HC Deb 21 June 1860 vol 159 cc820-34

Order read, for resuming Adjourned Debate on Question (18th June), "That the Bill be now taken into consideration."

Question again proposed.

Debate resumed.

MR. NEWDEGATE

said, he wished to ask the right hon. Gentleman, the Secretary of State for the Home Departments if he had any information as to the fulfilment of an understanding made the other night that the Bill should not be proceeded with, until there was a fair opportunity for a full discussion, and until the Attorney General was present to give explanations as to the various Amendments introduced into the Bill. It was hardly possible to proceed with a subject of such magnitude at that hour; but he should wish to know from the Attorney General when the opportunity would be afforded?

THE ATTORNEY GENERAL

said, he was happy to have an opportunity of stating to the House the nature of the measure before them, and the Amendments which we had thought right to make in it. In order to render the subject intelligible he might remind the House that when the general Charity Bill was passed in 1853, giving the Commissioners a summary power, of making inquiry into the administration of charitable estates, it was thought wise to exempt the Roman Catholic charities from the operation of that statute. The reason was that anterior to the passing of the statute of William IV., Roman Catholic charities were, from the then state of the law, generally invalid, and it was accordingly requisite for the Roman Catholics, in order to give effect to any charity connected with their religion, to make secret and clandestine arrangements for that purpose, and to rely upon the honour of individuals, to whom they committed the trust, in order not to infringe the Statute of Mortmain. Therefore, it was not thought just that these charities should be subjected to the inquisition of the Commissioners. It was, however, thought requisite that some measure should be introduced for the purpose of giving an opportunity to Roman Catholics of placing their charities on the same footing with those of Protestant Dissenters, and so to arrange them as to admit of their being brought within the operation of the general law. A Bill was accordingly introduced for that purpose by the hon. and learned Member for Dundalk (Mr. Bowyer). Upon examining that Bill it appeared to him (the Attorney General) necessary that some alterations and additions should he made, and he proposed now to explain the effect and operation of the various provisions of the Bill in its present form. The first clause was one which required the careful attention of the House. The enactment of the first section was that a good charitable use should not he tainted and rendered invalid by its being connected with a superstitious use. He considered that those uses which were pronounced by the statute of Edward VI. to be superstitious still retained that character, and were consequently illegal and void. The present state of the law was, that if there was a gift to a good charity, but so mixed up with a superstitious use that what was given to the one could not be distinguished from that which was given to the other —if the superstitious were inseparably connected with the valid use, the result was that the superstitious use voided the good charity, and the whole of the property became forfeited to the Crown. But that seemed to be unreasonable and unjust. Therefore the object of the first clause in the Bill was to alter that state of the law, and to render the good use valid and free from objection, notwithstanding its connection with the superstitious use. But no validity was given to the superstitious use, which remained had as before. It should he carefully observed that the first section saved only gifts for charities relating to the Roman Catholic religion, and that word "charity" was carefully explained by the interpretation clause to mean such charities only as would be perfectly good and valid under the General Charitable Act of 1853. The first section, therefore, might be read thus —"That no gift for any good and valid charity should be made void and invalid, simply by reason of there being some direction touching prayers for the dead, or observances of Roman Catholic ceremonies usual in the ordinary mode of performing Divine worship in the Roman Catholic Church." There was then no foundation for the apprehension which some hon. Members seemed to entertain that the effect of the measure would be to encourage and render valid superstitious uses. He was perfectly sure in his own mind that such an apprehension was totally without foundation. The second section had the effect of preserving Roman Catholic charities, with regard to their administration, prior to the 2nd and 3rd William IV., from any investigation in a court of justice, save only so far as there might have been any fraudulent misappropriation of property. The reason was that almost every Roman Catholic charity having been originally constituted by reason of the former state of the law, so as to produce a reprehensible state of things, it was not thought just to leave those charities exposed to legal proceedings when their condition had been produced solely by previous legislation. The third section imposed on all existing Roman Catholic charities which were constituted by deed the obligation of enrolling those deeds within a twelvemonth after the passing of the Act. By the Statute of Mortmain persons creating a charity by deed, which conveyed any real estate for the purposes of the charity, were com- pelled to enrol that deed, and, if not enrolled, it became null and void. Accordingly, the same provision was henceforth to be made applicable to Roman Catholic charities which were constituted by existing deeds, the object being to give them the power of publishing the nature of the charity, and an opportunity for investigation by the Commissioners, and in this way to make them generally amenable to the law. But the section had an additional provision. Many Roman Catholic charities not having been constituted, for reasons already stated, by deed, this section threw upon the trustees of the charity the obligation to verify by a statement in writing the mode of the administration of the charity during the last twenty years, and to enrol that declaration in lieu of the deed. The great object of this provision was to give notoriety to the constitution and present establishment, condition, and administration of all Roman Catholic charities. The 4th section merely threw upon the charity the expense of complying with the obligations of the measure. The 5th section was the interpretation clause. The 6th section introduced, with regard to Roman Catholic charities, a rule of law which had already been established by the case commonly known as Lady Hewley's case. In many religious charities there had been in the absence of a written settlement a great fluctuation in their administration, in consequence of the variance from time to time of religious tenets, and it was determined that where there had been a settled custom for a period of twenty years, that uniform administration for such a period should be accepted as the final manifestation and proof of the nature of the trust affecting the charity property. Accordingly, such a rule being more immediately required in the case of Roman Catholic charities for the reason already stated—that they were depending rather on the honour of the trustees than on any legal obligation, and were therefore necessarily subject to fluctuations in their administration—this enactment was introduced. The remaining section prevented the Act from having a retrospective operation. This was the sum total of the enactments contained in the Bill. The only alteration of law which might be considered as a relief extended to Roman Catholics was the taking away of that very unjust, and, as he thought, very severe enactment, which made the presence of any superstitious use sufficient to invalidate the gift with which it was connected, remembering always, that under that word superstitious use was included by the law things which were of daily occurrence in the ordinary exercise of Roman Catholic worship, such as the saying of prayers for the dead, and not only the performance of mass, but the ordinary burning of lights, candles, and so forth, all of which were still regarded as superstitious uses. To that extent the first section gave relief. The rest of the Bill was directed to the laudable purpose of bringing forth to light all existing Roman Catholic Charities, under the penalty of being made void if not duly brought to light and registered. They were all now to be brought under the ordinary jurisdiction of the Charity Commissioners, and were to be placed in that respect on the same footing and made subject to the same obligation, and if not brought under the Act, to incur the same penalties as at present affected other charities. That was the total of the Bill. It seemed to him to be a measure which it was desirable should he passed, on the ground that it was just to put these charities on a footing that would render them amenable to the general law, and that that should no longer continue in the anomalous position in which they at present stood. The principle was fully recognized by the House when they passed the Act of 1853; and he trusted the House would be of opinion that the object had been attained by the provisions of the Bill before them.

MR. NEWDEGATE

said, he rose to move an Amendment, when

MR. SPEAKER

said, the hon. Member had already spoken.

MR. NEWDEGATE

I rose on a question of order.

MR. SPEAKER

The hon. Member cannot again be heard. It was after I had put the question that the speech of the hon. Member was made.

MR. HENLEY

said, he would make the Motion which his hon. Friend had lost the opportunity of making. The statement of the Attorney General with regard to the operation of the first clause was so important that the Bill required serious consideration from the House, and he would, therefore, move that it be recommitted.

Amendment proposed, "To leave out the words 'now taken into consideration,' in order to add the word 'recommitted,'—instead thereof.

MR. BOWYER

said, he had no objection to the recommittal of the Bill, and would therefore second the Motion.

MR. NEWDEGATE

said, he wished to observe that a great number of hon. Members who took an interest in the matter had gone away upon the understanding that another day would be especially appointed for the recommittal of the Bill, at an hour when it was reasonable to expect a full attendance. Almost all the proceedings on the Bill had been taken behind the back of the House, and he trusted it would not be proceeded with in the absence of many hon. Members who desired to discuss the question.

SIR GEORGE LEWIS

said, he hoped that no obstruction would be offered to the House going into Committee. He did not know to whom the hon. Member alluded as being absent, but he (Mr. Newdegate) was present, and all would admit that on that question he was a host in himself.

Question, "That the words proposed to be left out stand part of the Question?"

Put, and negatived.

Word added.

Main Question, as amended, put, and agreed to.

Bill re-committed.

(In the Committee.)

Clause 1, (Roman Catholic Charities not to be avoided on account of certain trusts.)

MR. HENLEY

said, he wished to ask the Attorney General whether the words of the clause did not go somewhat further than he had stated. He understood the hon. and learned Gentleman to say that it only went to this—that any bequest which was for the purpose of procuring prayers for the souls of those who had departed, or any other religious ceremony, was not to be held to be superstitious. The words were "Any trust condition or request in conformity with the doctrine, discipline, canons, laws, or usages of the Roman Catholic Church." It seemed to him that that was setting up, by law, all the canons, all the discipline, and usage of the Romish Church wholesale.

THE ATTORNEY GENERAL

said, the true meaning of the clause was, that no gift for any valid or legal charitable purpose should be or deemed to be invalid or void, by reason of its having any trust, condition, or request for procuring prayers for the soul of the donor, or any trust, condition, or request in conformity with the doctrine, discipline, and so forth of the Roman Catholic Church attached thereto. No gift for any charitable purpose would fail of taking effect by reason of there being attached to it some direction connected with the Roman Catholic Church, which direction the law held to be superstitious. In Shelford's work on Mortmain, in the chapter on Superstitious Uses, there was a passage pointing out the state of the law, which he thought unjust, and which was intended to be remedied by this enactment. The state of the law seemed to be this: where a charitable use was intermixed with a superstitious use so that they could be distinguished, the King was entitled to so much only as was given for the superstitious use; but where the gifts to the good use and to the superstitious use were so mixed up together that nothing separate was limited to the good use, and nothing separate or distinct was limited to the superstitious use—in such cases the intermixture of the bad use with the good use infected the whole. The case in which that doctrine was applied was the case of a gift for a charity school, the bequest containing a provision that the priest who presided over it should sing masses for the soul of the founder, and perform some other Roman Catholic religious duties which the law held to be superstitious. It was held that it was impossible to determine how much money was given to the school and how much for the superstitious uses, and the whole was, therefore, bad. Surely that was not just, and that was the only state of things which this particular enactment was intended to remedy and redress. The clause enacted that no gift should be deemed invalid by reason of there being attached to it some direction which the law deemed superstitious. But the gift to the superstitious use would still remain invalid and void, and be forfeited to the Crown.

MR. ADDERLEY

said, if the clause did no more than the Attorney General said it did there could be no reasonable objection to it; but he suspected it went a great deal further. He wished to ask, Whether, if property were left for a good use in one part of the country, and a bad use in a distant place, both would not be legalized?

THE ATTORNEY GENERAL

said, the enactment would leave the superstitious use in a distant place still amenable to the law and absolutely void. The present state of the law, by reason of the identity of trust, made the whole thing bad. If one entire thing was given to a bad pur- pose and a good purpose, and no room was left to discriminate how much was intended to the bad, and how much to the good, the bad infected the whole, and the whole gift would be invalid. Surely that was wrong; and that was what the present Bill was intended to redress. Supposing a gift for the education of Roman Catholic children in Warwickshire, coupled with a gift for masses to be said, or an image of the Virgin to be erected in a chapel in Northumberland, the superstitious use itself would still continue to be wholly invalid, and would be amenable to the existing law. He admitted, with regard to a former Bill, that he had desired that whatever was given to a superstitious use should be applied in augmentation of the legal use. He should have desired to do that now, but he found it was not acceptable to the Roman Catholic Members. If they were content with the law relating to superstitious uses, and only desired to modify it, he (the Attorney General) had no right to force a general repeal upon them, permitting them to apply to a good charitable use what had been given to a bad.

MR. WALPOLE

remarked that if the Attorney General himself had drawn the clause under consideration, there would have been no discussion about it, for he might say that they all assented entirely to the proposition which his hon. and learned Friend had laid down. The difficulty arose, not from what he had said, but because the clause did not say what he had said. If his hon. and learned Friend would apply his mind to the subject, and so amend the clause as to carry into effect that laudable object which he had in view, he (Mr. Walpole) would undertake that there would be no further difficulty. The clause as it stood placed the Roman Catholic charities in a different position from other charities.

MR. NEWDEGATE

said, that he held in his hand an opinion from a legal authority for whom he had great respect; and this opinion confirmed what he himself thought, and this was, that the clause under discussion would give effect to endowments of Roman Catholic institutions of all kinds, provided that they were in conformity with the laws, canons, and usages of the Church of Rome. The Committee and the House would, therefore, if they passed the clause declare valid certain institutions which by the Act of 1829 were prohibited; and they would incorporate with the law of England the whole canon law of the Church of Rome. These were serious things to be done by a single clause. And who was to interpret the canon law of the Church of Rome; for they would be told, as the Courts of this country had been told, in several well-known cases, that they were incompetent to interpret the canon law of the Church of Rome; the Court of Chancery would thus be driven to accept as indisputable all such authoritative dicta as the Pope might think fit to enunciate, or which might be declared consistent with the canon law of Rome by those whom the Court of Rome might think fit to appoint, and according to those dicta to validate institutions that by law were illegal, for the exception as to superstitious uses would scarcely touch many of these Institutions, which were on other grounds illegal. He thought, therefore, that the Bill, by inference rather than by direct enactment, would contravene the great compact under which Roman Catholics were admitted to sit in that House. He warned the Committee not to adopt legislation directly in favour of the Jesuits and of other regular orders connected with the Church of Rome, who throughout Europe were the great originators of oppression, recognized and treated as such, and who had been deemed deserving of being expelled from every country in Europe. [An hon. MEMBER: Hear, hear!] He supposed that the hon. Member rejoiced at that circumstance. The existence of the orders to which he had referred was inconsistent with true freedom, and had been found inconsistent with the preservation of peace and social order in countries where there were Protestants as well as Roman Catholics. He objected, therefore to this clause, as being in contravention of the Act of 1829, and as tending directly to legally establish in this free country those orders which, especially the Jesuits, had been expelled from time to time by every nation of Europe, whether Roman Catholic or Protestant, and this has taken place among countries which value or are seeking constitutional freedom, the instances reach to the present day.

MR. AYRTON

said, he thought the best plan would be to report progress, as no one seemed to understand the clause. The Courts of Chancery sometimes complained that Acts of Parliament were passed in terms of great obscurity, and therefore in such a matter he thought the greatest care should be taken to express the intention of the Legislature clearly and unmistakeably. The more he looked at the clause the less he understood it; and he therefore hoped the Attorney General would undertake to amend it, and let it be considered again on a future occasion.

MR. MONSELL

said, that the result of postponing the measure from night to night, would be that the Government would be compelled at the end of the Session, as they had done before, to pass a Continuance Bill for exemption from penalties. The measure was a very moderate one indeed. It did not cure superstitious uses, but merely provided that money left for a good use should not be confiscated when mixed up with a superstitious use. That was very scant justice, when it was remembered that the objects of these superstitious uses were intimately connected with a religion which was tolerated in this country, and professed by so many of our Roman Catholic fellow-subjects. He trusted the Committee would proceed with the clause.

MR. E. P. BOUVERIE

said, the clause undoubtedly was open to different interpretations, and he, therefore, thought that it should say simply what the Attorney General said it ought to say. To render it clear it seemed to require some such proviso as the following, "that no such last-mentioned trust, condition, or bequest, shall be hereby rendered valid or legal." He hoped that they would be able to avoid the necessity of a continuance Bill.

MR. PULLER

said, he should propose in Clause 1, line 15, to insert the words "or have been" with a view of giving the clause a retrospective operation, to a certain extent.

MR. NEWDEGATE

said, it was evident that hon. Members were not prepared to deal with the Question. He, therefore, would move that the Chairman should report progress.

MR. BOWYER

said, it must be clear to the Committee that the object of the hon. Member for North Warwickshire (Mr. Newdegate) was delay and nothing but delay. On the 4th of the next month the Act suspending the operations of the Charity Commissioners as regarded Roman Catholic Charities would expire, and there was therefore no time to lose. The Bill was one to amend the law relating to Charities; and it legalised nothing except what were charities within the Charitable Trusts Act of 1853; it left the question of supersti- tious uses entirely untouched. The clause had been framed by Mr. Stonor with great care, and he did not think it could be improved.

LORD JOHN MANNERS

said, that there appeared to be no great difference of opinion with regard to the object to be accomplished; but, as the phraseology of the clause was unsatisfactory to many hon. Members, he would suggest that the consideration of it should be postponed, and that the Attorney General should bring up upon the Report another clause carrying out the views on which all were agreed.

MR. WHALLEY

said, he differed from the hon. and learned Member for Dundalk as to the meaning of the clause, and he did not think it prudent to raise in that House a discussion respecting (to use the language of the clause) "the doctrine, discipline, canons, laws, and usages of the Roman Catholic Church." He saw no reason why there should be a special exemption of Roman Catholic Charities from the general law respecting charities.

MR. SPOONER

denied that his hon. Colleague (Mr. Newdegate) was anxious to delay the Bill beyond the time which might be necessary for the Attorney General to render the clause clearly expressive of the views of the Committee. Last year a Bill was brought in by the Government which entirely expressed those views, and he wished that it could be now proceeded with. That Bill provided that when charities were left for illegal and superstitious purposes the intention of the founders should be carried out by the Ecclesiastical Commission, as far as might be, divested of the illegalities.

THE ATTORNEY GENERAL

said, he would endeavour to shape the clause into a simpler form of words.

MR. BUTT

suggested that the clause should be passed, subject to such modification which could be made on the Report. He thought the clause did not go far enough. He—Protestant as he was, and he called himself a strong Protestant—was prepared to sweep away all the restrictions connected with superstitious uses, and even to say that a gentleman might leave his property even for masses for the repose of his soul.

SIR GEORGE LEWIS

suggested that, as the Attorney General had proposed to modify the clause on the Report, it should be postponed, in order that the remainder of the clauses might be now passed through Committee.

MR. NEWDEGATE

denied that he wished to delay the Bill. He had repeatedly urged that the Bill should be proceeded with. All that he had insisted on was that it should not be passed behind the back of the House. He begged to withdraw his Amendment.

MR. WHALLEY

said, the law of the land had interfered to prevent Roman Catholics tying up in mortmain their property which might be devoted to useful purposes; but he again objected to the exception to the general law sought to be introduced by the Bill with regard to the doctrines, discipline, canons, laws, and usages of the Roman Catholic religion.

Motion for reporting Progress and the Amendment, by leave, withdrawn.

Clause negatived.

Clause 2 (no proceedings to be instituted as to dealings with Roman Catholic Charities prior to 2 & 3 Will. IV., c. 115).

MR. NEWDEGATE

said, he wished to ask whether this clause would not prevent all question or inquiry into the application of a charity to any purpose anterior to the Toleration Act, unless fraud could be proved. If so, it might be held to sanction the endowment of religious orders.

THE ATTORNEY GENERAL

, in reply, explained that the clause would exempt from investigation every application of property given to a Roman Catholic charity, even though it was given to one charity and applied to another, save and except the application was to a private use, or, in other words, a fraudulent application, which would render it liable to the full operation of the law.

MR. HENLEY

asked why a fraud should be protected when committed for a public purpose any more than for a private purpose?

THE ATTORNEY GENERAL

said, that when all Roman Catholic charities were illegal they were sometimes applied to a charitable purpose, though not that originally intended. The object of the clause was that they should not pry too closely into such application, provided only it was for a charitable purpose.

SIR FRANCIS GOLDSMID

said, he wished to insert, after the word "religion," the words "which took place."

Amendment proposed, in page 2, line 3, after the word "religion," to insert the words "which took place.'

Question proposed, "That those words be there inserted."

MR NEWDEGATE

said, he would move that the Chairman be ordered to report progress.

SIR GEORGE LEWIS

said, he thought that after the first clause had been postponed there could be no objection to passing the second clause before reporting progress.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."

The Committee divided:—Ayes 14; Noes 66: Majority 52.

Original Question put, and agreed to.

MR. STEUART

said, it was impossible to ascertain the exact meaning of the Amendments proposed, and it would, therefore, be better to report progress at once.

MR. ADDERLEY

opposed the Motion.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."

The Committee divided:—Ayes 16; Noes 50; Majority 34.

MR. ADDERLEY

said, the effect of the clause would be to exempt Roman Catholic charities from any proceedings whatever. He thought that any fraudulent misapplication of a charity to any private purpose, whether to or by a trustee, ought to be subject to proceedings, and he should propose to insert the words "to any private use or purpose."

THE ATTORNEY GENERAL

suggested that the right hon. Gentleman should alter his Amendment so as to read "to any private use or purposes not being charitable."

MR. ADDERLEY

accepted the suggestion of the hon. and learned Gentleman.

Amendment proposed, In page 2, lines 8, to leave out the words 'to the private use or purposes of any trustee,' in order to insert the words 'any private use or purpose not being charitable.'

—instead thereof.

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

MR. WHALLEY

proposed that, as so little advance was being made, the Chairman should be ordered to report progress.

LORD JOHN MANNERS

hoped the discussion on this clause would be continued.

Whereupon Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."

The Committee divided:—Ayes 9; Noes 47: Majority 38.

Motion made, and Question proposed,

"That the Clause, as amended, stand part of the Bill."

MR. NEWDEGATE

said, a settlement of this question might be very desirable, but the House ought not to be forced to accept such a crude settlement as was offered by this Bill. The Attorney General had declared that it was the result of a compromise, and that it was not such a measure as he himself would have sanctioned.

LORD LOVAINE

opposed the Motion for reporting progress.

MR. WHALLEY

said, it was rather inconsistent for Roman Catholic Members to object to the House considering the doctrines and usages of the Church of Borne when legislating for Roman Catholic charities. The hon. Member for North Warwickshire had informed the House that the doctrines and usages of the Church of Borne had proved the scourge of many of the countries of Europe.

MR. BOWYER

said, he rose to order. The hon. Member was not justified in using language offensive to Members of that House.

MR. NEWDEGATE

explained, that the hon. Member had attributed to him language he had not used. What he had said was, that there were religious orders of the Roman Catholic Church which had occasioned many of the civil and political convulsions of Europe.

MR. WHALLEY

(who spoke amid frequent interruptions) said, he would call on Roman Catholics to state the grounds on which they wished for an exceptional law. Before legislating on the subject the House ought to be satisfied that these charities did not come within the ancient law of mortmain.

MR. LESLIE

regretted that an attempt to alter the old laws of the country, by a measure of a very intricate character, should be persisted in at such an advanced hour (five minutes to two o'clock), and that the House should be almost forced to proceed by a clamour which he must say was marked by extreme indecency. As one clause had been already postponed it was but fair that the second should be likewise deferred.

SIR GEORGE LEWIS

said, as the House was to meet again at twelve o'clock it would, perhaps, be wise to agree to the Adjournment.

MR. MONSELL

said, it was evident that a settlement could be only effected in a conciliatory spirit. With this object he put it to his Friends at the other side whether it would not be well to defer the consideration of this clause.

Motion made, and Question put, "That the Chairman do now leave the Chair."

The Committee divided:—Ayes 9; Noes 47: Majority 38.

Question again proposed, "That the Clause, as amended, stand part of the Bill."

MR. STEUART moved that the Chairman report progress.

MR. NEWDEGATE

said, he thought the Minority had done enough to expose the character of the Bill; to exhibit that the majority, then present, could not be held in their present reduced numbers to represent the majority of the House, and therefore suggested that his hon. Friend should not persevere in his Amendment.

MR. WHALLEY

said, that on the other hand he was fighting out the question.

MR. STEUART

said, he would yield so far as to allow his Motion to be negatived if the Committee thought fit, but he would not withdraw it.

Motion made, and Question put, "That the Chairman do report Progress, and ask leave to sit again."

The Committee divided:—Ayes 7; Noes 46: Majority 39.

Clause as amended, ordered to stand part of the Bill.

The House resumed.

Committee report Progress; to sit again on Monday next.

House adjourned at a quarter before Four o'clock, in the morning.