HL Deb 27 April 1860 vol 158 cc212-5

Order of the Day for the Second Reading read.


, in moving the second reading of this Bill, said its object was to amend certain provisions of an Act commonly, but not very accurately, called the Mortmain Act. The object of that Act, passed in the 9th of George II., was to prevent dying or languishing persons from disposing of their landed estates by giving them to charity, it having been discovered that persons who had during their lives been neglectful of their duties to the poor were not unfrequently induced to endeavour to make compensation by giving away from their heirs and successors the property which they themselves had enjoyed. The Act forbade bequests of land to charitable uses by will, but it did not prevent persons from giving their lands to such purposes in their lifetime, provided such gift were made by deed executed at least twelve months before death, and provided the estate immediately passed out of the owner's possession. An exception was made in the case of lands which were purchased by the trustees of a charity with funds already in their possession—to these the twelve months condition did not apply. The Act itself had operated remarkably well; but there were certain provisions of a purely technical nature which were found extremely inconvenient. For instance, no conveyance of lands to charitable uses could be made, except by deed indented, as it was called, according to the old form; which entirely precluded any bequest of copyhold lands from taking place, as these could not be conveyed by any other mode than by surrender in the Lord's Court. In the Act it was also stipulated that in the case of any person bequeathing or parting with his land for charitable uses the conveyance should not be attended with any reservation whatever. This prevented a person who was willing to give land for a playground, or for the site of a schoolmaster's residence, from retaining even a right of way, which might be of great importance to the remainder of the property. There were other details of a similar character with which he need not trouble the House; he would merely state that the object of the present Bill was to retain all the provisions of the Mortmain Act which were matters of substance, and to get rid of those which were matters of form. In the Mortmain Act there were two classes of provisions—one relating to lands given, and the other to lands purchased. Different considerations applied to these two classes, but in both cases the Act provided that if anything were done contrary to the Act, the whole transaction should be null and void. With regard to lands given, this provision might be extremely reasonable and fair; but with regard to lands sold it operated in a way which was absurd, for the consequence was, that if the trustees of lands did not comply with the requisitions of the statute, the vendor, who had the purchase-money in his pocket, might claim the land also. In two or three instances—once in the reign of George IV. and twice in the present reign. Acts of Parliament had been passed making good conveyances where the trustees had not complied with the provisions of the Mortmain Act. He saw no objection, therefore, to making the remedy provided by this Bill retrospective in cases of purchase, though there was a great objection to making it retrospective in relation to lands which had been given. As the Bill stood it made the remedy retrospective in both cases, but in Committee be should propose to strike out the clause which made it retrospective in regard to lands given. In 1852 a Select Committee was appointed by the other House to consider the Mortmain Act, which recommended that, whatever else might be done, steps should be taken immediately to give a retrospective remedy in the case of purchased lands. Several Bills of this description had passed through the other House, with the general assent of all the legal authorities there, but up to the present time none of them had passed into law.

Moved, That the Bill be now read 2a.


said, that in his opinion this Bill ought not to receive the sanction of their Lordships. He believed that this Bill, or another with the same clauses, and under a different title, had been rejected by their Lordships no loss than four times. The Bill was evidently intended to repeal the Mortmain Act. But it would not remove the evils complained of, and if their Lordships passed the Bill they would be legislating in the dark. It seemed to him that if they assented to this measure they would render the law of mortmain wholly impracticable. He could not see why the Bill should have been brought before Parliament. Its purpose was to repeal the Statute of Mortmain, not directly but by a side wind; and therefore he begged to move, as an Amendment, that the Bill be read a second time that day six months.

Amendment moved to leave out "now" for the purpose of inserting "this day six months."


intimated that he should not press the Motion for the second reading of the Bill to a division.


said, he was glad that his noble and learned Friend did not intend to divide the House on the second reading; but he also rejoiced that his noble and learned Friend had introduced this subject, for it was one of infinite importance. The law of mortmain was in a most unsatisfactory state, and he wished extremely that his noble and learned Friend would take the whole matter in hand. It was a most difficult undertaking; but there was no Member of either House of Parliament who was more qualified to grapple with its difficulties than the noble and learned Lord. He (the Lord Chancellor) approved of the prospective clauses of the Bill; but, upon the whole, he thought it would be more prudent to postpone the further consideration of the measure.


agreed that there were considerable grievances to be redressed, and suggested that the best course would be to read the Bill a second time and refer it to a Select Committee.

On Question, That "now" stand part of the Motion? Resolved in the negative; and Bill to be read 2a this Day Six Months.