§ Order for Committee read.
§ House in Committee.
§ Clause 5, (The Trusts of Charities in the Absence of Settlements may be ascertained from the Usage).
§ MR. SELWYNMr. Chairman, when the was last engaged in the discussion of this Bill, I stated that I objected to Clause 5 standing part of the Bill if Clause I remained either in the shape of which it appears on the printed paper or as it is proposed by my hon. and learned Friend the Attorney General. I also stated that if that clause were filtered in the manner that had been suggested by hon. Members near me on more than one occasion, I should not be disposed to persevere in my opposition to the 5th Clause; and with a view to avoiding unnecessary discussions and divisions, I requested, and I believe I obtained, the tacit assent of the Committee to consolidate the discussion on the 1st and 5th Clauses, which are closely associated together. I think I may now congratulate the Committee upon having at last arrived at a period when this matter may be fairly discussed; and I believe that the result of free discussion will be to show that the points of difference are reduced to a narrow issue, and that the question may now be disposed of without further waste of time. The hon. and learned Member for Dundalk was a little hard upon those who opposed the Bill when he complained of the manner in which their opposition was conducted. It was not, however, our fault; rather it was our misfortune that the Bill has been put down day after day at the bottom of the list, or has been called upon at times when discussion was impossible. I agree with my hon. and learned Friend the Attorney General that, in order to arrive at a proper conclusion with respect to either the 5th or the 1st Clause, it is necessary to consider, first, what is the existing law on the subject, and, in the next place, the decisions to which the Committee has already come. I do not ask the Committee to reverse anything it has done before, although I was not able to acquiesce in its decisions, and have voted in the minority against some of them. But the first question is what is the existing law upon the subject? And here I ought to apologise to the right hon. Gentleman the Member for Calne (Mr. Lowe), for having attributed to him, on a former occasion, opinions 830 with regard to the law which were in fact pronounced by one of his colleagues. I believe that the right hon. Gentleman, so far from differing from me respecting the state of the law as I laid it down on the last occasion, in fact agrees in that view. So that it is only necessary for me now to refer to what I stated on that occasion; that is, that the decision of Lord Cottenham, in the case of "West v. Shuttle-worth," to the effect that a gift made for the purpose of saying masses for the souls of the dead comes under the head of "superstitious uses," and is consequently illegal and void, was a decision which did not strain the existing law, and was not an innovation upon the decisions of former Judges, but that it was in entire unison with the previous authorities and with the statute law. That decision has not been departed from, but has been fully recognized down to the last reported case—a case which arose upon the construction to be placed upon the will of the celebrated musician, Dragonetti, and which was decided a few years since by Vice-Chancellor Kindersley, who stated that the decision of Lord Cottenham left no doubt whatever as to the state of the law upon the subject, down to the passing of the Act of the 2nd & 3rd William IV. I trust, therefore, that we shall hear of no further doubts upon that head. I come now to consider what the Committee has already decided. And, in the first place, I cannot help thinking it will be seen that the decision to which the Committee arrived has given to Roman Catholic charities a considerable advantage when compared with other charities. For upon a division on the question whether gifts for Roman Catholic purposes were to be exempt from the obligation which the law imposes in respect of all other charitable gifts—namely, that the founder of a charity should have survived the gift for the space of twelve months—the Committee decided that that provision should not remain in force so far as Roman Catholic charities were concerned. I was unable myself to see the reason of that distinction, and I spoke and voted against it, but it was carried by a majority, and whilst we are considering the Bill in Committee, we are bound to acquiesce in I that determination. The Committee has evinced a disposition to give another considerable benefit to Roman Catholic charities. For whereas, as was pointed out by my hon. and learned Friend the Attorney General, in all other cases where that which 831 is legal is inseparably connected with that which is illegal, the whole becomes void, and the property lapses to the heir or next of kin of the founder, or in some instances to the residuary legatee; notwithstanding that rule, which is also applicable to the cases of charities, it appeared to be the opinion of a large majority of the Committee that, in respect of Roman Catholic charities, although there might be a portion which was good and a portion which was void by reason of the gift being subject to the rule against superstitious uses, yet the gift should not, in the case of a Roman Catholic charity, be void, and that there shall not be a lapse in favour of the heir or next of kin. I am not very wrong, therefore, in saying that the decision of the Committee has gone a long way in straining the existing law in favour of Roman Catholic charities; and, if this be BO, that it is not unreasonable to ask for something on the other side. Well, what is now asked on the other side? And what is the point at issue in these two clauses? In the first place, it is required, and in this the Committee has acquiesced, that instead of their being as heretofore two or three different sets of deeds, one or other of which is to be produced as occasion requires and the rest to be concealed, there shall in future be publicity with regard to such charities as with respect to all others, and that the governing deed shall be enrolled. That was adopted by the Committee. But the next question that arises, and it only arises in cases where, according to the existing law, there is something illegal, and therefore void; the real question now at issue is this—in such cases where there is something that by law is illegal and void but which by the construction the Committee wishes to put upon Roman Catholic charities shall in future be valid, by whom is the charity to be regulated hereafter, and in whose hands is the jurisdiction to be placed which is for the first time to render that legal which would otherwise be illegal and void. I hold in my hand the Bill as originally introduced by its promoters, and the Committee will bear in mind that the first clause in the Bill proceeds thus:—
No use, trust, gift, foundation, or disposition of real or personal estate for any charitable purpose relating to or connected with the Roman Catholic religion shall, by reason of any trust, condition, or request for procuring prayers for the soul of the donor or any person, or by reason of any trust, condition, or request in conformity with the doctrine, discipline, canons, laws, and usages of the Roman Catholic Church attached thereto, be 832 or be deemed to be superstitious, unlawful, or void.I do not wish to review or repeat any portion of the discussion which took place on a former occasion with respect to that clause. I will only observe that it was felt to be so contrary to established law and to the feeling of the Committee, that my hon. and learned Friend the Attorney General, with his usual fairness and candour—at once agreed to withdraw it, and undertook to prepare another which should be a fair expression of what was his intention, and which intention was acquiesced in by a majority of the Committee, and at the same time should not be open to the serious objections which were made to the clause so framed and forming part of the Bill. Accordingly, he made the attempt, and we have the clause in the shape in which it appears on the paper, with the Amendment of which the right hon. Gentleman the Member for Kilmarnock (Mr. Bouverie) has given notice. But if my hon. and learned Friend the Attorney General had not been labouring with insuperable difficulties, such a master of language as he is would not have failed so completely to express in the clause the intention which he clearly enunciated to this Committee. Sir, I undertake to show that this clause, as framed by my hon. and learned Friend is one that cannot be put into practice, and that it will be productive of most injurious effects, whether you consider it in reference to the position of the trustees, or the benefit of the charity, or the general public interest. The question which we are discussing only arises where there is a gift which is partially void by reason of being attended with some illegality. What does the Attorney General's clause propose to do? It says:—That no gift or disposition made or to be made for any legal charitable purpose connected with the Roman Catholic religion shall be, either as to the whole or any part, unlawful or void by reason of any purpose, request, or direction, which may be deemed in law superstitious or unlawful, being made part of or united with such gift or disposition, but the whole of the property comprised in such gift or disposition shall be applied exclusively for such legal charitable purpose.Let me state to the Committee what I conceive to be the insuperable practical difficulty in the way of adopting such a clause as this; and I will do so by means of an illustration. I will suppose a man to give £50,000 for charitable purposes; that £10,000 of it was to be applied to a small 833 charity for which that sum would ho an ample endowment, and sufficient to exhaust all its purposes; and that the remaining £40,000 was to be applied to purposes which came under the head "superstitious uses." According to this clause, without the possibility of intervention on the part of any tribunal, the trustees would be obliged to apply the whole £50,000 exclusively for the legal charitable purpose; notwithstanding that the testator, who of course was the best judge, had bequeathed only £10,000 for that object. To that the trustees would be bound, without the possibility of appeal, because it had been settled by statutable authority that they were to apply the remaining £40,C00 exclusively to that legal charitable purpose. Now that is an obvious and palpable difficulty, and I think it shows that the clause in its present shape cannot by any possibility be adopted. Independently of that, there are other objections on principle to this clause. These may be considered, first, as to the position of the trustees of the charity; secondly, as to the benefit of the charity; and thirdly, as regards the public interest. First, then, with respect to the position of the trustees: as I observed on a former occasion, I am most anxious to abstain from saying anything that is calculated to excite religious dissension or animosity; but as, on the one hand, we are bound to consider what is the existing law on the subject, so on the other we cannot shut our eyes to what is the existing state of facts upon which these questions arise. And bear in mind that the question only arises when you have some gift which according to law is illegal and void, as in the case of "West v. Shuttleworth," and some others of a similar description. We know, or those who are familiar with these cases know, as well as those who have read the Reports of the Committees of this House on the law of mortmain in the years 1844, 1851, and 1852, in what manner these charities are originally established. They know that it is a common practice for Roman Catholic gentlemen, when on their death-beds, to consider it to be a proper and right thing to enter into an arrangement with a Roman Catholic priest for making a settlement of property in order to procure masses to be said for their souls after their decease. Something in the nature of an arrangement is entered into, to which the Roman Catholic Bishop is frequently a party; and he and the 834 priest are usually made trustees for carrying into effect an arrangement to the making of which they had been instrumental themselves. Now, if you put into the hands of the trustees the power of deciding upon and administering such a trust, in what a painful position you put men of character when you ask this bishop and priest, first, to decide what is legal in the gift and what illegal, what is superstitious and therefore void, and then upon their own authority to depart from the will of the testator and the arrangement to which they had been parties. You thus impose upon them the doing of one of two very painful things either departing from the arrangement and doing that which is contrary to the wishes of the testator, or doing that which would he decidedly illegal. The clause, as it stands, is entirely opposed to the principle laid down by Mr. Justice Bayley, in that judgment from which I cited a passage during the last debate on this subject. Then observe, in the next place, what will be its operation upon the charities themselves. If, as soon as a gift of this sort has been made, it should be incumbent on the trustees to make application to the Charity Commissioners or the Court of Chancery for the settlement of a proper scheme for the disposition of the property, expense might be avoided at the outset and the whole thing placed at once on a proper footing; but if you allow the matter to go on in this way—if by this first clause you sanction the trustees themselves, without the intervention of any other authority being judges of the matter, and if by the 5th Clause you give an apparent validity to usage, you will necessarily at some future time involve the trust estate itself in serious litigation, the expense of which will be enhanced by inquiry into previous usage; whereas, if you make it obligatory on the trustees in the first instance to go to the Charity Commissioners or the Court of Chancery, the charity itself will be relieved of those subsequent expenses, and will be established at once on a permanent and proper basis. I know I may be told that to go to the Charity Commissioners or the Court of Chancery is to encourage litigation and necessary expense; but if, immediately that a charity is established, such an application is made, as under the clause which I shall propose would be made, then no such expense need be incurred at all. Because, in the first place, an application to the Charity Commissioners may be made by an ordinary letter which any 835 man of common understanding who was acquainted with the facts might write. He states his case to the Commissioners, and obtains from them an order which will sanction all his subsequent proceedings, and afford him a complete indemnity. On the other hand, if there be any matter of such doubt or difficulty as would render it improper for the Commissioners to decide what ought to be done, then the intervention of the Court of Chancery would become necessary; but it is obvious that the sooner that intervention takes place, the less will he the expense and the Jess the animosity endangered thereby. All that you will have to ascertain is, what is the intention of the original deed or will constituting the charity; there will be no question of usage, nor any vested interests whatever. When I call the attention of the Committee to the 2nd Clause in the Bill of last year, they will see that it does not cast the estate into Chancery, but requires no more than a simple application to a Judge in chambers; and I take upon myself to say from experience that such applications can be made without the expenditure of a single guinea in counsel's fees. I was myself a trustee in a case where circumstances had arisen which rendered it difficult to carry into execution the precise directions of the testator under whose will we acted. Under these circumstances we directed our receiver to make an application to the Master of the Rolls, as one of the Judges of the Court of Chancery, with an intimation that we wished to see him in chambers. Our application was received, and assented to. We went to his Honour's room, sat round the table with him, stated the difficulty we were in, and in a short time, without the employment of counsel, and without any material expense, we obtained an order under which the charity has been regulated and administered ever since. So that, if you regard the interest of the charity itself, it is for its benefit that the matter should be settled conclusively by the proper authority as speedily as possible. This brings me to the third objection to the clause proposed by my hon. and learned Friend, the Attorney General—that is, as it concerns the public interest, which is mainly regarded in this light-that it is certainly for the public interest that, with reference to property in England and English charities, there should he no foreign jurisdiction or foreign ecclesiastics who should have any right or power or 836 possibility of interference. But according to this clause, as it is now drawn, that interference is not only possible but extremely probable; and I think I can show that this is not an imaginary danger, for any one who reads the Reports of the Committee on Mortmain, and the evidence upon which those Reports are founded, will see that cases of that sort have occurred. I am unwilling to occupy the time of the Committee; but I should like to refer them for a moment to the evidence of Mr. Riddell, himself a Roman Catholic, and fully conversant with these matters. At page 42 of the Evidence before the Mortmain Committee of 1851, he points out the difficulties that had arisen in a case in which his brother was concerned, and says:—The district was afterwards divided. There was another bishop appointed, and that bishop in a very long correspondence took several objections to Mr. Brigham holding the living. He afterwards referred the question to the authorities at Rome, the Propaganda. The authorities at Rome took upon themselves to adjudicate upon the question of a right of nomination. My brother acted upon my advice, and denied the authority of the Roman Courts to adjudicate upon a temporal matter in this country. Mr. Brigham was afterwards served by that bishop with a letter containing an extract from a decree of the Court of Propaganda in Rome, and he proceeded upon that decree to remove the faculties and to forbid him to say mass within the district, and visited him with all the spiritual censures in his power.Subsequently, at page 52 of the same Report, and on the same subject, he is asked:—Do you recollect any other case in which there has been a reference to the Propaganda at Rome, with respect to a temporal right in this country?And he answers:—There was a case of which I can only speak from report, the case of Sir Charles Tempest. He built a Roman Catholic Church at Skipton, in Yorkshire, and he nominated, I believe, the same person to whom I have alluded, Mr. Boyle. The bishop in that case claimed the nomination of the priest. Sir Charles Tempest being an influential man among Roman Catholics, appealed to Rome, and the controversy ended by his nominee being placed in possession.I ask, then, if that is not merely the possible but almost the inevitable result of leaving such trustees in the position of having to decide the matter for themselves, and not compelling them to do what all other trustees are obliged to do—namely, to apply to an English tribunal to settle the mode in which a charity which I assume is accompanied by something that 837 makes it illegal is to be rendered legal and afterwards conducted and carried on. Is there anything unreasonable in that? It may be said that that is what is intended. If so, then I ask upon what reasonable grounds the suggestion which has been made by myself on previous occasions can be objected to? That suggestion was made, I believe, with the concurrence of almost all of those who, on this side of the House, have objected to particular portions of this Bill. Certainly it was made with the concurrence of my hon. Friends the Members for North Warwickshire; and it would, I think, be a satisfactory settlement of this question. That is to say, that instead of the 1st Clause, as it stands in the printed paper, or as it has been proposed by my hon. and learned Friend the Attorney General, the 2nd Clause of the Bill of last year, which was brought in by the right hon. Baronet the Secretary of State for the Home Department, and which was considered and prepared with his usual care and accuracy, shall be adopted. Now, what does that clause do? In the first place, it does not in the least degree impugn the decision to which I have adverted, and which gives such peculiar and exceptional advantages to Roman Catholic charities, by releasing them from the obligations imposed upon all other charities, that the founder of a charity should have survived the gift twelve months; neither does it impugn the second advantage of making gifts which are illegal and absolutely void, permanently legal and valid. The clause to which I refer says:—No existing or future gift or disposition of real or personal estate upon any lawful charitable trust for the exclusive benefit of persons professing the Roman Catholic religion shall be invalidated by reason only that the same estate has been or shall be also subjected to any trust or provision deemed to be superstitious, or otherwise prohibited by the laws affecting persons professing the same religion, but in every such case it shall be lawful for the High Court of Chancery, or any Judge thereof sitting at chambers, in exercise of the jurisdiction created by the Charitable Trusts Act, 1853, upon the application of her Majesty's Attorney General, or of any person authorized for this purpose by the certificate of the Board of Charity Commissioners for England and Wales, or for the said Board upon the application of the person or persons acting in the administration of such real or personal estate, or of a majority of such persons, to apportion the same estate, or the annual income or benefit thereof, so that a proportion thereof, to be fixed by such Court or Judge, or by the said Board, as the case may require, may be exclusively subject to the lawful charitable trusts declared by the donor or settlor, and that the residue thereof may become subject to such lawful 838 charitable trusts for the benefit of persons professing the Roman Catholic religion, to take effect in lieu of such superstitious or prohibited trusts as the said Court or Judge, or the said Board, may consider under the circumstances to be most just; and also that it shall be lawful for the Court or Judge, or Board, making any such apportionment by the same or any other order or orders to establish any scheme for giving effect thereto, and to appoint trustees for the administration of the several portions of such real and personal estate, according to the trusts established of the same proportions respectively, and to vest the estate to be so apportioned in the trustees so to be appointed.Now, Sir, I say that if there be no intention on the part of those who promote this Bill either to make the trustees themselves judges of the matter, or to call in the interference of any foreign ecclesiastics or foreign jurisdiction; if they are really and sincerely desirous to place these Roman Catholic Charities under the same jurisdiction as that to which all other charities are subject; if that be their real and sincere desire, they can make no reasonable objection to such a clause as that. The only one I have yet heard is, that there is some reference made in it to superstitious uses and trusts; and so there is also in the clause proposed by my hon. and learned Friend the Attorney General; so there is, too, in the clause, originally proposed; and so there must be in every or any clause that affects to give Roman Catholic charities relief from the existing state of the law. That law states certain things to be illegal because they are superstitious. The very object of the Bill is to relieve them from that state of the law; and how can you relieve them from the existing rule of law without alluding to that state of things, or to that rule of law? If the words are objected to, and they like to insert others to the same effect; or if they would like to allude to the decision in the case of "West.v. Shuttleworth," or any other analogous one, I shall not object. But the question is, whether Roman Catholic Charities are to be placed under the same jurisdiction as other charities, or left in the hands of trustees who possibly or probably, as I have shown from evidence, may refer to a foreign authority instead of to an English tribunal to decide what shall be the future administration of charitable property situated in the Kingdom of England. The question row really at issue has been brought into a very narrow compass; for the proposal made to the Committee for adding the clause of my hon. Friend the Member for North Warwickshire (Mr. Newdegate) to 839 the Bill will, I understand, meet with no objection. Then, I say, that the 1st Clause as it originally stood in the Bill should be struck out, and that, in lieu of the amended clause suggested by my hon. and learned Friend the Attorney General, the 2nd Clause in the Bill of last year of the right hon. Baronet the Secretary for the Home Department should be adopted. When these two things are done, I for my part shall be willing to withdraw any further opposition to this 5th Clause; because I think that the sanctioning of usage is removed from all danger when the usage is to be construed by competent and legal authority. But if you leave the matter in the hands of trustees, or allow it to be referred to a foreign jurisdiction, then it would be highly dangerous for the 5th Clause to pass. Unless, therefore, this is done, I must continue my opposition to the clause; but as I understand that there is no objection to the clause proposed by my hon. Friend the Member for North Warwickshire, and as the first Clause in the original Bill was abandoned after full discussion, the real question now at issue is, which of the two clauses, the second in the Bill of last year, or that proposed by my hon. and learned Friend the Attorney General, is best calculated to carry into effect the object which the Committee has in view. If the clause in the Bill of last year be adopted, the opposition, so far as I am concerned, would fall to the ground and the whole matter will be settled. I ask the Committee to contrast the two clauses, and to say whether the clause proposed by my hon. and learned Friend is not open to the practical objection to which I have referred; that where a gift of £50,000 is made, £10,000 of which is to go to a small charity for which it is an ample endowment, and the remaining £40,000 to say masses for the soul of the donor,—according to the clause of my hon. and learned Friend, the whole £50,000 must inevitably, without any discretion on the part of the trustees, the Board of Charity Commissioners, or the Court of Chancery, be applied to that for which £10,000 is amply sufficient. That, in my view, is an insuperable and practical difficulty in the way of the amended clause proposed by my hon. and learned Friend. I say also, that whether you consider the position of the trustees, or the benefit of these charities themselves, or the public interest which is involved in the establishment of proper English tribunals, to the exclusion of all foreign or ecclesiastical 840 authorities with reference to the decision of questions relating to property in this country; when you look at that clause in connection with any one or all of these points, you must come to the conclusion that the 2nd Clause in the Bill of last year perfectly meets your object, whilst the clause of my hon. and learned Friend the Attorney General would utterly fail to carry it into effect. Under the existing circumstances I must persist in my opposition to the 5th Clause; but if the clause proposed by my hon. Friend the Member for North Warwickshire is added to the Bill, and the 2nd Clause of the Bill of last year is substituted for the 5th Clause of the Bill of this year, I shall withdraw my opposition. Of course there will be some formal objection to postponing the 5th Clause until after the Amendment I have suggested has been made, hut perhaps we might reject it for the time upon the understanding that it shall be again proposed after the 1st Clause has been agreed upon and settled.
§ Clause negatived.
§ SIR GEORGE BOWYERmoved that the 1st clause as it originally stood in the Bill should be adopted, with the addition of the Amendment proposed by the right hon. Member for Kilmarnock (Mr. Bouverie). He thought that so amended the clause would not be open to the objections urged against the Bill by the hon. and learned Gentleman. The Amendment of the right hon. Member for Kilmarnock was, "that no such last mentioned trust, condition, or request, shall in any other respect be rendered valid or legal, or invalid or illegal, or be otherwise affected by this Act." The hon. and learned Gentleman (Mr. Selwyn) was in error in supposing that the effect of the clause would be to compel a reference to foreign tribunals. The clause would not render the unlawful usages of the Roman Catholic Church the test of the validity of any charity, but it merely provided that whatever those usages might be they would not invalidate any charity. The clause would remove from the operation of the law those peculiar circumstances connected with the Roman Catholic Church which now rendered any charity invalid, but it did not render superstitious usages valid.
MR. HENLEYasked why they should not have proceeded with the clauses which 841 had been given notice of. The Attorney General had given notice of a clause as a substitute for the 1st Clause, which the Committee had rejected; but now they were asked to agree to the original clause, with an Amendment proposed by the right hon. Member for Kilmarnock.
SIR GEORGE LEWISthought the course proposed was regular. The hon. Baronet who had charge of the Bill was moving the re-instatement of a clause.
MR. HENLEYsaid, that the Amendment of the right hon. Gentleman the Member for Kilmarnock was one to the clause proposed by the Attorney General.
§ MR. ADDERLEYcontended that the clause given notice of by the Attorney General ought to have been put first; but looking at the clause now proposed by the hon. and learned Member for Dundalk, he contended that it would clearly have the effect of making valid superstitious uses. If the object of the hon. Baron was to render superstitious uses valid, then the clause which he had moved would completely effect his object.
§ SIR GEORGE BOWYERsaid, that this was not the case The clause did not render the superstitious use valid; it merely said that the charity should not be void by reason of its being given to a superstitious use. Nothing connected with the Roman Catholic Church which was of at present legal would be made legal by this has; but its provisions would prevent a c1arity from being invalid, because it might be accompanied with a superstitious use—possibly some small and trifling matter.
§ MR. ADDERLEYsaid, it was no matter whether the superstitious use was small or large. That was not the question. The objection to the clause was that if it passer a superstitious use would be rendered valid if it was connected' with a bequest for a legal charity. If that would not be the effect of the clause, why had the Attorney General thought it necessary to propose a clause to supersede Clause 1, as proposed by the hon. Baronet?
§ SIR GEORGE BOWYERrepeated that the effect of the clause would not be to render valid superstitious uses in connection with any charity.
§ MR. MALINSsaid, that taking the clause in connection with the proviso of the right hon. Gentleman the Member for Kilmarnock, he did not think it would legalize a superstitious use, as his right hon. Friend (Mr. Adderley) supposed. It would, however, leave the law still in an unsatisfactory 842 state; and would not meet the objections of his hon. and learned Friend the Member for the University of Cambridge (Mr. Selwyn), which had very considerable force. Let them take the case suggested by his hon. and learned Friend, that of a man leaving £50,000, of which £40,000 were for superstitious, and £10,000 for legal was. What was to he done with the £40,000? The clause and proviso would not afford a satisfactory solution of the question. They were imperfect, and did not meet the case of a combination of valid and invalid trusts. The Committee ought to see that the Bill met every case. In its present shape it did not. The Roman Catholic would have a privilege not enjoyed by Protestant—that of separating a valid from an invalid bequest. Ought there not, then, to be some provision for disposing of the invalid bequest? It might be answered, "Give it to the valid." But the valid use might not be sufficient to exhaust the whole sum. What would his hon. and learned Friend (Sir George Bowyer) propose in that case? [Sir GEORGE BOWYER: Extend the scheme.] But there was nothing about extending the scheme in the present Bill, even if such an arrangement would be satisfactory, lie could see no objection to the clause of last year, which would bring all disputes under the notice of the Charity Commissioners and the Court of Chancery.
§ SIR GEORGE BOWYERThe clause merely provided that a valid charity should not become invalid in consequence of being accompanied by an invalid use. Apportionment was unnecessary; the whole sum would go to the legal purposes of the charity. If a man left £10,000 for a charity, and in connection with it £20,000 for masses for his soul, the £10,000 left for the charity would be valid; but the £20,000 left for masses would be invalid and go to the next of kin. If more money were left for a charity than was necessary, the sum would be dealt with by the Charity Commissioners just in the same way as was now done in the case of Protestant churches and schools. The clause was one which would give satisfaction to the entire Roman Catholic body; and that was a circumstance which ought to have some weight with the Committee.
MR. HENLEYcould not read the clause in any other way than one that would make a superstitious use lawful. There was in large and general terms a statement that a bequest should not be rendered unlawful by 843 reason of any gift for superstitious uses. It was said that that was cured by the proviso. He could not think so. The proviso only went the length of saying that the bequest should not, in any other respect than that defined by the clause, be deemed illegal. But if the clause made a superstitious use legal, the proviso did not undo that:—it seemed to him to be mere surplusage, and to have no effect whatever. His opinion was, that the clause and proviso would make "confusion worse confounded."
§ MR. MONSELLthought a clause might be drawn up, composed of the first part of the Attorney General's clause, and the proposal made by the hon. and learned Member for the University of Cambridge, so that the object the latter had in view might be carried out.
SIR GEORGE LEWIShoped they would be able to come to a satisfactory settlement of this question. He did not think that the clause moved by the hon. and learned Baronet (Sir George Bowyer) would, as some Gentlemen seemed to think, legalize superstitious uses; it would only provide that a gift for a legal object should not be tainted by its association with an illegal object. But it appeared to him that the defect of the clause was, that it did not provide for the disposal of the funds left for an invalid trust. The Committee might take one of three courses. They might adopt the clause proposed by the hon. and learned Baronet (Sir George Bowyer); or that proposed by the Attorney-General; or the clause in the Bill of last year, as proposed by the hon. and learned Member for the University of Cambridge. Of these three alterations he was prepared to accept the clause of last year, as suggested by the hon. and learned Member (Mr. Selwyn), thinking that the reference to the Charity Commissioners was the best suggestion that had been made; and if no other Member proposed its adoption he would be prepared to do so himself.
§ SIR GEORGE BOWYERwould, if he was obliged to give up his own clause, prefer that of the Attorney General to the second clause of the Bill of last year.
§ Clause negatived.
SIR GEORGE LEWISthen proposed to insert a clause similar to the second clause of the Bill of last year, which would then be the first clause of the present Bill.
§ Clause agreed to.
§ Clause 5, amended to conform to the 1st Clause, agreed to.
844§ MR. NEWDEGATEproposed the following clause:—
Provided always, and be it further enacted, that nothing in this Act contained shall be taken to repeal or in any way alter any provisions of an Act passed in the 10th year of his late Majesty King George the Fourth, intituled 'An Act for the Relief of his Majesty's Roman Catholic Subjects, respecting the Suppression or Prohibition of the Religious Orders or Societies of the Church of Rome bound by Monastic or Religious Vows.'The hon. Member said he thought this clause was essential, and quite consistent with the general legislation of this country. Its principle seemed to be conceded by the Government of France also, as appeared from a statement of the Procureur General. Indeed, he knew no country in Europe in which those religious orders were allowed to establish themselves and to aggregate enormous properties without some legal provisions for their regulation, and to guard against foreign interference. He was glad to learn that the clause would not be objected to.
§ Clause agreed to; Bill passed through Committee.
§ House resumed; Bill reported; as amended, to be considered on Thursday, and to be printed [Bill 312].