Lords Sitting of 10 July 1843

MINUTES.
BILLS.Public.—1a Episcopal Functions.
2a Grand Jury Presentment (Ireland): Defamation and Libel.
3a and passed:—Limitation of Actions (Ireland).
Private.—1a Northampton Improvement; Londonderry Bridge; Charles Joachim Hambro's Naturalization.
2a Tay Ferries; Inchbelly (Glasgow) Roads.
Reported.—M'Culloch's Estate.
3a and passed:—Oxnam's Estate (No.2); Liverpool Watering; Bolton Water Works.
PETITIONS PRESENTED. By Lord Campbell, from Edinburgh, and Leith, against the Charitable Pawn Offices Bill.—From Shepton Mallett, against the Abolition of Church Rates.—From the Parish Clerks of Manchester, fox a Clause in the Church Endowment Bill

CHURCH ENDOWMENTS.
The Bishop of Londonmoved the third reading of the Church Endowments Bill, and said he understood there would be some objections raised, but he should be best able to meet them when he heard them stated.
Lord Cottenhamsaid, that there had been substantial alterations in the bill since the second reading, to which he deemed it right to call their Lordships attention. The object proposed by the measure was to supply means for the endowment of additional ministers in large and crowded parishes, which for the purpose were to be divided into districts; and ministers appointed; were to have certain portions of the ecclesiastical dues alloted to them. The effect must be to diminish the profits of existing encumbencies, and therefore to injure the rights of patronage. There appeared no pro, vision for reserving to the patrons of the divided parishes the power of appointing, either [alone or in concurrence with the bishops, the additional clergymen. Nor was there any efficient arrangement for securing to the patrons adequate compensation for such injury to their legal rights. The result must be, that while at present a patron had the presentation to a living of a certain value, by means of this bill the living would lose half its value, and he would lose half his presentation. This was taking away legal rights now possessed by certain parties and conveying them to strangers, and of whom the measure contained no distinct description. It had been frequently arranged in cases like those which would be regulated by the bill, that the patron and the bishop should agree in the presentation; but not even this was provided by the bill before the House. Nothing, he thought, could justify such an interference with existing vested rights, unnecessary for the objects of the bill, and not included in the measure as presented to their Lordships previously to its present stage. The provisions for dividing of parishes were distinct from and independent of those for the endowment of districts, so that it was possible for the patron to lose half his right without the people being secured additional privileges. Another important objection was that the statutes of mort main were virtually disregarded and repealed so far as they related to the subject-matter of this bill, a change of very questionable propriety, and certainly not contained in the bill when

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it was read a second time. What he complained of was, that the bill deprived patrons and incumbents of their just and legal rights, but made no provision for securing them any compensation. The rights of the Crown were affected, but the Crown was represented in that House by her Majesty's Ministers; land the mere fact that the consent of the Crown was necessarily given before the bill could be proceeded in proved his point, namely, that all patrons and others, whose interests were affected by the bill, should have been consulted upon the matter.
The Bishop of Londonsaid, that if they waited till the consent of all the patrons was obtained, they might wait until the Greek kalends. He admitted that the patrons, by the law and constitution, had a vested right, but it so far differed from the property of other individuals, that it was in the nature of a trust. The hill did not touch the tithes; it merely took from the incumbent payment for duties which could not now be effectually performed; and it was no innovation, for their Lordships had already passed enactments affecting the vested rights of patrons and incumbents without making provision for compensation. Measures of this kind had been passed when the exigencies of the Church were not so great as now, and he hoped, that the objections of the noble and learned Lord would not be permitted to defeat this bill, which was one of the most important that had been introduced within his memory. The bill would, in fact, carry out the very principle upon which parishes were endowed in remote ages, when the population of those parishes did not exceed, perhaps, S00, and had now increased to 100,000 or 200,000. With regard to the alternate presentation by the Bishop and the Crown, the reason of that provision was simply that the Bishop and the Crown provided the endowments. He, in his own diocese of St. Paul's, had given up presentations to the amount of 12,000 l. a-year present value, but which, under the improved system, would be worth 30,000 l. or 40,000 l. a-year, and which he might have bestowed upon those he desired to favour, and was it to be said, that he, as Bishop of London, was to give up that amount of property, and yet not have the patronage of the new churches in his diocese? With regard to the effect produced by the bill upon the statute of mort main, the prin-
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ciple of the alteration was substantially contained in the bill as sent up from the House of Commons, and the amendments in committee had been merely made for the sake of perspicuity and clearness. When the Mort main Act passed, the state of society in this country was very different from that now existing, and every year the Legislature was called upon to pass bills excepting particular institutions from the operation of the statute, as in the case of St. George's Hospital, for which an act had been passed to enable a gentleman to leave it property to the amount of 20,000 l. a-year. He did not mean to say, that they should on this ground pass a general measure of this kind in favour of the Church; but the bill would afford the greatest security against abuse, by providing, that no endowment should take effect which had not been previously approved of by the ecclesiastical commissioners, and by her Majesty in council. The bill would only extend to the ecclesiastical commissioners of England and Wales the powers which had been possessed for a century by the governors of Queen Anne's bounty, who may receive tithes, money, estates, or hereditaments, to any amount, for the augmentation of small livings; and by the 43rd Geo. 3rd, the Mort main Act was not to apply to the governors of Queen Anne's bounty. The possession of these powers had been, there was not a shadow of doubt, most beneficial to the Church and the country. He could not think that any danger of abuse need he apprehended from granting the powers proposed to be given by the bill to the commissioners: but if they should do anything contrary to the law, there was the still further security of the assent of her Majesty in Council, who would be guided by the opinion of the law officers of the Crown as to whether it was advisable to give effect to the endowment or not. For these reasons he trusted their Lordships would not refuse their sanction to this bill, or materially alter its provisions, which would be most beneficial to the Church of England, and a source of spiritual and moral improvement to those populous districts which were now a shame and a disgrace to the country.
Lord Campbellsaid, there was one clause of the hill, the eleventh, to which, as it now stood, he must offer his most strenuous opposition, as interfering dangerously with the law of mort main. The

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9th George 2nd was passed, not to prevent the granting or holding of lands in mortmain, but to regulate the manner in which the grant should be made; and the powers granted to hospitals and other institutions, by particular bills, did not make any alteration in the manner in which the property was required to be granted. The object of that statute was to prevent bequests being made when the person was in extremis, and when there was very great danger of the testator being under undue influence, and induced to rob his family. Blackstone said:—
"As it was apprehended from recent experience, that persons on their death-beds might make large and improvident dispositions even for these good purposes, and defeat the political end of the statutes of mort main, it is, therefore, enacted by the statute 9th George 2nd, c. 36, that no lands or tenements, or money to be laid out thereon, shall be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months after its execution (except stocks in the public funds, which may be transferred within six months previous to the donor's death), and unless such gift be made to take effect immediately, and be without power of revocation; and that all other gifts shall be void."
As the 11th section of this bill now stood, if any person, from mistaken or fanatical motives, no doubt, went to a man in his last moments, and told him, that it was for the weal of his soul to dispose of the whole of his property in endowing a particular clergyman, instead of making a decent provision for those dependent on him, and if the sick man listened to his persuasions, the bequest would stand. The 9th George 2nd had been found to be a most salutary law, and had received the commendations of every Lord Chancellor. When he (Lord Campbell) was Attorney-general, he recollected that a bill was passed in one of the colonies to allow persons in extremis to endow a new church, whatever the religion might be. He had given his opinion against it on being consulted, and the royal assent was consequently refused. If the clause were restored to the shape in which it had come up from the House of Commons, it would still allow grants for the purpose of endowment under due regulations, and providing against improper influences.
Lord Cottenhamwas as anxious that
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this bill should come into operation as the right rev. Prelate himself, but he was also anxious that the interests of parties should be protected. If a parish was divided into two, it was proposed to take away half the patronage from the patron; but why should he not have the whole? Deal with private rights where it was absolutely necessary, but here was no necessity. Divide parishes where they were too large, but reserve the patronage to the patrons. The bill, as it came from the Commons, had no clause allowing a person to dispose of his lands by will; that had been introduced by their Lordships in committee and it not only repealed the Mort main Act, but the 9th George 2nd, which prescribed the manner in which land might be given in mort main. The 9th George 2nd remained in full force as the bill came from the Commons, but it was repealed as it now stood. He advised their Lordships before they gave their assent to this bill to take care that the interests of patrons and incumbents were not sacrificed to the discretion of the commissioners, without any necessity for it as respected the working of the bill.
Lord Broughamsaid, this seemed to him to be a very important question. The statute of 9th George 2nd, which this bill went directly to sweep away in all those cases in which it was most of all wanted, was one of the most important acts in the statute-book, and was looked upon as the very corner-stone of the law of mort main, and of devises for charitable uses. It was passed to remedy the grossest abuses; it had been eulogised by all judges, and the only doubt was whether it went far enough. This bill, however, not only enabled a man to leave his property to the Church by will when on his death-bed, but it did not require two witnesses or even one witness; he might do it by deed immediately before his death without enrolment. This was, therefore, as complete a repeal of the 9th of George 2nd, which had been praised by all the judges, as if that act had never passed, and in favour of the Church, leaving those very persons, hypochondriacs and others, whom it was the object of the act to secure, unprotected. The universities of Oxford and Cambridge, the schools of Eton and Winchester, were excepted from the 9th George 2nd; all other hospitals, charities, and benevolent institutions were liable to the Mort main Act. This bill now made

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an inroad upon it in favour of the Church. He hoped their Lordships would not repeal the Mort main Act in this peculiar case. If the Mort main Act was to be repealed let it be done so that the bill should pass through all its stages. He did not think such an attempt upon the laws of this country had been made for the last century as this was. He should propose that the bill should stand over till next Session, and the judges' opinion should be taken upon it, instead of attempting, by one vote in the Lords, and one vote in the Commons, to make a greater alteration in the law than had been done for the last century. He would move that the word "will" be left out of the 11th clause, and that the words "within the provisions of the 9th of George 2nd," be introduced into it. He moved the amendment without the slightest desire to impede the hill, for the success of which he was as anxious as the right rev. Prelate, who had exerted himself in the matter in a most praiseworthy manner. The right rev. Prelate did not feel as lawyers did on the subject of the Mort main Act, but he (Lord Brougham) gave his hearty concurrence to the object of the measure.
The Lord Chancellorunderstood the object of the right rev. Prelate to be, to place the provisions of the bill on the footing of the statute of Anne, in which the words "by deed or will" were found. When the 9th George 2nd was passed, the Legislature was apprehensive that the act would interfere with the operation of the statute of Queen Anne, and added a distinct provision to obviate that consequence. The 43rd of George 3rd enacted that whereas the beneficial effect of the statute of her late Majesty Queen Anne had been retarded by the 9th of George 2nd, so much of the act of Anne should remain in force, any act to the contrary notwithstanding. By the statute of Anne the power was given of disposing of real property "by deed or will," for the benefit of the Church, and the holders of poor livings. Afterwards the mort main was passed, and was found to impede materially the operation of the statute of' Anne. To obviate this the 43rd of George 3rd was passed, by which the statute of Anne was again set up. The object of the right rev. Prelate was, to give by this bill only such powers as were given by the statute of Anne, and with that view the words
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" by deed or will" had been introduced into the bill. Still he (the Lord Chancellor) believed that to make the clause effective, and make it correspond with preceding acts, some words must be added, and then this bill would have the same effect as the statute of Anne. In that case, he did not see that their Lordships could raise any objection to the bill.
Lord Broughamreally thought the bill was one that should not be proceeded with further, without some little delay to allow their Lordships time to consider the difficulties that had presented themselves in the course of this discussion. It was not right that they should be called on thus on a sudden to repeal the Mort main Act. He should like himself to have an opportunity of looking a little further into the matter before the bill was passed.
Debate adjourned, and House adjourned.