to deal with what was called secret trusts. He thought a great deal of confusion of ideas existed with regard to secret trusts. A secret trust was as much a trust as a trust that was not secret; the only difficulty was to discover that secret trust. He apprehended that that could be done now by the machinery and proceedings in the Court of Chancery. The Attorney General might file an information, and put a man on his oath, and oblige him to answer very stringent interrogatories, the effect of which must be to elicit whether he held the property under any trust whatever. lie would give an instance. A considerable time ago a sum of 100,000l. was left to the then Catholic bishop of the London district, Dr. Bramston. An information was filed against him, and he was asked whether this was his private property, or whether he was not bound by a secret trust to give that property to religious purposes belonging to the Roman Catholic Church, which at that time it was illegal to do, and which involved the forfeiture of any money left for such a purpose. The bishop considered the matter most scrupulously and conscientiously, and though he might have said, certainly, that legally and in point of law it was his private property, and he might have done anything he pleased with it; still he honestly admitted he did hold it as a trust, feeling that he did hold it as such, and was bound to apply it to the purposes of religion; and he sacrificed the whole of that large sum of 100,000l., though he might have merely answered the question with reference to the law, and said it was his own property. He (Mr. Bowyer) mentioned this circumstance, not merely to show the honourable feeling of the right rev. Prelate, but to prove that, with reference to a secret trust, it was dealt with, when discovered, at law as if it were not a secret trust. What were called secret trusts were not trusts at all. Where a man had property left to him, and felt bound in conscience, either on account of his position, or because he thought it would be agreeable to the wishes of the person who left it to him, to apply the money to charitable purposes, that was not a trust at all. It was just like a debt of honour, and every one knew perfectly well there were a great number of moral obligations which the law could not enforce. He defied the hon. and learned Gentleman, with all his legal skill and assiduity, to frame any measure which should deal with all those conscientious obligations; any provision which would trench on the distinction between legal and moral obligations would only induce confusion and difficulty. For these reasons he intended to press the hon. and learned Gentleman to allow the Bill, after it had been read a second time, to go in due course to a Select Committee, and should he be on the Committee he would do everything in his power to facilitate the passing of the Bill through it, and to give effect to the sound principles on which this valuable measure was framed.

MR. WHITESIDE

said, he did not intend to offer the least opposition to the second reading of the Bill, and he thought the hon. and learned Gentleman was entitled to much credit for the able manner in which he had brought this important subject before the House. He was glad to collect from the observations of the hon. Member who had just spoken, that he had no objection that the principles of this Bill should be extended to Ireland. The hon. Gentleman had justly pointed out the mischief of deathbed grants, and he, for one, was quite willing that the ecclesiastics of his Church should be dealt with like those of any other religious community. In Ireland, they had a very excellent institution—the Charitable Bequests Board—on which some Roman Catholic laymen of the highest character sat, and when a bequest was lodged in their hands, they took care that it was applied bonâ fide to the purposes for which it was given. With respect to secret trusts, if the provisions of the measure were made sufficiently pointed, he should be happy to support them.

MR. COLLIER

said, he would not advise the author and supporters of the measure to assent to the proposition now made for referring it to a Select Committee. Two Committees had already sat on the subject, and it had during two Sessions gone through the most careful investigation, of which the present Bill was the result. It seemed to him to express the conclusions to which the Committees had arrived as clearly and shortly as possible, and was of a character by no means complicated in its details. It extended cautiously and carefully principles which had been sanctioned by their recent legislation, the dispositions of the measure being governed by similar rules, and the chief addition being the provision of facilities for new sites to schools and churches. The Bill also enacted certain limitations whereby the disposition of personalty was controlled in the same direction as that of realty, which to him seemed the most valuable part of the measure. It did not go to the full extent which might perhaps be desirable, of placing personalty on the same footing as realty. As regarded the main object, it was quite enough to restrict its provisions to a definite class of devises, which everybody understood, namely, those for charitable purposes.

MR. HUME

said, that with reference to the suggestion of the hon. and learned Member for Enniskillen (Mr. Whiteside), he had always been of opinion that the laws of England and Ireland ought to be assimilated. In fact, he should like to see the same laws in all the three kingdoms. Approving of the suggestion to extend the Bill to Ireland, he hoped the hon. and learned Member for Enniskillen would—no one more fit—prepare clauses to carry that suggestion into effect. He was opposed to referring the Bill to a Select Committee, being of opinion that any alteration necessary might well be made in Committee of the whole House. It seemed to be the rule now-a-days to get rid of every measure by sending it to a Select Committee.

MR. J. D. FITZGERALD

said, he quite agreed with the hon. Member for Montrose in thinking that there ought to be equal laws for England and Ireland; but it would not be wise, because a Bill of this kind was brought in, immediately to sweep away an existing system in Ireland, which was working well. Any attempt to extend the operation of the present Bill to Ireland would, he feared, be fatal to its passing into law during the present Session.

MR. HADFIELD

said, that the existing law of mortmain had presented the greatest objections to the extension of the benefits of charitable institutions. He looked upon it as a main cause of the prodigious success of charitable institutions that they had discarded endowments. In the present state of matters the evil apprehended from any alteration of the law regarding deathbed bequests must be regarded as one of idea rather than anything else.

MR. HEADLAM,

in reply, said he must beg to explain, that it had been his object in this measure to place all religious sects and persuasions upon the same footing. He could not fall in with the desire of sending this matter to a Select Committee. Two Committees, as had been mentioned by the hon. and learned Member for Plymouth (Mr. Collier), had already well considered the law, and their labours, he thought, had quite exhausted the matter. With reference to assimilating the law in Ireland with that in England, he would remind the House that the state of the law in England and Ireland was very different. Hence, although he saw no objection to extending the provisions of this Bill to the sister country, still he doubted whether it would be quite advisable to attempt to carry out the entire matter in one Bill, because that would be putting the English measure in some jeopardy to no very great purpose. Still, if the hon. and learned Gentleman (Mr. Whiteside) thought fit to move additional clauses in Committee, he (Mr. Headlam) would give them his support.

Bill read 2°.