HC Deb 10 July 1860 vol 159 cc1689-95

Order for Committee read. House in Committee.

Clause 3 (Certain Deeds not to be void if enrolled within twelve months from passing of Act).

MR. ADDERLEY

moved the insertion in the clause after the words "void or voidable" of the words "except as against the donor or settlor, or his representatives." The provision made by the clause as it stood was that no deed or assurance connected with the Roman Catholic religion made subsequently to the 9th of George II., should be "void or voidable" by reason of the same not having been perfected or enrolled if twelve months after the passing of the present Act it should have been enrolled in the Court of Chancery. The object was to compel enrolment. The Roman Catholics, however, would rather not have the deeds enrolled, so that they might not be brought under the supervision of the Charity Commissioners. If the clause were allowed to remain in its present state the charities would be made valid without any control.

THE ATTORNEY GENERAL FOR IRELAND

was afraid the Amendment would have the effect of defeating the object which the Bill was intended to realize, as it would enable the "donor, settlor, or his representatives" to take advantage either of the provision against superstitious uses, or of the non-enrolment of those Roman Catholic charities which were not enrolled, simply because at the time of the grant they were illegal. It was not intended by the measure to place the Roman Catholics on any better footing with respect to their charities than ordinary dissenters from the Established Church. The object was to relieve them from certain disabilities imposed upon them by certain statutes which the Legislature had repealed. Before 1832 all provisions for Roman Catholic charities were void by law, and, in consequence of that, the deeds relating to them were not enrolled. By the Act of 1832 the charities were rendered valid, but, subsequently to that, a decision was given by the Master of the Rolls that any charity containing bequests for masses for the souls of deceased persons were superstitious, within the meaning of the Act of Edward VI., and were consequently void. That decision had never been acquiesced in. It had been very much questioned by recent decisions of the present Master of the Rolls, and was not in accordance with the law in Ireland. The object of the Bill, therefore, was simply to place Roman Catholics under the general law, and the Amendment of the right hon. Gentleman would probably have the effect of rendering that object nugatory. He trusted the Amendment would be withdrawn.

MR. ADDERLEY

said, he did not think that the Amendment would have the effect supposed. The clause under considera- tion was simply a provision with reference to Roman Catholic charities which had come into existence between the passing of the mortmain Act of George II. and the present time. The enrolment would be nugatory, and the simplest way would be to leave the trusts unenrolled, and to allow them to be valid without enrolment, except as against the heirs at law of the donors.

MR. LOWE

said, he thought the right hon. Gentleman had not quite understood the effect of the Amendment. Hitherto all Roman Catholic charities were void if not enrolled. By this clause, however, Roman Catholic charities made since Sir J. Jekyll's Act, in the reign of George II., would not be void against the donors for not being enrolled, in case they were enrolled within twelve months after the passing of the Act. The right hon. Gentleman's Amendment would virtually enact that, even although they might be enrolled within twelve months after the Act, still they should be void against the donors for not being enrolled under Sir J. Jekyll's Act. Such an Amendment would defeat the purpose of the Act; and he hoped the House would not agree to it.

MR. ADDERLEY

observed that the right hon. Gentleman was wholly mistaken as to the effect of his Amendment.

MR. NEWDEGATE

said, he believed that the Attorney General intended by the first clause to provide against the difficulty which had been suggested. There might be and, in fact, there were Roman Catholic charities which were applied contrary to the wishes of the donor, and the question was, would they give the donor or his representatives the right to have these abuses corrected. There was a case, for instance, where a Roman Catholic priest had built a chapel, but this charity had, by the exercise of the spiritual authority of his superiors been entirely defeated, and his person had virtually been deprived of the benefits of his own charity, and of his means of livelihood during his life time, because he refused to transfer it to trustees, to whom he objected. If they had any regard for religious freedom they would give power to correct such abuses. He thought that if there was any danger of the representatives of the donors, who were not Roman Catholics, seeking unfairly to vitiate the trust, that might be prevented by words being introduced giving certain powers to the Charity Commissioners and to the Court of Chancery. Such a provision was introduced into the Bill of last year. He certainly would vote for the Amendment giving to the representatives of the donors of these trusts power to have them readjusted where they had been altered, perverted, or needed amendment to render them conformable to English law, subject to the control he had mentioned. This was the substance of the Bill of last Session that it would be introduced into the measure now before the House.

MR. PULLER

said, the object of the measure was to place the Roman Catholics on the same ground as other Dissenters. He understood the right hon. Gentleman (Mr. Adderley) to agree to that; but now that it was proposed to bring these charities, which had been illegal, within the pale of the law, it was hard to make the trustees liable to the donor or his representatives. Whilst under repression the Catholics had had recourse to concealment, and he thought that there should he no power to revoke the trust because there had been no enrolment.

MR. NEWDEGATE

remarked that the evidence before the Mortmain Committee proved that there had been continual misappropriation of these trusts, and, therefore, it was most important to give power to the original donors and their representatives to deal with this state of things, subject to proper control.

MR. SELWYN

said, he believed that the difficulty arose entirely from the postponement of the first clause. If that clause were framed as the Committee clearly intended, the third clause would do in its present shape. He would, therefore, suggest that his right hon. Friend should postpone his Amendment until after the first clause had been brought up again. The House had properly determined that there should be some legislation on these charities, so that the practice of having three or four sets of deeds, to be produced according to circumstances, might be put an end to. The difficulty, would, perhaps, best be obviated by his moving that the first clause be rejected, and that the second clause of the Bill of 1859, introduced by the present Home Secretary, should be substituted for the first clause. If that were substituted his right hon. Friend's Amendment would be unnecessary.

MR. ADDERLEY

said, he would accede to the suggestion of his hon. and learned Friend, and would not press his Amendment.

MR. PULLER

said, he would move the omission of certain words in the clause, the effect of which would be to place Ro- man Catholics on precisely the same footing with Protestants as respected the statute of mortmain.

Amendment proposed, in line 15, to leave out the words "made, perfected, or."

SIR GEORGE LEWIS

submitted that the clause had been correctly drawn, and was calculated to meet the defect that existed in the Mortmain Act.

MR. SELWYN

said, he could see no reason why the Roman Catholic charities should be put upon a more advantageous position than those of the Church of England or any other charities, as the proposed Bill was calculated to do.

MR. LOWE

said, that if a man were required to obey a law he ought to receive some protection. The Roman Catholics were outlaws as regarded their charitable testamentary dispositions. The law gave them no protection. Was it, then, fair or just, when there was one provision of the law with which they could not comply, that they should be required to comply with any other provision?

MR. NEWDEGATE

said, the object of the House was not to place Roman Catholic charities in a better position than any other charities, but on a par with them, and the object would be fully attained by adopting the Amendment.

MR. WHALLEY

complained of the course which the Government had pursued in reference to this Bill. The right hon. Gentleman the Home Secretary had last year pledged himself to introduce a measure, but it was not now introduced on Government responsibility. He (Mr. Whalley) thought the better course would be that this Bill should be withdrawn and a new Bill introduced next Session by the Government.

SIR GEORGE LEWIS

said, when the Roman Catholic charities were created, the Mortmain Act being then in force, there were two principal provisions of it under which any such deed would have fallen. One was the provision that it should be executed at least a year prior to the death of the testator, and the other was the enrolment with two witnesses. The object of the clause was to cure the defect of non-enrolment. It had been urged in curing that defect they ought not to cure the other. But what possible inducement was there to Roman Catholics to fulfil the one condition if they could not fulfil both? Unless both were fulfilled the deed would be invalid. The two conditions could not be severed, and if they cured the one defect, it was equally just that they should cure the other.

MR. ROLT

denied that the reasoning of the right hon. Gentleman applied. Of the two conditions he mentioned one had reference to the mode of executing the deed creating the charity—the other to the question of capacity to do the thing at all. The prohibition in the Mortmain Act did not apply to Roman Catholics especially, but to all "languishing and dying persons." Why, therefore, should Roman Catholic charities because they were to be relieved from the results of the non-fulfilment of the one condition be relieved with regard to the other, the non-fulfilment of which amounted in any case to a positive incapacity?

THE SOLICITOR GENERAL

contended that the reasoning of the Home Secretary was perfectly correct, because, as the law stood, under the Act of George II. it would be perfectly useless for a Roman Catholic to comply with all the other conditions, if the one condition of enrolment was not complied with. There was therefore no inducement to the Roman Catholic to comply with the condition of making his will at the legal period.

MR. ADDERLEY

observed that the Mortmain Act required several conditions to make a deed valid, and he did not think that enrolment should be permitted to cover all invalidities.

MR. NEWDEGATE

said, the necessity for some limitation was shown by the experience of all Roman Catholic countries, where, if gifts from "languishing and dying persons" were permitted without restraint, a great portion of the land became lost for all public purposes.

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided:—Ayes 71 Noes 49: Majority 22.

MR. HENLEY

said, the House had been sitting thirteen hours, and was to meet again at twelve o'clock. It was, moreover, quite clear that the Bill could not go through Committee without the presence of the Attorney General to bring up the first clause, and it was only reasonable that they should now go home. He would, therefore, move that the Chairman report progress.

SIR GEORGE LEWIS

said, the right hon. Gentleman's Motion was a reasonable one. The only question was whether they might not finish this clause before progress was reported.

Motion made, and Question put, "That the Chairman do report Progress."

The Committee divided:—Ayes 37; Noes 67:Majority 30.

An Amendment was made in the clause. Clause agreed to.

House resumed. Committee report Progress; to sit again on Friday.

House adjourned at a quarter before Two o'clock.